OPINION OF THE COURT
Kupferman, J.The defendant, a practicing dentist, was convicted of two counts of sexual abuse in the first degree (Penal Law, § 130.65, subd 2) and sentenced to a term of four months’ imprisonment. He has been at liberty pursuant to a stay of execution of the judgment and sentence pending this appeal.
The original indictment had four counts of such sexual *137abuse, each involving a different complainant. A superseding indictment reduced it to three counts and amended the charge, and after a nonjury trial (Cropper, J.), defendant was convicted of two of the Counts No. 1—Carson, and No. 3— Beineix.
The basic charge is that defendant subjected each complainant to sexual contact while they were "incapable of consent by reason of being physically helpless”. We affirm the convictions. Two of my colleagues, as set forth, would reverse on Count 1 as to "sexual contact”, while one of them would reverse as to Count 3 on the search and seizure aspect of using an electronic camera and the making of a videotape.
Initially, we deal with two points on which there is no disagreement. While it was almost two years from the time of the defendant-appellant’s arrest until the trial, it cannot be said that there was undue delay or that the defendant was prejudiced thereby. This is so under applicable criteria (Barker v Wingo, 407 US 514; People v Taranovich, 37 NY2d 442, 445; People v Prosser, 309 NY 353, 360). The defendant relies on the specific provisions of CPL 30.30. However, in this well defended case (and this may well also be said with respect to defendant’s appeal), the delay was due to the various pretrial proceedings and motions, which cannot be charged to the People alone.
It is not contended that defendant falsely diagnosed the complainants’ dental conditions, or that they were persuaded against their will to use a procedure to avoid pain. In both cases, the tooth condition required dental surgery, and the sedation was in conformance with the patients’ desire to avoid pain. The condemned activity involved occurred during a resuscitation procedure. The defendant claimed that he was "ventilating” the patients after sedation and that, to the extent they contended sexual abuse, they were hallucinating.
There was sufficient evidence to sustain the determination by the trial court of guilt beyond a reasonable doubt. We therefore address the two remaining questions of importance here.
For Count 1, Carson, was the conduct of the defendant such as to subject the patient to sexual contact within the meaning of section 130.65 of the Penal Law? We are all in agreement that the complainant was in no position to consent, nor does the defendant contend that there was consent. The dissent analyzes the situation well. We incorporate herein by refer*138ence those portions of the analysis in the dissent which sustain the applicability of the statute. Moreover, the thrust of the statute is that the "actor” is the one playing the part. The evidence established that the defendant caused the movements to be made, and the limitation which the dissent seeks to impose on the statute would allow for avoidance of prosecution by careful manipulation. Of course, the Crandall case discussed in the dissent is authority in support of the conclusion we reach here.
For Count 3, Beineix, it should be noted that the videotape, which was viewed several times by our court, was inconclusive and showed the defendant, to the extent it showed anything, to be quite circumspect in his conduct. A narrowly drawn court order provided for a camera and a covert entry for installation. There was also a separate sound recording. The camera was focused from a ceiling ventilator on the complainant in the dental chair with the defendant hovering over her engaged in the practice of his profession. It was only during the resuscitation procedure, substantially out of camera view, that the claimed criminal conduct took place. Without the testimony of the police officer, who entered the examination room, and of the complainant, the videotape would be insufficient.
We are mindful of the fact that a State may afford a defendant greater rights than those held to be necessary by the United States Supreme Court under similar Federal constitutional provisions. (See Oregon v Hass, 420 US 714, 719.) New York State has, in fact, so ruled. (Cooper v Morin, 49 NY2d 69; cf. Bell v Wolfish, 441 US 520.) Nonetheless, to do this, there must be "a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.” (Cooper v Morin, supra, p 79.) Such a balancing here does not justify a New York prohibition on the admissibility of evidence obtained by means that the Federal Constitution would allow.
The use of electronic devices has been sustained by the United States Supreme Court. (Dalia v United States, 441 US 238; see, also, Katz v United States, 389 US 347.) The use of a pen register has been sustained as a lesser intrusion (United States v New York Tel. Co., 434 US 159, 170). Mr. Justice Haft has well considered the matter initially in People v Teicher (90 Misc 2d 638). Further, there is no problem in other jurisdictions.
*139"Rule that videotapes are admissible. All the cases so far decided in which this point was raised support the rule, either expressly or by necessary implication, that a videotape film is ordinarily admissible in evidence in a criminal trial.” (Admissibility of Videotape Film in Evidence in Criminal Trial, Ann. 60 ALR3d 333, 339, § 3.)
Videotape has already been used to preserve a New York State Court of Appeals session. (Cooke Committee to Draft Rules for Cameras in Courts, NYLJ, Oct. 23, 1979, p 1, col 3; Cameras in the Courtroom, NYLJ, Jan. 25, 1980, p 1, col 2; Cool TV for a Hot Bench, N. Y. Times Editorial, Feb. 4, 1980, p A18.)
The New Federal Rules of Evidence were specifically amended to include "video tapes”. (Rule 1001, subd [2]; see Am Jur New Topic Serv, § 1001.1.)
Can it be said that with the progress of science and all the useful arts (see Lithographic Co. v Sarony, 111 US 53), the more realistic a means of reproduction, the less likely it is to be acceptable as evidence? We conclude that, unless specifically interdicted by the Legislature, it is not to be excluded by the court.
The judgment rendered in the Supreme Court, New York County, on September 21, 1978 should be affirmed.
The case is remitted to the Supreme Court, New York County, for further proceedings to direct defendant to surrender himself pursuant to CPL 460.50 (subd 5).