
    [759 NYS2d 839]
    The People of the State of New York, Respondent, v Jeffrey Bimonte, Appellant.
    Supreme Court, Appellate Term, Second Department,
    February 11, 2003
    
      See, People v Bimonte, 187 Mise 2d 677.
    APPEARANCES OF COUNSEL
    
      Joseph T. Klempner, East Chatham, for appellant. Richard A. Brown, District Attorney, Kew Gardens 0John M. Castellano and Donna Aldea of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment of conviction affirmed.

Defendant was charged with two counts of attempted possession of a sexual performance by a child (Penal Law §§ 110.00, 263.16) based upon two photographs which he took of his daughters, aged 5 and 7, while on vacation in Florida. On this appeal, defendant, in essence, contends that the statute (Penal Law § 263.16) cannot be constitutionally applied to a parent who takes two nude photographs of his children, on a roll of film containing otherwise innocuous photographs, absent any evidence of an intent to distribute, publish or profit therefrom, or provide sexual gratification. Inasmuch as the statute merely prohibits possession of a sexual performance by a child less than 16 years of age without a showing of any such additional intent, we find said argument unpersuasive. All that was necessary to support a conviction was for the jury to find that defendant, knowing their character and content, attempted to possess photographs depicting a lewd exhibition of the children’s genitals (Penal Law § 263.00 [3], [4]). After reviewing the record, it is our opinion that there was sufficient evidence to support the jury’s finding of guilt beyond a reasonable doubt (see People v Pinkoski, 300 AD2d 834 [2002]; People v Horner, 300 AD2d 841 [2002]; see also United States v Dost, 636 F Supp 828 [1986], affd 813 F2d 1231 [1987]; United States v Wiegand, 812 F2d 1239 [1987], cert denied 484 US 856 [1987]; see also New York v Ferber, 458 US 747 [1982]). The other issues raised by defendant were considered and found to be without merit.

Patterson, J.,

dissents and votes to reverse the judgment of conviction and remand the matter for a new trial in the following memorandum: In my opinion, the court should have allowed defendant to establish the facts surrounding his divorce and custody proceedings. The failure to allow said testimony deprived the jury of evidence from which it could determine whether or not the children were coached and/or coerced by defendant’s former wife to testify that they were posed by defendant prior to his taking the subject photographs. Said failure was highly prejudicial and may have unfairly influenced the jury’s determination. In the same vein, defendant should have been permitted to develop the facts surrounding the children’s viewing of a certain movie at their mother’s home and the influence said movie had on their behavior. Had said testimony been presented to the jury, it may well have determined that the photographs did not, under the totality of the circumstances, constitute a “lewd exhibition of the genitals” (cf. People v Pinkoski, 300 AD2d 834 [2002]).

Pesce, P.J., and Golia, J., concur; Patterson, J., dissents in a separate memorandum.  