New York Child Pornography Charges

New York child pornography charges are taken seriously. They can be punishable by probation, jail time and SORA Registration. The legal term for child pornography in New York is “Sexual Performance by a Child.”

Legal Definition of New York Sexual Performance by a Child

New York Penal Law Section 263.00(1) defines Sexual Performance by a Child as sexual conduct by a child less than 16 years of age. For the charges of

  • Use of a Child in a Sexual Performance (NY Penal Law 263.05), and
  • Promoting a Sexual Performance by a Child (NY Penal Law 263.15),

New York’s Sexual Performance by a Child also includes sexual conduct by a child less than 17 years of age.

Types of New York Child Pornography Charges

New York’s Child Pornography can be divided four categories into:

  • Possession of Child Pornography;
  • Promotion of Child Pornography;
  • Use of a Child in a Sexual Performance;
  • Facilitation of a Sexual Performance by a Child with Controlled Substance or Alcohol.

New York Possession of Child Pornography

New York has two charges relating to possession of child pornography. They Are

  • Possessing a Sexual Performance by a Child (PL 263.16), AND
  • Possessing an Obscene Sexual Performance by a Child (PL 263.11).

The difference in these two charges is the nature of the material possessed.

Difference Between NY Sexual Performance by a Child and NY Obscene Sexual Performance by a Child Explained

In New York, a sexual performance by a child involves sexual conduct by a child less than 16 years old (less than 17 years old for (1) New York Use of a Child in a Sexual performance and (2) Promoting a Sexual Performance by a Child. New York’s Obscene Sexual Performance is defined as:

  • Sexual conduct by a child less than 16 years old (17 for two above-described charges), AND
  • Obscene.
Definition of Obscene from New York Penal Law Section 235.00

New York Penal Law Section 230.00 defines a material or performance as “obscene” if:

1. An average person applying community standards of present time would find the main appeal of the material or performance is its excessive interest in sex, AND

2. The material depicts or describes in an obviously offensive manner actual or simulated:

  • Sexual intercourse
  • Criminal Sexual Act
  • Sexual Bestiality
  • Masturbation
  • Sadism
  • Masochism OR
  • Excretion or lewd exhibition of genitals

3. The material, considered in its entirety, lacks serious literary, artistic, political or scientific value.

New York Possessing a Sexual Performance by a Child (PL 263.16)

Under New York Penal Law 263.16, Possession of a Sexual Performance by a Child has the following elements:

1. Knowledge of character and content of material,
2. Possession or control or knowing access with intent to view,
3. Any performance which includes sexual conduct by a child less than 16 years of age.

Thus, under New York Law, possession of the sexual performance of the child does not require you to have a physical copy of the sexual performance by a child. Rather, accessing a website with intent to view such material is sufficient to satisfy the “possession” element of this charge.

Penalties and Sentencing for New York Possession of Sexual Performance by a Child

Under New York Law, Possessing a Sexual Performance by a Child is a class E felony. Therefore, this charge is punishable by 1 1/3 to 4 years jail time. However, probation and a conditional discharge are authorized sentences. Importantly, individuals convicted of Possession of Sexual Performance by a Child will have to register under Sex Offender Registration Act (SORA).

New York Possession an Obscene Sexual Performance by a Child (PL 263.11)

This New York Child Pornography Possession Charge is similar to the Possession of Sexual Performance by a Child, except the material possessed must be an obscene sexual performance. Specifically, the elements of New York’s Possession of Obscene Sexual Performance by a Child under Penal Law Section 263.11 are: 

1. Knowledge of character and content of material,
2. Possession or control or knowing access with intent to view,
3. Any obscene performance which includes sexual conduct by a child less than 16 years of age.
Definition of Possession an Obscene Sexual Performance by a Child
Penalties and Sentencing for NY Possession an Obscene Sexual Performance by a Child

This New York Child Pornography charge is a Class D non-violent felony. As such, it is punishable by 2 1/3 to 7 years in jail. However, sentences of conditional discharge and probation are also authorized. Additionally, individuals convicted of Possession of Obscene Sexual Performance are subject to SORA Registration.

