OPINION OF THE COURT
This case presents the question whether defendant’s motion
Introduction
On September 28, 2000, defendant was convicted after a jury trial of two counts of the class A misdemeanor of an attempt to commit the crime of possessing a sexual performance by a child (Penal Law §§ 110.00, 263.16). The theory advanced by the People, and apparently credited by the jury, is that defendant knowingly attempted to possess two photographs, each of which depicted a “sexual performance” under Penal Law § 263.00 (1), in the form of “sexual conduct” under Penal Law § 263.00 (3), in that they each contained a “lewd exhibition of the genitals” of his two daughters, who were 5 and 7 years old, respectively, when the photographs were taken.
The evidence which the People adduced at trial is that on September 13, 1999 defendant went to a Genovese Drug Store in Queens County , and presented a roll of film for developing. Genovese later developed the roll of film, revealing, among other photographs, one depicting two naked female children on a bed, each bending down with her face in a pillow, with her anus and vagina up, facing the camera; and another, depicting a frontal view of the same two children on a stage, naked from the waist down, with legs spread apart, affording a full exposure of their vaginas, while the children feigned reading books while wearing what appear to be theatrical sets of eyeglasses. The parties at trial concurred that the two children depicted in the photographs are defendant’s daughters, who were in fact 5 and 7 years old, respectively, when the photographs were shot by defendant in Florida in August 1999, and that defendant asked his daughters to pose for the photographs.
Pursuant to store policy, Genovese deemed the photographs to be such as might subject it to criminal liability, declined to develop the negatives for defendant, and instead gave them to the police. Defendant was subsequently arrested and prosecuted for the above crimes.
Defendant has filed a motion for the above relief, relying principally on his argument that even if otherwise constitutional, Penal Law § 263.16 is unconstitutional as applied to the
The Instant Motion
The statute governing this motion, CPL 330.30, reads in pertinent part as follows:
“At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
“1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.”
A court may deny such motion without a hearing if the moving papers do not allege any ground constituting a legal basis for the motion, or do not contain sworn allegations of all facts essential to support the motion (CPL 330.40 [2] [e] [i], [ii]). Defendant’s Position
Defendant begins with the familiar principle that a penal statute is void for vagueness when it (1) fails to adequately place the public on notice as to what specific conduct the statute proscribes, and (2) fails to provide proper guidance to the finder of fact in discharging its function. He argues that the void for vagueness principle takes on heightened significance when the statute at issue seeks to regulate and punish acts “at the edges of constitutionally-protected conduct.”
The crux of defendant’s argument lies in his interpretation of the cautionary language which the Court used in Ferber (supra) in noting the possibility that Penal Law § 263.15 — a statute identical in pertinent part to Penal Law § 263.16— might reach conduct which is constitutionally exempt from criminalization:
“While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic
Defendant urges that the instant situation, where he took a small number of nude photographs of his daughters, with no evidence that he intended to do anything with the photos other than to place them in the children’s scrapbooks, is a “perfect example of a New York court’s impermissibly widening ‘the possibly invalid reach of the statute by giving an expansive construction to the proscription on lewd exhibition [s] of the genitals.’ ”
The People’s Position
While the People concur that the Supreme Court in Ferber (supra) found a slight possibility that statutory language identical to that here engaged may impermissibly reach otherwise constitutionally protected forms of expression, they argue that the instant photographs do not involve expression possessing educational, scientific or artistic value. Rather, “[t]his case is about a man who undressed his children, posed them in a sexually provocative manner in an unmade bed, and then took photographs of their vaginas. A day later, he took them to an empty ‘rec room’ and repeated the same process on
The Legal Analysis
It is significant that defendant offers no case law to support his contention that Penal Law § 263.16, as applied to him on the instant facts, is unconstitutional. Rather, the thrust of his argument is a form of speculation that this case may violate the Supreme Court’s cautionary language in New York v Ferber (supra, at 773) that courts of this State not “widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on ‘lewd exhibition [s] of the genitals.’ ”
Thus, in determining whether the instant jury invalidly applied Penal Law § 263.16 to defendant, it is necessary to determine whether defendant’s conviction for attempted possession of the instant photographs of his daughters is the result of just such an impermissible construction.
As a starting point in this analysis, it must be noted that defendant is correct that the Penal Law of this State does not define either the term “lewd” or the element “lewd exhibition of the genitals” under Penal Law § 263.00 (3). As it happens, however, many Federal courts and those in other States have been called to interpret statutes containing elements similar or identical to “lewd exhibition of the genitals,” but also lacking a statutory definition thereof. It is helpful, therefore, to look to that corpus of decisional law. As developed below, that review yields a set of standards that have been widely applied nationally in evaluating whether a photograph of a child constitutes a “lewd exhibition of the genitals.”
Those norms were first articulated in United States v Dost (
The Dost factors are:
(2) whether the setting, of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
(3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
(4) whether the child is fully or partially clothed, or nude;
(5) whether the visual depiction suggests coyness or a willingness to engage in sexual activity; and
(6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
In addition to widespread adoption by Federal courts interpreting relevant provisions of the United States Code, the Dost test has been applied by the Supreme Courts of Illinois and Nebraska, as well as by other State appellate courts which have been called upon to determine whether a contested photograph qualifies as a “lewd exhibition of the genitals” under State statutes similar, though not identical, to Penal Law § 263.16. (People v Lamborn, 185 Ill 2d 585,
Under the Dost test, absent a statutory provision to the contrary, the trier of fact need not find that all of the six factors are present in order to conclude that there was a “lewd exhibition of the genitals.”
