Promoting an Obscene Sexual Performance by a Child - NYPL § 263.10

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New York Penal Law § 263.10 addresses the serious offense of promoting an obscene sexual performance by a child. Facing charges related to the promotion of child pornography in New York can have far-reaching and devastating consequences for individuals accused of this serious offense. The legal penalties, which include the potential for imprisonment and mandatory registration as a sex offender, can cast a long shadow over one’s future. In such challenging circumstances, the guidance of a skilled New York City sex crimes lawyer from Lebedin Kofman LLP is invaluable.

Case Example

An undercover police officer went into an adult bookstore owned by Paul Ferber (New York v. Ferber [1982]) in New York City. Ferber sold the police officer video depicting two young boys masturbating. He was charged with two counts of violating New York Penal Law § 263.10 and New York Penal Law § 263.15.

Elements and Definitions of NY Penal Law § 263.10

Under NY Penal Law § 263.10, a person is guilty of promoting an obscene sexual performance by a child if he or she produces, directs, or promotes any obscene media or performance including a child under 17 years old engaged in sexual conduct.

In this context, “performance” refers to various forms of media like plays, dances, videos, photos, and digital images. It can also include any visual content shown to an audience.

“Sexual conduct” includes real or pretend sexual intercourse, whether it’s oral or anal. It also covers acts like bestiality, masturbation, sadomasochistic actions, or indecent exposure of private parts.

“Promotion” refers to actions such as obtaining, creating, issuing, selling, offering, giving, lending, sending, delivering, transferring, changing, publishing, sharing, circulating, spreading, displaying, or advertising, as well as agreeing or intending to carry out any of these activities.

Difference between NYPL § 263.10 and NYPL § 263.15

New York Penal Law (NYPL) § 263.10 and NYPL § 263.15 both pertain to offenses involving sexual performances by minors, but they address different aspects of these offenses.

Here are the key differences between these two statutes:

Nature of the Offense

NYPL § 263.10 (Promoting an Obscene Sexual Performance by a Child): This statute primarily deals with the promotion or involvement in the production of sexually explicit materials that are obscene and involve minors. It focuses on actions related to creating, distributing, or participating in the creation of such obscene material.
NYPL § 263.15 (Promoting a Sexual Performance by a Child): This statute also deals with the promotion of sexual performances by minors but does not require that the material be obscene. It prohibits promoting or participating in the production of any sexual performance involving a child, regardless of whether it meets the legal definition of obscenity.

Obscenity Requirement

NYPL § 263.10: Requires that the sexual performance involving a child be obscene for a conviction. Obscenity is judged according to the Miller v. California (1973) standard, which involves a three-pronged test.
NYPL § 263.15: Does not require that the sexual performance be obscene. It focuses on the promotion or participation in the production of any sexual performance by a child, making it a broader offense.

The key distinction between these statutes lies in the requirement of obscenity. NYPL § 263.10 addresses the promotion of obscene sexual performances by minors, while NYPL § 263.15 addresses the promotion of sexual performances by minors without the need for the material to be legally obscene. Both offenses are serious and can have severe legal consequences in New York.

Defenses

Defending against charges under NYPL § 263.10, requires a careful assessment of the specific circumstances surrounding the case. A skilled New York City sex crimes lawyer will tailor their defense strategy to the unique facts and legal nuances of each case. Some possible defenses that can be employed, depending on the circumstances, include:

Lack of Knowledge: The defendant may assert that they were unaware of the explicit and obscene nature of the material or that they did not know it involved minors. The lack of knowledge of these crucial elements could potentially weaken the prosecution’s case.
Lack of Intent: To be convicted under NYPL § 263.10, there must be proof of intent to promote an obscene sexual performance by a child. A defense could argue that the defendant did not have the intent to promote such material or that their involvement was accidental or unintentional.
Entrapment: In some cases, a defendant may argue that they were induced or coerced by law enforcement or another party into promoting the material. If evidence supports the claim of entrapment, it may be a valid defense.
Mistaken Identity: If there is a possibility of mistaken identity or that the defendant was wrongly identified as the individual responsible for promoting the material, this can be a defense to explore.

It’s essential to emphasize that the defense strategy employed by a New York City sex crimes lawyer will depend on the specific facts and circumstances of the case. Each case is unique, and a skilled attorney will thoroughly investigate the evidence, assess the strengths and weaknesses of the prosecution’s case, and craft a defense strategy tailored to the individual defendant’s situation. Legal representation is critical in cases involving NYPL § 263.10, as the consequences of a conviction can be severe.

Penalties

Given New York’s strict laws for offenses involving child pornography, a conviction under New York Penal Law § 263.10 for promoting an obscene sexual performance by a child results in serious consequences.

Classified as a Class D felony, this offense can lead to imprisonment for up to 7 years, significantly impacting one’s personal freedom and future prospects. Additionally, under the New York Sex Offenders Registration Act, those convicted are subject to mandatory registration as sex offenders, requiring compliance with the state’s strict registration requirements, including providing personal information and potentially facing community notification. The court may also impose fines and probation as part of the sentence, further compounding the legal and financial burdens. Given the severe penalties, it is imperative for individuals facing such charges to secure skilled legal representation to navigate the legal process and work toward the best possible outcome in their case.

NYPL § 263.10: Promoting an Obscene Sexual Performance by a Child

A person is guilty of promoting an obscene sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any obscene performance which includes sexual conduct by a child less than seventeen years of age.

Promoting an obscene sexual performance by a child is a class D felony.

Getting Legal Assistance from a Top-Rated Manhattan Sex Crimes Lawyer

Facing charges related to the promotion of child pornography in New York is an incredibly serious matter with potentially devastating consequences. The legal penalties, including imprisonment and mandatory registration as a sex offender, can have lifelong implications. You don’t have to face these challenges alone.

At Lebedin Kofman LLP, we understand the gravity of these charges and are committed to providing quality legal representation and advocacy. Our experienced New York City sex crimes lawyers have a proven track record of defending clients in even the most complex cases. We can meticulously investigate the details of your situation, build a tailored defense strategy, and tirelessly advocate on your behalf.

Your future matters, and we are here to help you navigate the legal system, protect your rights, and seek the best possible outcome for your case. If you or someone you know is facing charges related to child pornography, take action today.

Contact Lebedin Kofman LLP today at (646) 663-4430 for a confidential consultation and let us stand by your side as you face these serious allegations. We serve a wide range of locations around Manhattan and Nassau County, Long Island.

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