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Possessing a Sexual Performance By A Child - NYPL § 263.16

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Child pornography offenses are among the most serious under New York law. Being charged with such offenses can have long-standing consequences on your life, both personally and professionally. It is a matter that demands the immediate attention of a skilled New York City sex crimes lawyer. One of the two most commonly known charges under New York law dealing with child pornography is New York Penal Law § 263.16: Possessing a sexual performance by a child. 


Case Example

Paul Fraser (People v. Fraser 2001) was charged with two counts of possession of child pornography under § 263.16. A computer repair technician discovered content on his computer with titles implying child pornography. The technician copied some of the files before handing over Fraser’s laptop and discovered photos of young children engaged in sexual conduct with adults and subsequently reported him to law enforcement.

Elements and Definitions

Under New York Penal Law § 263.16, a person is guilty of possessing a sexual performance by a child less than 16 years old if he or she, given the character and content of the material:

  • knowingly has the material in his or her possession or control
  • knowingly accesses the material with intent to view.

Performance, under this definition, means any media such as plays, dances, videos, and photos, including digital images. Performance can also mean any visual material presented before an audience.

The definition of sexual conduct under this law encompasses both actual and simulated sexual intercourse, performed orally or anally. It also includes bestiality, masturbation, sadomasochistic acts, or lewd exhibition of the genitals.

Possession means to exert control or dominion over tangible property such as film reels, recordings, or hard drives containing media. The element of intent in viewing material with child pornography can be validated with digital logs in the computer. However, simply viewing computer images of child pornography does not constitute possession or control over the media. As such, incidental access or viewing of such material may be protected by the law, and affirmative actions such as downloading, saving, or printing, may constitute dominion and control over the material.


The law dictates that a person must knowingly have the sexual performance in their control or knowingly access the media with the intent to view. The law also states that it is an affirmative defense if the defendant, in good faith, was in the reasonable assumption that the person in the sexual performance was over the age of 16 years old.  

As such, not knowing that you were in possession of media depicting a sexual performance by a child, not knowing that what you were viewing is media depicting a sexual performance by a child, or being misled through false representation that the performers in the media were over the age of 16 may be used as defenses against the charges.

As mentioned above, incidentally viewing a sexual performance by a child is not enough to be charged with possession of child pornography under the law as was also exhibited with the computer repair technicians not being charged in the provided case. Occupations that may be similarly protected include attorneys and members of law enforcement involved in an investigation.


New York has strict punishments for child pornography. Possessing a sexual performance by a child is a class E felony under New York law. A conviction can include a sentence of up to 4 years of imprisonment and up to 10 years probation. In addition, under the New York Sex Offenders Registration Act, persons convicted of possessing a sexual performance by a child will be placed on the sex offender registration list and subject to restrictions and monitoring under the law.

Possessing a Sexual Performance by a Child (New York Penal Law § 263.16)

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, or knowingly accesses with intent to view, any performance which includes sexual conduct by a child less than sixteen years of age.

Working with a Top-Rated New York City Sex Crimes Lawyer

In New York, child pornography offenses carry grave consequences that can irreversibly impact your life. Being charged with such offenses can lead to severe penalties, including imprisonment, registration as a sex offender, and a lasting stigma that can affect your personal and professional life.

It is crucial to take these charges seriously and to seek immediate legal representation from a skilled New York City sex crimes lawyer. At Lebedin Kofman LLP, our experienced attorneys are committed to defending your rights, building a strong defense, and working tirelessly to achieve the best possible outcome for your case.

Don’t face these charges alone; schedule a free consultation with our dedicated legal team today. Protect your future, your reputation, and your freedom by securing the legal advocacy and guidance you need.

Contact Lebedin Kofman LLP at (646) 663-4430 now to discuss your case, understand your options, and take the first step toward a stronger defense. Our attorneys serve Brooklyn, Manhattan, Queens, and Nassau County as well as other areas close to New York City.

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