SMITH, J.:

The primary issue is whether constitutional and statutory defenses should have been allowed during defendant's prosecution for possessing a sexual performance by a child. We hold that the defendant was properly convicted.

Defendant took his computer to a repair shop to replace the hard drive. While servicing the computer, a technician noticed that some of the graphic files had suspicious titles implying child pornography. Before defendant returned to retrieve his computer, the technician copied some of the files from defendant's hard drive. When the technician and two other employees viewed the copy, they found pictures of young children engaged in sexual activity with adults. Defendant was charged with two counts of possessing a sexual performance by a child (Penal Law § 263.16).[1] Before trial the People made a motion to preclude an affirmative defense (based on scientific use) pursuant to Penal Law § 235.15(1), and defendant moved to assert the defense at trial. The Trial Judge precluded the affirmative defense and refused to instruct the jury with respect to it.

At trial, defendant testified that he had a Master's Degree in Social Work, was a certified social worker, and had extensive experience in treating victims and offenders of child abuse. He stated that the Oneida County Deputy Commissioner of Mental Health invited him to join a work group formed to develop a treatment program for persons convicted of child pornography crimes. Defendant further testified that he possessed the child pornography in connection with his scientific research to develop treatment for persons transmitting child pornography on the Internet, explaining that he compiled the prohibited material by downloading files sent to him from individuals he communicated with in various chat rooms where child pornography was discussed.

Defendant requested a jury instruction on his affirmative defense that possession of child pornography is permissible for literary, artistic, scientific or educational purposes. Defendant also requested that the court charge the jury on the mistake of law defense set forth in Penal Law § 15.20(2)(a), asserting that he was operating under the mistaken belief that his conduct was legal. The court denied the requests.

Defendant was found guilty of two counts of possessing a sexual performance by a child and sentenced to five years probation, 550 hours of community service and a $1000 fine. The Appellate Division affirmed the conviction, stating that the scientific justification affirmative defense in Penal Law § 235.15(1) "applies only to obscenity prosecutions and prosecutions under Penal Law § 235.21(3) and thus does not apply here,” and that the mistake of law defense set forth in Penal Law § 15.20(2)(a) was also inapplicable. The Appellate Division further held that "graphic images stored in defendant's computer were either photographs that were converted to digital images by a scanner or taken by a digital camera" (264 2 105, 110). A Judge of this Court granted defendant leave to appeal.

On this appeal, defendant contends that because he downloaded the prohibited material for scientific research purposes, he was constitutionally entitled to invoke a “scientific justification” defense similar to that set forth in Penal Law § 235.15. Defendant further contends that he was entitled to a mistake of law defense as set forth in Penal Law § 15.20(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 § 4).

Penal Law § 263.16 provides a “person is guilty of possessing a sexual performance by a child when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age.” A performance is defined as “any play, motion picture, photograph or dance” or “any other visual representation exhibited before an audience” (Penal Law § 263.00[4]). Penal Law § 263.20 contains affirmative defenses applicable when a defendant in good faith reasonably believes that the persons depicted were over 16 years of age and when a person is engaged in certain specified occupations. Those defenses are not claimed here.

The defense claimed by defendant is found in Penal Law § 235.15(1). That section provides that in “any prosecution for obscenity, or disseminating indecent material to minors in the second degree in violation of subdivision three of section 235.21 of this article, it is an affirmative defense that the persons to whom allegedly obscene or indecent material was disseminated, or the audience to an allegedly obscene performance, consisted of persons or institutions having scientific, educational, governmental or other similar justification for possessing, disseminating or viewing the same.” Application of that affirmative defense, however, is expressly limited to the offenses stated in the statute--none of which are at issue here. Penal Law § 263.16 is neither an article 235 offense nor an obscenity statute. Whether the absence of such a defense renders the child pornography statute unconstitutional is the issue before us.

Defendant challenges his conviction as a violation of his First Amendment right of freedom of expression and his equal protection rights under the Federal and State constitutions. Defendant does not assert that the statute should be declared unconstitutional because it is facially overbroad, but rather asserts that the statute is overbroad as applied to him and other classes of people who may legitimately come into possession of pornography. Defendant also alleges that the trial court violated his due process rights when it refused to charge a defense set forth in Penal Law § 1).

In New York v Ferber (458 US 747), which upheld Penal Law § 263.15 (“Promoting a sexual performance by a child”), the Supreme Court concluded that child pornography is not protected by the First Amendment, explaining that when “a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment” (458 US at 764).

The First Amendment protects non-obscene sexually explicit material involving adults (Miller v California, 413 US 15, 24). The First Amendment, however, does not protect pornographic material involving children (Ferber, supra, 458 US at 756-764). States enjoy greater latitude in regulating child pornography because of the government's compelling interest in safeguarding its children. Indeed, the Supreme Court in Ferber addressed this very issue when it decided the constitutionality of Penal Law § 263.15. The Ferber Court recognized that “a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. 'It is irrelevant to the child [who has been abused] whether or not the material * * * has a literary, artistic, political or social value'” (Ferber, 458 US at 761 [ citations omitted]). Accordingly, because of the State's compelling interest in protecting its children, the Ferber Court concluded that the possible danger of infringement on serious literary, artistic, scientific or educational works did not render the statute unconstitutionally overbroad.

In Osborne v Ohio (495 US 103), the Supreme Court upheld a State's authority to prohibit mere possession of child pornography. While that statute did contain exceptions for literary, educational and scientific purposes, nothing in the Supreme Court's opinion indicated that these limitations were required (see also, United States v Matthews, 209 F3d 338 [4^th Cir], cert denied 121 S. Ct. 260); State of Washington v Williams, 1998 WL 808007 [Wash App Div 1].

Osborne reiterated the Supreme Court's concern, articulated in Ferber, that the State has an interest in stamping out child pornography. Noting that the Ohio statute on its face prohibited the possession of nude photographs and that nudity, without more, was constitutionally protected, the Court rejected Osborne's overbreadth challenge because the Ohio Supreme Court had construed the statute as prohibiting nudity “where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals” (495 US at 113). In the present case, sexual performance includes “sexual conduct by a child less than sixteen years of age” (Penal Law § 263.00[1]) and sexual conduct “means actual or simulated sexual intercourse, deviate sexual intercourse, sexual beastiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals” (Penal Law § 263.00([3]). Thus, on its face, New York's child pornography statute is more narrowly drawn than the Ohio law reviewed in Osborne v Ohio (see, Ferber, supra, 458 US at 765). The Osborne court also rejected defendant's contention that Stanley v Georgia (394 US 557), in which the Court struck down a Georgia statute outlawing the private possession of obscene material, authorized the private possession of child pornography. Again, the State's interest in prohibiting the sexual exploitation of children was paramount. As the Supreme Court noted, while the State could not regulate the private thoughts and possessions of adults, it could attempt “to destroy a market for the exploitative use of children” (495 US at 109).[2]

Defendant's contention that his conviction is a violation of equal protection is also without merit. He argues that Penal Law § 263.16 violates the equal protection guaranteed by the State and Federal constitutions because it criminalizes possession of the same pornographic material that would otherwise be allowed under Penal Law article 235 if the pornography were classified as obscene. The New York statutory scheme, which treats the offenses differently, “need only be supported by some rational basis to survive constitutional scrutiny” (People v Walker, , 81 NY2d 661,668). The Ferber Court emphasized that the compelling State interest in eradicating child pornography and preventing child exploitation and abuse justified the prohibition against child pornography. Because defendant has made no showing that the statutory scheme is irrational or contrary to public policy, the equal protection argument must fail.