NY Penal Law § 263.16: Possessing a Sexual Performance by a Child
Overview of Child Pornography Offenses in New York
There are numerous offenses in the New York criminal code that deal with child pornography. Two of these offenses are related to having child pornography in your possession. You could be prosecuted under New York Penal Law § 263.16 for possessing a sexual performance by a child when you consciously possess or control any performance which displays sexual conduct by a child who is younger than 16 years old.
Key Definitions Under the Statute
What Constitutes a “Performance”
In the criminal code, the term “performance” has a rather broad definition. It encompasses a play, a movie, photography, dance show, or any other visual representation that is exhibited before an audience.
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(212) 300-5196What Constitutes “Sexual Conduct”
The sexual conduct referred to can be actual sexual activity. Additionally, simulated sexual activity is also prohibited by this law. Sexual conduct refers to sexual intercourse, oral or anal sexual contact, masturbation, sado-masochistic behavior, bestiality, or lewd exhibition of genitals.
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A college student discovered that a former roommate had been using their shared computer to download illegal images of minors, and now law enforcement has seized the device during an investigation. The student is terrified because the computer is registered in their name and contains files they never knew existed.
Can I be charged under NY Penal Law § 263.16 for child pornography found on a computer I own even if I never downloaded or viewed those files?
Under NY Penal Law § 263.16, the prosecution must prove that you knowingly and consciously possessed or controlled a sexual performance by a child — mere ownership of the device alone is not sufficient for a conviction. The key legal element is whether you were aware of the illicit material's presence on your computer, which is why a forensic analysis of user activity, login credentials, and file access history becomes critical to your defense. If the evidence shows you never accessed, downloaded, or viewed those files, a strong argument can be made that you lacked the requisite knowledge and intent. Given the serious nature of this class E felony charge, which carries up to four years in prison, you need experienced legal counsel immediately to protect your rights and challenge the prosecution's theory of knowing possession.
This is general information only. Contact us for advice specific to your situation.
