N.Y. Laws » CHAPTER Penal / PART Specific Offenses / TITLE Offenses Against Marriage, the Family, and the Welfare of Children and Incompetents / ARTICLE Sexual Performance By a Child
New York Consolidated Laws

N.Y. Penal Law § 263.00 (2026)

Definitions

✓ text as retrieved May 2026 (this copy records no edition or section history)
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§ 263.00 Definitions.
  As used in this article the following definitions shall apply:
  1. "Sexual performance" means any performance or part thereof which,
for purposes of section 263.16 of this article, includes sexual conduct
by a child less than sixteen years of age or, for purposes of section
263.05 or 263.15 of this article, includes sexual conduct by a child
less than seventeen years of age.
  2. "Obscene sexual performance" means any performance which, for
purposes of section 263.11 of this article, includes sexual conduct by a
child less than sixteen years of age or, for purposes of section 263.10
of this article, includes sexual conduct by a child less than seventeen
years of age, in any material which is obscene, as such term is defined
in section 235.00 of this chapter.
  3. "Sexual conduct" means actual or simulated vaginal sexual contact,
oral sexual contact, anal sexual contact, sexual bestiality,
masturbation, sado-masochistic abuse, or lewd exhibition of the
genitals.
  4. "Performance" means any play, motion picture, photograph or dance.
Performance also means any other visual representation exhibited before
an audience.
  5. "Promote" means to procure, manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmute, publish, distribute,
circulate, disseminate, present, exhibit or advertise, or to offer or
agree to do the same.
  6. "Simulated" means the explicit depiction of any of the conduct set
forth in subdivision three of this section which creates the appearance
of such conduct and which exhibits any uncovered portion of the breasts,
genitals or buttocks.
  7. "Oral sexual conduct" and "anal sexual conduct" mean the conduct
defined by subdivision two of section 130.00 of this chapter.
  8. "Sado-masochistic abuse" means the conduct defined in subdivision
five of section 235.20 of this chapter.
  9. For purposes of sections 263.10, 263.11, 263.15 and 263.16 of this
article, the terms "possession," "control" and "promotion" shall not
include conduct by an attorney when the performance was provided to such
attorney in relation to the representation of a person under
investigation or charged under this chapter or as a respondent pursuant
to the family court act, and is limited in use for the purpose of
representation for the period of such representation.
Notes of Decisions
Cited in 52 cases (11 in the last 5 years), 1986–2026 · leading case: People v. Kent, 970 N.E.2d 833 (N.Y. 2012).
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People v. Kent, 970 N.E.2d 833 (N.Y. 2012). · cites it 6× “” To “promote” means, among other things, “to procure” (Penal Law § 263.00 [5]), 3 itself defined as “obtain, acquire .”
People v. Fraser, 752 N.E.2d 244 (N.Y. 2001). · cites it 9× “20 (2) (a), and that in any event a visual image stored in a computer hard drive is not a “photograph” within the meaning of Penal Law § 263.00 (4). Penal Law § 263.16 provides a “person is guilty of possessing a sexual performance by a child when, knowing the character and…”
People v. Keyes, 552 N.E.2d 617 (N.Y. 1990). · cites it 9× “The Appellate Division rejected County Court’s narrow construction of the statute, concluding that the term "procure”, as used in the statutory definition of "promote” in Penal Law § 263.00 (5) included the acquisition of child pornography whether for one’s own personal use or…”
Osborne v. Ohio, 495 U.S. 103 (1990). · cites it 2× “, at 751 (quoting N. Y. Penal Law § 263.00(1) (McKinney 1980)).”
People v. Horner, 300 A.D.2d 841 (N.Y. App. Div. 3d Dep't 2002). · cites it 4× “In determining the motion, County Court inspected the grand jury minutes and all confiscated photographs and requested that the People select those photographs which it claimed depicted “sexual conduct” as set forth in Penal Law § 263.00 (3). The People selected four such…”
People v. Kent, 79 A.D.3d 52 (N.Y. App. Div. 2d Dep't 2010). · cites it 4× “A person is guilty of that crime when, “knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than seventeen years of age” (Penal Law § 263.”
Purcell v. Commonwealth, 149 S.W.3d 382 (Ky. 2004). · cites it 2× “700(3); N.Y. Penal Law § 263.00 (3); Ohio Rev.Code Ann.”
People v. Pinkoski, 300 A.D.2d 834 (N.Y. App. Div. 3d Dep't 2002). · cites it 3× “At the conclusion of all testimony, the grand jury was provided with a description of the charges, the elements of the crimes, definitions of all relevant terms as set forth in Penal Law § 263.”
People v. Bimonte, 187 Misc. 2d 677 (N.Y. City Crim. Ct. 2001). · cites it 3× “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.”
People v. Gibeault, 5 A.D.3d 952 (N.Y. App. Div. 3d Dep't 2004). · cites it 5× “The central question, then, is whether the teen’s behavior on the videotape constituted sexual conduct, an essential element of both crimes (see Penal Law § 263.00 [1]; §§ 263.05, 263.11).”
North v. Bd. of Examiners, 871 N.E.2d 1133 (N.Y. 2007). “” The term “performance” includes any motion picture or photograph (Penal Law § 263.00 [4]). Petitioner does not dispute that, like the federal crime, the New York offense criminalizes possession of computer images of children engaged in sexually explicit activity — the conduct…”
United States v. Frabizio, 459 F.3d 80 (1st Cir. 2006). “See N.Y. Penal Law § 263.00 (3) (McKinney 1980) (" 'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.”
Show all 52 citing cases →
N.Y. Penal Law § 263.00(1): 1 case
Osborne v. Ohio, 495 U.S. 103 (1990). “, at 751 (quoting N. Y. Penal Law § 263.00(1) (McKinney 1980)).”
N.Y. Penal Law § 263.00(3): 3 cases
Doe v. Wilhelmina Models, Inc., 226 A.D.3d 30 (N.Y. App. Div. 1st Dep't 2024).
Doe v. Wilhelmina Models, Inc., 226 A.D.3d 30 (N.Y. App. Div. 1st Dep't 2024).
Doe v. Wilhelmina Models, Inc., 229 A.D.3d 128 (N.Y. App. Div. 1st Dep't 2024).
N.Y. Penal Law § 263.00(6): 1 case
People v. Lewis, 246 A.D.3d 621 (N.Y. App. Div. 1st Dep't 2026).
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