Opinion
July 10, 1980
Appeal from the Monroe County Court.
Present — Cardamone, J.P., Simons, Callahan, Doerr and Moule, JJ.
Order unanimously reversed and indictment reinstated. Memorandum: The defendant had been indicted for a violation of section 263.05 Penal of the Penal Law resulting from his having taken a number of Polaroid photographs of his 12-year-old niece in various degrees of undress and in various postures. County Court dismissed the indictment, holding that the evidence before the Grand Jury was not legally sufficient under the statute to establish that defendant had used his niece in a sexual performance. This was error. Performance is defined in subdivision 4 of section 263.00 Penal of the Penal Law as "any play, motion picture, photograph, or dance" (emphasis supplied). Consequently the taking of the photographs with which defendant has been charged is a performance under the Penal Law and punishable thereunder.