BRENTWOOD — A Superior Court judge has refused to toss out charges against a Timberlane Regional Middle School teacher accused of having child pornography on his home computer.

It's the second failed attempt by Scott Buatti, 43, of Newton to have charges or evidence against him dismissed.

Buatti's lawyer, Mark Sisti, argued that indictments against Buatti do not allege the children depicted in the photographs and movies were real children. Sisti wrote that the indictments did not describe the lewd acts the children are engaged in, and that authorities did not allow the defense to cross-examine the children depicted in the photos.

Prosecutors are not required to prove whether the children were real or prove the identity of the children in the pornography, according to a response by Assistant County Attorney Jerome Blanchard.

Judge Tina Nadeau agreed with prosecutors that there was enough evidence for a jury to decide the issue. Buatti is scheduled for trial in February on 10 counts of possession of child pornography.

The decision comes weeks after Nadeau denied a bid by Buatti to have the search of his home declared illegal. It was during that search that federal agents seized his home computer.

Immigration and Customs Enforcement agents went to Buatti's home after a two-year probe of a criminal organization, which operated a commercial child pornography Web site called the "Home Collection," according to a federal affidavit.

Buatti admitted to a pair of federal agents who came to his home Feb. 25, 2008, that he had used his computer to access free and paid Web sites showing adult and child pornography, the affidavit says. During that same interview, Buatti acknowledged that he had saved about a dozen images that may be considered child pornography, with the youngest children depicted being 8 or 9 years old, the affidavit says.

Buatti refused to turn over his computer to agents when they asked for it. But police, who ended up taking over the investigation, obtained a search warrant to seize it. ICE agents used a program that traced file-sharing to about 5,000 people who were accessing child pornography, court documents say.

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