Defenses to New York Possession of Child Pornography Charges

There are a number of defenses that apply to New York Child Pornography Charges. While these defenses may not necessarily secure an outright dismissal of all charges, they will definitely help get you a better plea offer or mitigate collateral consequences of your conviction.

Knowledge

One of the elements that the prosecutor has to prove is that your possession of child pornography. That means that in addition to possessing the file, you knew its contents. This can be established by the prosecutor in a number of different ways, such as:

  • Title of the video reflects the video contents i.e. “toddlers” “Lolita” “13 year olds”;
  • Forensic examination reveals when and how frequently the file was opened on your computer
  • Other videos of similar nature on your computer, in your physical possession. Thus making the defense of an accidental and inadvertent download improbable if not impossible.
  • Communications about child pornography – i.e. where to get it, how to share it, and any participation in file sharing grounds.

If the file has an innocuous name and there is no other circumstantial evidence demonstrating that you have seen the video contents, or were somehow seeking to intentionally download the video, the prosecution may have a weak case for possession against you based on the lack of knowledge element.

Age

Another element that the prosecutor has to prove in New York Child Pornography cases is that the possession of the child pornography was “knowing.” It is an affirmative defense if you reasonably believe that the person appearing in the video is above the age of 16 (or 17 for some New York Child pornography charges).

This defense is generally only valid where the the individual in the video clearly appears to be over 16 or 17, especially if the other circumstances surrounding the video would indicate that you had no reason to believe that the individual appearing in the video was of age – i.e. obtaining the video through an adult website.

Possession in Normal Course of Employment

If you have viewed, downloaded or possessed child pornography lawfully in the course of your normal and lawful employment, you may have a defense to New York Child Pornography charges. For example, if you come across child pornography in the course of your work in any of these occupations, you may have an affirmative defense to New York Child pornography charges:

  • Librarian
  • Motion picture projectionist
  • Stage employee or spotlight operator
  • Cashier
  • Doorman
  • Usher
  • Candy stand attendant
  • Porter OR
  • Any other non-managerial or non-supervisory capacity in a motion picture theatre.

New York Promotion of Child Pornography

New York Child pornography charges also criminalize production, directing and distribution of child pornography. Collectively, in New York this type of conduct is called Promotion of Child Pornography. There are three charges relating to creation and distribution of child pornography in New York:

  • Use of a Child in a Sexual Performance (PL 263.05)
  • Promoting a Sexual Performance by a Child (PL 263.15)
  • Promoting an Obscene Sexual Performance by a Child (PL 263.10)

New York Use of a Child in a Sexual Performance (PL 263.05)

Under New York Law, it is a crime to employ, authorize, or induce a child under 17 years old to engage in a sexual performance. Additionally, it is a crime for a parent or a legal guardian to allow a child under 17 years old to participate in a sexual performance. Specifically, the elements of this New York Child Pornography Charge are: 

1. Knowledge of character and content
2. Employing, authorizing or inducing a child less than 17 years old OR while being the child's parent or legal guardian and consenting 
3. To the child's participation in a sexual performance.
Penalties and Sentencing for New York Use of a Child in a Sexual Performance

New York’s Use of a Child in a Sexual performance is a Class C non-felony. As such, it is punishable by 5 to 15 years in prison. In cases with mitigating circumstances, a sentence of a year or more may be imposed. However, unlike the previously discussed Class “D” and Class “E,” a conditional discharge or probation are not statutory authorized sentences. Individuals convicted of this charge are also subject to SORA Registration.

New York Promoting a Sexual Performance by a Child (PL 263.15)

Under New York law, producing, directing and promoting of a performance depicting sexual conduct by a child less than 17 years old is a felony. The all-encompassing name for this conduct is Promoting a Sexual Performance by a Child. The elements of this New York Child pornography charge are: 

1. Knowledge of character and content
2. Producing, directing, promoting of 
3. Any performance which includes sexual conduct by a child less than 17 years old.
Penalties and Sentencing for NY Promotion a Sexual Performance by a Child

Promoting a Sexual Performance by a Child is a Class D non-violent felony. As such, this charge is punishable by 2 1/3 to 7 years. However, sentences of conditional discharge or probation are permitted instead of jail time. Importantly, in addition to probation or jail time, individuals convicted of this charge are required to register under SORA.

