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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision

People v. Fraser

The defendant appealed a conviction for possessing a sexual performance by a child, arguing that a computer image is not a 'photograph' under Penal Law § 263.00 (4) and that the court erred in denying affirmative and justification defenses. The New York court affirmed the conviction, holding that a 'photograph' includes a computer graphic image, aligning with legislative intent to eradicate child pornography in all forms. The court also rejected the defendant's argument for a 'scientific, educational, or governmental purpose' affirmative defense, stating it only applies to obscenity prosecutions, not child pornography possession. Furthermore, the court dismissed the defendant's equal protection and mistake of law arguments, emphasizing the compelling state interest in protecting children over any alleged scientific value of child pornography.

Child pornographyComputer graphic imageStatutory interpretationPenal Law § 263.16Affirmative defenseJustification defenseMistake of lawFirst AmendmentEqual protectionAppellate review
References
10
Case No. MISSING
Regular Panel Decision

United States v. Boffardi

The defendant, Patsy Boffardi, was indicted for violating 18 U.S.C. § 2252(a)(2) by knowingly receiving child pornography, an offense that arose from Project Looking Glass, a postal inspection service operation. Boffardi was identified from a customer list, responded to undercover solicitations, and ordered child pornography, leading to a controlled delivery and the execution of a search warrant at his home. He subsequently moved to dismiss the indictment and suppress certain statements and seized evidence, primarily arguing selective prosecution based on the possession of other child pornography and an improperly obtained search warrant. The court, presided over by District Judge Goettel, denied all of Boffardi's motions. The judge found that the prosecution's criteria for selection were based on legitimate procedural considerations, not impermissible selective prosecution, and upheld the validity of the anticipatory search warrant.

Child PornographyEntrapmentSelective ProsecutionFirst AmendmentFourth AmendmentPrivacy RightsSearch WarrantControlled DeliverySting OperationPredisposition
References
15
Case No. MISSING
Regular Panel Decision
Apr 09, 2014

People v. Sczerbaniewicz

The defendant appealed an order from Onondaga County Court, which classified him as a level three risk under the Sex Offender Registration Act. Despite the Board of Examiners of Sex Offenders initially recommending a level one risk with an override to level three, the County Court found an upward departure to level three warranted. The appellate court affirmed this decision, citing clear and convincing evidence from the defendant's case summary, including his arrest for attempting to purchase child pornography and possession of over 1,500 child pornography images. The court also rejected the defendant's contention for a downward departure, concluding that aggravating factors outweighed any mitigating circumstances.

Sex Offender Registration ActSORARisk AssessmentUpward DepartureChild PornographyAggravating CircumstancesMitigating FactorsAppellate ReviewOnondaga CountyLevel Three Risk
References
6
Case No. Court File No. 73
Regular Panel Decision
Sep 27, 2007

United States v. McElheney

This Memorandum and Order details the Court's reasoning for imposing a 135-month sentence on Dr. Norman Earl McElheney for receiving child pornography. Chief Judge Curtis L. Collier outlined the federal sentencing methodology, adhering to advisory Sentencing Guidelines and considering 18 U.S.C. § 3553(a) factors. The defendant, an orthopedic surgeon, was found with numerous child pornography images and videos on his work and home computers and had attempted to obstruct justice. The Court rejected arguments for a downward departure or variance, emphasizing the seriousness of the offense, the need for deterrence, and the protection of the public due to McElheney's assessed moderate to high risk of reoffending, despite his expressed remorse and acceptance of responsibility.

Sentencing Guidelines (USSG)Child Pornography OffenseFederal Criminal SentencingDownward Departure MotionSentencing Variance Arguments18 U.S.C. § 3553(a) FactorsBooker Decision (Advisory Guidelines)Eighth Amendment ChallengeDue Process Violation ClaimRecidivism Risk Assessment
References
62
Case No. MISSING
Regular Panel Decision
Mar 23, 2016

United States v. E.L.

Defendant E.L. pled guilty to one count of possession of child pornography. Despite United States Sentencing Guidelines recommending 51 to 63 months imprisonment, Judge Jack B. Weinstein imposed a non-incarceratory sentence of five years of probation with strict conditions. This decision was largely based on extensive medical and expert testimony, which indicated that E.L. poses an almost zero risk of re-offending, especially with his ongoing participation in psychological and sex offender treatment. The court highlighted the significant negative impact incarceration would have on E.L.'s family and his progress in treatment, while emphasizing the importance of individualized sentencing assessments. This ruling also aligned with broader concerns from the Sentencing Commission and various courts regarding the severity and applicability of child pornography guidelines for non-production offenses.