Applying those factors to the two photographs here at issue, this court is satisfied that there was no impermissibly “expansive construction to the proscription on lewd exhibition [s] of the genitals’ ” under Ferber (supra, at 773) in this case, and that the jury constitutionally applied Penal Law § 263.16 to defendant. In each photograph, the focal point is the genitals of defendant’s daughters: in one, the anus and, to a lesser degree, the vagina, of each child; in the other, the vaginas of both children. The setting in both photographs is sexually suggestive, in a place or pose generally associated with sexual activity. In one, the children are posed face down on a bed, with the anus of each child raised in a pose suggesting sexual activity; in the other, the children are posed on a stage with legs widely spread, vaginas exposed, with similar suggestiveness. Too, in both photographs the children are in inappropriate attire and posed in a manner that is without question unnatural. That is, in the photograph on the bed, the children are posed from the rear with the anus of each child raised to face the camera with the head of each child turned; in the second, the two children are posed in an obvious unnatural fashion, while frontally nude from the waist down with legs spread apart, seemingly reading books on a stage. Such poses are foreign to most children in the course of normal, benign activity. Also, as noted supra, both children are partially — and graphically — nude in both photographs.
Moreover, the conduct depicted in each photograph shows a sexual coyness, at a minimum, and perhaps even suggests a willingness to engage in sexual activity. Finally, it can be said that the conduct depicted in each photograph is intended or designed to elicit a sexual response in the viewer. In short, this court finds that under the Dost test, the jury lawfully concluded that the two photographs constitute lewd exhibitions of the
Conclusion
For the foregoing reasons, defendant’s motion for an order setting aside the jury’s verdict pursuant to CPL 330.30 (1) is denied in all respects.
[Portions of opinion omitted for purposes of publication.]
Notes
. Defendant initially also argued that Penal Law § 263.16 is void for vagueness in that it fails to set forth any meaningful standards as to the meaning of “lewd.” By his memorandum of law dated December 5, 2000, however, defendant concedes that Penal Law § 263.16 is not unconstitutional on its face.
. Defendant’s memorandum of law in support of the argument advanced in his CPL 330.30 motion that Penal Law § 263.16, if applied to the particular facts of this case, would be overbroad and void for vagueness, dated December 5, 2000, at 6. (Defendant’s Memorandum.)
. In Rabeck v New York (supra), the Court struck down as unconstitutionally vague section 484-i of the former Penal Law, which prohibited the sale of
In Miller v California (supra), defendant was prosecuted for the mass mailing of unsolicited obscene material.
In New York v Ferber (supra), the Court upheld Penal Law § 263.15 against a challenge that it was unconstitutional on its face. There the defendant was the proprietor of a bookstore specializing in “sexually oriented products.” He was charged with selling to an undercover police officer two films “devoted almost exclusively to depicting young boys masturbating.” Defendant was convicted of two counts of section 263.15. The conviction was affirmed by the Appellate Division without opinion (People v Ferber,
. Defendant’s Memorandum, at 7.
. Id., at 8.
. Penal Law § 263.15 defines the crime of promoting a sexual performance by a child as follows:
“A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age.”
Penal Law § 263.16 defines the crime of possessing a sexual performance by a child as follows:
“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.”
. Defendant’s Memorandum, at 11-12, citing Ferber, supra, at 774.
. Id., at 2.
. In support of that observation, the People cite the following language of the Court in Ferber (supra, at 758):
“Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating ‘child pornography.’ The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.”
. In 1984 Congress amended the existing law by enacting the Child Protection Act of 1984 (Pub L 98-292, 98 US Stat 204). One part of the amendment was to substitute the term “lascivious exhibition of the genitals” for “lewd exhibition of the genitals” in the definition of “sexually explicit conduct.” The change was made because the term “lewd” had been equated with “obscene” by some courts. Thus, Congress felt that this change would make it clear that an exhibition of a child’s genitals under that statute need not meet the obscenity standard to be unlawful. (See United States v Dost, supra, at 831.)
. The definition that the Dost court rejected is that found in United States v Nemuras (
. The District Court in Villard considered the following example in framing the question of whether a photograph not dissimilar to those at bar qualifies as a “lascivious exhibition” of genitals under 18 USC § 2255 (2) (E): “For example, consider a photograph depicting a young girl reclining or sitting on a bed, with a portion of her genitals exposed. Whether this visual depiction contains a ‘lascivious exhibition of the genitals’ will depend on other aspects of the photograph. If, for example, she is dressed in a sexually seductive manner, with her open legs in the foreground, the photograph would most likely constitute a lascivious exhibition of the genitals. The combined effect of the setting, attire, pose, and emphasis on the genitals is designed to elicit a sexual response in the viewer, albeit perhaps not the ‘average viewer’, but perhaps in the pedophile viewer. On the other hand, if the girl is wearing clothing appropriate for her age and is sitting in an ordinary way for her age, the visual depiction may not constitute a ‘lascivi
. For other applications of the Dost test, see United States v Carroll (
. United States v Dost, supra, at 832.
. While there is a dearth of New York case law on point, it is useful to consider two decisions. (See People v McIntrye,
, Defendant’s observation that there is no evidence that he intended to do anything with the photographs other than to place them in his daughters’ scrapbooks misses the relevance mark. Penal Law § 263.16 contains no element requiring proof of a defendant’s intent to use the depiction in any specific way or for any particular purpose. (See n 9, supra.)