People v. Gibeault

Cardona, P.J. (dissenting).

I find that the teen in question engaged in sexual conduct proscribed by the two statutes at issue. Therefore, I must respectfully dissent and, accordingly, would affirm the judgment of conviction.

First, I disagree with the conclusion that the visual depictions of the teen’s exposed penis, “for a fraction of a second,” are not lewd and, therefore, do not constitute sexual conduct. Certain of the depictions, particularly those near the end of the videotape, are of considerably greater duration. Furthermore, I do not read People v Horner (300 AD2d 841 [2002]) as…