NY Penal Law § 263.16: Possessing a sexual performance by a child

There are several offenses in the New York criminal code related to child pornography. Two such offenses are related to possessing child pornography. Under New York Penal Law § 263.16, you could be prosecuted for possessing a sexual performance by a child when you knowingly possess or control any performance which includes sexual conduct by a child who is less than 16 years old.

The term "performance" has a very broad definition, encompassing a play, movie, photography, dance, or any other visual representation exhibited before an audience. Sexual conduct refers to sexual intercourse, oral or anal sexual contact, masturbation, bestiality, sado-masochistic behavior, or lewd exhibition of genitals. The sexual conduct can be actual or simulated.

Michael Montague's computer was seized by the Town of Colonie Police Department (TCPD) after a computer repair technician reported that he found child pornography on the computer. The police obtained a search warrant to analyze the content of the computer and as a result Montague was arrested and charged with 26 counts of possessing a sexual performance by a child. People v. Montague, 2015 NY Slip Op 5721 (N.Y. App. Div., 2015)

1. Use of a child in a sexual performance: New York Penal Law § 263.05
2. Promoting an obscene sexual performance by a child: New York Penal Law § 263.10
3. Possessing an obscene sexual performance by a child: New York Penal Law § 263.11
4. Promoting a sexual performance by a child: New York Penal Law § 263.15

A defense to a charge of promoting a sexual performance by a child is that the person in fact was at least 16 years, or that you reasonably believed that the child was at least 16 years old.

In addition, if your job incidentally requires you to come in contact with child pornography, you cannot be charged with child pornography based on that contact. Examples of jobs that might cause you to incidentally come in contact with child pornography include librarian, a motion picture projectionist, stage employee, spotlight operator, ticket cashier, usher, concession stand attendant, or other non-managerial or non-supervisory theatre job.

Possessing a sexual performance by a child is a class E felony. If you are convicted your sentence may include up to 4 years in prison, a probation term of 10 years, and a substantial fine. In addition, possessing a sexual performance by a child is classified as a "registrable" offense under the New York Sex Offender Registration Act. This means that if you are convicted you will be placed on sex offender registration list for at least 20 years.

A person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.

Offenses related to child pornography are not just felonies, they are also registrable offenses under the Sex Offender Registration Act. This means that if you are convicted not only could you end up in prison you will also be placed on the sex offender registration act. The staff at the Law Offices of Stephen Bilkis & Associates has years of experience successfully defending clients in New York criminal courts who have been charged with child pornography as well as sexual assault, child endangerment, harassment, menacing, and reckless endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of larceny in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.