Court of Appeals orders new trial in child porn case

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New York state’s highest court has ordered a new trial in a child pornography case because of ineffective assistance by the defense attorney.

Defendant Diego Guerra was charged with 68 counts of promoting and possessing a sexual performance by a child, based on videos on a laptop found in his room.

In July 2017, police executed a search warrant in the building where Guerra lived. The building had 12 rented bedrooms with shared kitchens and bathrooms. Guerra shared one of the bedrooms with a roommate.

Police seized several electronic devices from the building, including Guerra’s laptop computer. Guerra told police that he found the laptop in the building’s garbage about two or three months earlier, and it was already connected to the building’s Wi-Fi network.

His first trial ended in a mistrial due to juror unavailability.

Before the second trial, the parties agreed to a stipulation concerning testimony about the evidence from police officers.

Guerra’s attorney “signed a stipulation that effectively conceded guilt,” Judge Caitlin J. Halligan wrote for the Court of Appeals.

Part of the stipulation stated that “whoever possessed the videos promoted a performance, which included sexual conduct by a child less than seventeen years of age with knowledge of the character and content of the videos.”

The stipulation also stated: “Whoever possessed these videos and images, knowingly had in his or her possession or control, or knowingly accessed with intent to view, a performance which included sexual conduct by a child less than sixteen years of age.”

When his lawyer realized her error, she expressly disclaimed any strategic explanation for the action and openly declared herself ineffective, according to the decision by the New York State Court of Appeals.

“We agree with the Appellate Division that the defendant received ineffective assistance, and we therefore affirm,” Halligan wrote.

The prosecution argued that the defendant was the person who shared and downloaded the videos and images, and that circumstantial evidence proved he had exclusively possessed the laptop since January 2017.

The defense contended that although the defendant possessed the laptop in July 2017, he had not exclusively possessed it, and someone else had used the laptop to possess and promote the CSAM without the defendant’s knowledge.

Guerra was convicted the defendant on all counts, but the Appellate Division reversed the verdict and ordered a new trial, holding that defense counsel was ineffective for agreeing to the stipulation.

The Appellate Division ruled that the stipulation essentially stated that possession of the laptop alone is tantamount to promoting a performance with knowledge of the character and content of the videos.

The Court explained that this “elimination of the requisite mens rea element undermined the defense theory that, although the defendant undisputedly owned the laptop, someone else in his high-occupancy house may have been responsible for the videos or images being placed on the laptop or being trafficked using the laptop.”

The Court concluded that the defense counsel’s error in signing the stipulation “was not part of any legal strategy or tactic.”

“Defense counsel’s decision to sign … the stipulation, considered against the totality of the circumstances of (this) particular case deprived the defendant of meaningful representation,” Halligan wrote.

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