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A district attorney’s application of New York’s statute banning child pornography was constitutional in a case where a father was convicted of attempting to possess sexual pictures of his children, a Queens Criminal Court judge has ruled. Judge Charles J. Heffernan Jr., said that standards developed in federal cases should apply to New York’s statute, and that under that case law, the defendant was attempting to possess photos containing “lewd exhibition of the genitals” of children. Defense counsel to defendant Jeffrey D. Bimonte had argued that as applied to his client’s case, the statutory term “lewd exhibition of the genitals” was being applied in an overly broad fashion. In People v. Bimonte, 99Q057899, the defendant was convicted of attempting to possess two pictures of his daughters, ages 7 and 5, in poses exposing their genitals in a sexually suggestive manner. Bimonte’s lawyer, Joseph T. Klempner of East Chatham, N.Y., argued that the Queens prosecutor was applying the child pornography ban in an unconstitutional way. In 1982, the U.S. Supreme Court upheld New York’s ban on child pornography, but warned against widening the statute “by giving an expansive construction to the proscription on lewd exhibition[s] of the genitals.” At issue were two pictures intercepted by photograph developers at a Genovese drug store. The Genovese personnel refused to develop the pictures, and informed police of the contents of Bimonte’s roll of film. With no guidance in New York law to precisely define “lewd exhibition of the genitals,” Judge Heffernan turned to a 1986 federal prosecution in California that yielded a six-part test to spell out what makes a picture depicting a child’s genitals “lewd.” The key portions of the definition contained in United States v. Dost, 636 F.Supp. 828 (S.D. Cal. 1986) include whether the focal point of the picture is the child’s genitals, whether the setting of the photos is sexually suggestive and whether the picture is “intended or designed to elicit a sexual response in the viewer.” The other three factors are whether the child is wearing inappropriate clothing or is depicted in an unnatural pose, whether the child is nude or only partially clothed, and whether the photographs suggest a sexual coyness or willingness to engage in sexual activity. All six factors must be present to conclude that the depiction at issue is, under the statute, “lewd.” While it has been adopted in several federal and state courts in the United States, the Dost criteria have not been formally stated as a part of New York law in a reported case. The Dost test was developed, Judge Heffernan pointed out, for prosecutors and courts to determine whether a photo is an innocent family photo, art or the victimization of the child. Any determination of lewdness under the Dost factors must necessarily be made on a case-by-case basis, Heffernan said. PHOTOGRAPHS IN QUESTION Applying the Dost factors in Bimonte’s case, Heffernan ruled that the photos that the defendant tried to possess were in sexually suggestive settings, with one posed in bed and the other on a stage. The poses depict the children, in one photo, with their heads down on the bed with their anuses exposed, and the other with legs spread, exposing their vaginas while reading books on a stage. “[B]asic common sense,” as well as the Dost tests, dictates a conclusion that the photographs in question constitute the “lewd exhibition of the genitals” of children as banned under New York law. “Those poses are foreign to most children in the course of normal, benign activity,” Heffernan wrote. He also said that the photos show a “sexual coyness, at a minimum,” thus fulfilling another component of the Dost test. Heffernan’s opinion did not state the sentence handed down in Bimonte’s case. The offense he was convicted of, attempted possession of a child sexual performance, is a Class A misdemeanor, punishable by up to one year imprisonment. Assistant District Attorney John Carroll handled the prosecution.

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