Child pornographySentencingProbation18 U.S.C. § 3553(a)United States Sentencing GuidelinesSex offender treatmentRecidivism riskForensic psychiatryObsessive-compulsive disorder (OCD)Depression
References
43
Case No. KA 14-00721
Regular Panel Decision
Mar 20, 2015

SCZERBANIEWICZ, THOMAS, PEOPLE v

The case involves an appeal by Thomas Sczerbaniewicz from an Onondaga County Court order classifying him as a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). The Board of Examiners of Sex Offenders initially recommended a level one risk but applied an override to level three due to a diagnosed psychological abnormality impacting impulse control. The County Court, while not applying the override, determined an upward departure to level three was warranted based on aggravating circumstances. The Appellate Division, Fourth Judicial Department, unanimously affirmed the order, finding clear and convincing evidence that aggravating circumstances, such as the defendant's involvement in a child pornography ring, possession of over 1,500 child pornography images, and admitted fantasies in prison, justified the upward departure. The court also rejected the defendant's request for a downward departure, concluding that his cited mitigating factors were outweighed by the aggravating circumstances.

Sex Offender Registration ActSORARisk AssessmentUpward DepartureChild PornographyPsychological AbnormalityAggravating CircumstancesDownward DepartureAppellate ReviewCriminal Law
References
8
Case No. MISSING
Regular Panel Decision

Darin J. v. Tylena S.

The case concerns an appeal from a Family Court order regarding child neglect. Petitioner Darin J. and Chenango County Department of Social Services filed petitions alleging respondent John K. exposed minor children to pornography, leading to a neglect adjudication against him and a modification of visitation rights for respondent Tylena S. (the mother). Tylena S. and John K. appealed this decision. Their appellate counsel sought to be relieved, claiming no non-frivolous issues existed, but the appellate court identified several such issues. Consequently, the appellate decision is withheld, counsels' applications to be relieved are granted, and new counsel will be assigned to address the identified issues.

Child NeglectFamily Court ActVisitation RightsOrder of ProtectionAppellate ReviewCounsel AssignmentNon-Frivolous IssuesSufficiency of EvidenceFamily AssessmentPornography Exposure
References
5
Case No. 2023 NY Slip Op 05294 [220 AD3d 1078]
Regular Panel Decision
Oct 19, 2023

Matter of Bonnie FF. (Marie VV.)

This case concerns an appeal from Family Court orders that adjudicated Bonnie FF. and other children as neglected. The Commissioner of Social Services of Chemung County initiated the proceeding against Marie VV. (mother) and Harold W. (father), alleging excessive corporal punishment, exposure to pornography and sexual acts, and domestic violence. The Family Court found the children neglected, a decision challenged by the parents on appeal. The Appellate Division, Third Department, affirmed the Family Court's findings of neglect, concluding they were supported by a sound and substantial basis in the record. However, the court reversed one order and remitted the matter to Family Court to remove references to testimony that had not been admitted into evidence.

NeglectChild ProtectionFamily LawChild AbuseCorporal PunishmentDomestic ViolenceAppellate ReviewFamily Court ActCredibilityEvidence
References
14
Case No. MISSING
Regular Panel Decision

Barbetta v. Chemlawn Services Corp.

Plaintiff Joanne Barbetta sued Chemlawn Services Corporation, alleging sexual harassment and a hostile work environment under Title VII and New York state laws. Chemlawn moved for summary judgment. The court declined pendent jurisdiction over the state law claims, granting summary judgment for Chemlawn on those. However, the court denied Chemlawn's motion for summary judgment on the Title VII claim, finding exhaustion of administrative remedies and substantial factual questions regarding constructive discharge and the hostile work environment. The court ruled that continued employment did not necessarily negate constructive discharge and that evidence of workplace pornography and offensive conduct was sufficient to proceed to trial on the hostile environment claim.

Sexual HarassmentHostile Work EnvironmentConstructive DischargeSummary JudgmentTitle VIINew York Human Rights LawPendent JurisdictionAdministrative RemediesEEOCSexual Discrimination
References
13
Case No. 2021 NY Slip Op 06013 [199 AD3d 1080]
Regular Panel Decision
Nov 04, 2021

People v. Hoffman

Gary Hoffman appealed an order classifying him as a risk level three sex offender under the Sex Offender Registration Act (SORA). In 2006, Hoffman pleaded guilty to possession of child pornography. The Board of Examiners of Sex Offenders initially recommended a level one classification, with an upward modification to level two. County Court, however, assessed additional points for risk factors 3 (number of victims) and 7 (relationship to victim), resulting in a level three classification. The Appellate Division found sufficient evidence for the risk factor assessments but reversed and remitted the matter because the County Court failed to provide findings and conclusions regarding Hoffman's request for a downward departure from the presumptive risk level.

Sex Offender Registration ActSORARisk Assessment InstrumentChild PornographyDownward Departure RequestRisk Level ThreeAppellate ReviewUlster CountyCounty CourtAppellate Division Third Department
References
7
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