Judge Barbara Kahn
Sparagano moved for an order under Criminal Procedure Law §240.40 requiring prosecutors to provide defense counsel reproductions of digital evidence allegedly containing child pornography. In a case of apparent first impression, the court opined if the act of providing counsel with copies of such material and his possession of same, constituted a crime, or was prohibited. Prosecutors contended they offered defense counsel the chance to view the materials at a police facility, but noted federal law under the Adam Walsh Child Protection and Safety Act prohibited the relinquishment of child pornography as long as prosecutors made the material reasonably available to defendant. The court rejected such interpretation here, agreeing with other jurisdictions which held the act was inapplicable to discovery in state criminal actions involving child pornography. It ruled the statute’s language clearly showed the legislature intended a defense attorney’s possession and control of child pornography to be non-criminal when it occurred during their representation of a defendant charged with these offenses. Thus, the court granted defendant’s motion subject to conditions of a protective order.
