D.A. Ordered to Turn Over Evidence of Child Porn

, New York Law Journal

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Suffolk County prosecutors have been ordered to turn over alleged child pornography to an attorney preparing a defense of his client. Peter Brill of Brill Legal Group in Hauppauge, who represents Vincent Sparagano, asked the court to order prosecutors to supply reproductions of the digital evidence. But the government insisted it only be made available at a police facility, claiming the release of the evidence outside the facility would constitute dissemination of child pornography.

In People v. Sparagano, 02295/2012, County Court Judge Barbara Kahn (See Profile) wrote, "What seemingly offends the People in this case is defense counsel's attempt to possess and control the materials at issue outside the confines of a law enforcement building. To the court, however, whether defense counsel is alone in a room owned by the government with these copies or is in the privacy of his own office is merely a question of geography." Kahn ordered the release be subject to a protective order.

Prosecutors pointed to the federal Adam Walsh Child Protection and Safety Act, which forbids the release of child pornography as long as the material is made reasonably available to the defendant. But Kahn held the federal law was "inapplicable to discovery in state criminal actions involving child pornography."

Instead, she cited a June 2012 amendment to laws against sexual performance by a child, Penal Law §263, which said "possession," "control" and "promotion" "shall not include conduct by an attorney when the performance was provided to such attorney in relation to the representation of a person under investigation or charged."

Kahn said "even a cursory review" of the law's wording showed lawmakers' intention that an attorney's possession of the material be noncriminal when connected to a defendant's representation.

Suffolk County assistant district attorney Eric Aboulafia appeared for the prosecution.

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