New York Promoting an Obscene Sexual Performance by a Child (PL 263.10)

This charge is very similar to New York Promoting a Sexual Performance by a Child, the only difference is that this charge requires that the material be obscene sexual performance rather than sexual performance. The elements of New York’s Promoting an Obscene Sexual Performance by a Child are: 

1. Knowledge of character and content
2. Producing, directing, promoting of
3. Any obscene performance which includes sexual conduct by a child less than 17 years old.
Penalties and Sentencing for NY Promotion a Sexual Performance by a Child

Promoting an obscene sexual performance by a child is a Class D non-violent felony. Therefore, this charge is punishable by 2 1/3 to 7 years. However, sentences of conditional discharge or probation are permitted instead of jail time. Importantly, in addition to probation or jail time, individuals convicted of this charge are required to register under SORA.

New York Facilitation of a Sexual Performance by a Child with Controlled Substance or Alcohol

The most serious of all New York Child pornography charges is Facilitating a Sexual Performance by a Child With Controlled Substance or Alcohol (PL Section 263.30). This charge is a Class “B” Felony.

This New York charge prohibits knowing and unlawful administration of a controlled substance or alcohol to a person under the age of 17 without that person’s consent with the intent to commit a felony against them.

Example of NY Facilitation of a Sexual Performance by a Child with Controlled Substance or Alcohol

An example of NY Facilitation of Sexual Performance by a Child involves A giving B, a 15 year old, GHB (also known as a date rape drug), for the purpose of engaging in sexual conduct with B and recording it. A’s conduct would constitute Promoting a Sexual Performance by a Child in violation of Penal Law 263.10.

Elements of New York’s Facilitating a Sexual Performance by a Child With Alcohol or a Controlled Substance

The elements of New York’s Facilitating a Sexual Performance by a Child with Alcohol or a Controlled Substance are: 

1. Knowingly and unlawfully possession a controlled substance; 
2. Giving that substance to a person under the age of 17 without that person's knowledge; 
3. Intending to commit any of these felonies: (1) Use of a Child in a Sexual Performance (NY Penal Law 263.05), (2)Promoting a Sexual Performance by a Child (NY Penal Law 263.15), or (3) Promoting an Obscene Sexual Performance by a Child (NY Penal Law 263.10). 
4. Commits or attempts to commit such a crime against the person.

Penalties and Sentencing for New York’s Facilitating a Sexual Performance by a Child With Alcohol or a Controlled Substance

Under New York Law, Facilitating a Sexual Performance by a Child with Alcohol or a Controlled Substance is a Class B non-violent Felony. As such, this charge is punishable by 5 to 25 years. Additionally, this charge is subject to SORA Registration.

Difference Between New York State and Federal Child Pornography Charges

In addition to New York Child pornography charges, there are federal laws related to child pornography charges. Federal child pornography charges have higher sentences than New York Child pornography charges as many of the federal child porn charges have a 10 year mandatory minimum.

Generally, if the federal authorities (like the FBI) conduct an investigation and make an arrest, the case will be prosecuted by federal prosecutors. If it is the police department or a sheriff’s office that conducts the investigation and makes the arrest, the case will likely stay with the local District Attorney’s Office on the state level. However, some state child pornography investigations may be prosecuted on the federal level.

Under Federal, charges related to child pornography include the following:

  • Possession of Child Pornography 18 U.S.C. §2252A(a)(5)(B)
  • Distribution of Child Pornography 18 U.S.C. §2252A(a)(2)(A)
  • Receipt of Child Pornography 18 U.S.C. §2252A(a)(2)(A)
  • Trafficking of a Child 18 U.S.C. §1591(a)(1), (b)(1)
more about federal child pornography charges

Contact a Top Rated New York Child Pornography Criminal Defense Attorney

If you are facing New York child pornography charges, you need an experienced New York City criminal defense attorney by your side. Please call us at 212-729-9494 or contact us today to schedule your appointment.