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 limiting lewd depictions to only those which elicit a sexual response (id. at 843). In Horner, we found the six Dost factors (see United States v Dost, 636 F Supp 828 [1986], affd 813 F2d 1231 [1987]) instructive in determining what the Legislature meant by “lewd exhibition of the genitals” as a form of “sexual conduct” under Penal Law article 263 (People v Horner, supra at 843 n 1) and specifically noted that “all of [those] factors need not be present in order to” make that determination (id. at 843). Therefore, I read Horner to include those depictions where, as here, “ ‘the focal point ... is on the child’s genitalia’ ” and “ ‘[the] pose [is] generally associated with sexual activity’ ” (id. at 842-843, quoting United States v Dost, supra at 832).
Next, I disagree with the majority’s statement that the videotape does not depict the teen engaged in masturbation because sexual gratification is absent. Sexual gratification is not an element of sexual conduct under Penal Law article 263.* Notably, there are four different definitions of sexual conduct contained in each of four separate articles of the Penal Law (see People v Pinkoski, 300 AD2d 834, 837 n 3 [2002], lv denied 99 NY2d 631 [2003]) and none includes the element of sexual gratification. “Generally, we will not supply, by implication, a provision in a statute when it is reasonable to believe that its *956absence was intended by the Legislature. With a penal statute, it is further presumed that its terms are to ‘be construed according . . . [their] fair import ... to promote justice and effect the objects of the law’ ” (id. at 837, quoting Penal Law § 5.00 [citations omitted]). If the Legislature had intended to make sexual gratification an element of any of the offenses under Penal Law article 263, it could have done so just as it did when it defined “sexual contact” under Penal Law article 130 (see Penal Law § 130.00 [3]). Instead, the Legislature chose a broader definition for “sexual conduct” under Penal Law article 263 because its purpose was to eradicate the exploitation of children as subjects in sexual performances in all its forms (see People v Fraser, 96 NY2d 318, 327 [2001], cert denied 533 US 951 [2001]; People v Keyes, 75 NY2d 343, 348 [1990]; People v Gaito, 199 AD2d 615, 616 [1993], lv denied 83 NY2d 805 [1994]).
In my view, the child who is induced to lewdly exhibit his genitals and engage in a sexually explicit depiction of masturbation as shown on the videotape here, even in the context of “mugging for a camera” or “goofing off,” is no less sexually exploited than the child participant of commercially produced pornography. Because defendant’s conduct falls within the “plain and natural meaning of [the subject] statute[s],” it may be “punished as criminal” (People v Keyes, supra at 348). I find, therefore, that when viewed in the light most favorable to the People, “there is [a] valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial” and that every element of the crimes charged is established beyond a reasonable doubt (People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, having conducted a factual review, I conclude that the jury accorded the evidence the proper weight in arriving at its verdict (see CPL 470.15 [5]; People v Bleakley, supra at 495).
Ordered that the judgment is modified, on the law and the facts, by reversing defendant’s convictions of use of a child in a sexual performance and possessing an obscene sexual performance under counts one and three of the indictment; said counts dismissed; and, as so modified, affirmed.