PEOPLE v. BIMONTE (2003)

Judgment of conviction affirmed.

Defendant was charged with two counts of attempted possession of a sexual performance by a child (Penal Law §§ 1l0.00, 263.16) based upon two photographs which he took of his daughters, aged 5 and 7, while on vacation in Florida.   On this appeal, defendant, in essence, contends that the statute (Penal Law § 263.16) cannot be constitutionally applied to a parent who takes two nude photographs of his children, on a roll of film containing otherwise innocuous photographs, absent any evidence of an intent to distribute, publish or profit therefrom, or provide sexual gratification.   Inasmuch as the statute merely prohibits possession of a sexual performance by a child less than sixteen years of age without a showing of any such additional intent, we find said argument unpersuasive.   All that was necessary to support a conviction was for the jury to find that defendant, knowing their character and content, attempted to possess photographs depicting a lewd exhibition of the children's genitals (Penal Law § 263.00[3], [4] ).   After reviewing the record, it is our opinion that there was sufficient evidence to support the jury's finding of guilt beyond a reasonable doubt (see People v. Pinkoski, 300 A.D.2d 834, 752 N.Y.S.2d 421;  People v. Horner, 300 A.D.2d 841, 752 N.Y.S.2d 147;  see also U.S. v. Dost, 636 F.Supp. 828, affd. 813 F.2d 1231;  United States v. Wiegand, 812 F.2d 1239, cert. denied 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118;  see also New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113).   The other issues raised by defendant were considered and found to be without merit.

In my opinion, the court should have allowed defendant to establish the facts surrounding his divorce and custody proceedings.   The failure to allow said testimony deprived the jury of evidence from which it could determine whether or not the children were coached and/or coerced by defendant's former wife to testify that they were posed by defendant prior to his taking the subject photographs.   Said failure was highly prejudicial and may have unfairly influenced the jury's determination.   In the same vein, defendant should have been permitted to develop the facts surrounding the children's viewing of a certain movie at their mother's home and the influence said movie had on their behavior.   Had said testimony been presented to the jury, it may well have determined that the photographs did not, under the totality of the circumstances, constitute a “lewd exhibition of the genitals” (cf.  People v. Pinkoski, 300 A.D.2d 834, 752 N.Y.S.2d 421).

PESCE, P.J. and GOLIA, J., concur. PATTERSON, J., dissents in a separate memorandum.