(concurring in part and dissenting in part). We respectfully dissent from so much of the majority’s determination as would reverse County Court’s order dismissing count one of the indictment.
A grand jury indicted defendant for, inter aha, possession of a sexual performance by a child, a class E felony defined under Penal Law § 263.16, based on his possession of approximately 180 poor-quality black and white printouts or photocopies of Internet web pages displaying photographs of boys alleged to be less than 16 years of age. Defendant moved to dismiss the indictment on the grounds that most if not all of the photographs failed to depict “sexual conduct,” the exhibition to the jury of numerous photographs that failed to depict sexual conduct was prejudicial and tainted the grand jury process, and the grand jury may not have been properly instructed as to the definition of “lewd” or “exhibition.”* At oral argument on the motion, County Court asked the District Attorney to select photographs that, to his mind, depicted “sexual conduct.” The District Attorney selected but four of the 180 photographs, which then formed the basis for County Court’s determination. Concluding that none of those four photographs depicted sexual conduct, but in no way addressing the remaining photographs, County Court granted the motion and dismissed the indictment.
Pursuant to Penal Law § 263.16, “[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.” “Sexual performance” is defined as a performance or part thereof that includes “sexual conduct” (Penal Law § 263.00 [1]) and “sexual conduct” is in turn defined as “actual or simulated sexual intercourse, deviate sexual intercourse, sexual [bestiality], masturbation, *846sado-masochistic abuse, or lewd exhibition of the genitals” (Penal Law § 263.00 [3]). To the extent that sexual conduct may have been involved in this case, the parties agree that it was limited to “lewd exhibition of the genitals.”
Although the term “lewd exhibition of the genitals” is not separately defined, we agree with the majority that the test developed in United States v Dost (636 F Supp 828, affd 813 F2d 1231), in connection with a federal statute proscribing “lascivious exhibition of the genitals or pubic area” (18 USC former § 2255 [2] [E]), has been widely used (see e.g. People v Bimonte, 187 Misc 2d 677, 683-684) and is instructive. Examination of the six Dost factors highlights two points that we believe are of some significance here. First, it is apparent that not all displays of the genitals, even uncovered genitals, will constitute a lewd display of the genitals. To hold otherwise would be to render the Legislature’s use of the word “lewd” wholly superfluous, thereby violating the canon of statutory construction that every word of a statute is to be given effect (see McKinney’s Cons Laws of NY, Book 1, Statutes § 231). Second, as can be seen from the fourth of the Dost factors (United States v Dost, supra at 832), an exhibition of clothed genitals can constitute a lewd display so long as there is in fact some exhibition of the genitals. Thus, for example, an erect penis discernible through tight clothing could, under appropriate circumstances, constitute a lewd display of the genitals (see People v Darryl M., 123 Misc 2d 723, 726). We, therefore, disagree with the majority’s reliance upon People v Kongs (30 Cal App 4th 1741, 37 Cal Rptr 2d 327), which construed a California statute making it a crime to “annoy or molest any child under the age of 18” for the proposition that “crotch shots” necessarily violate Penal Law § 263.16, which requires a “lewd exhibition of the genitals.”
Although County Court correctly recognized that mere nudity would not of itself make out a violation, we believe it erred in its out-of-hand rejection of any photographs that did not display unclothed genitalia. At the same time, we agree with County Court that none of the exhibits singled out by the People depicts a lewd exhibition of the genitals. Describing exhibit C as “grainy” is something of an understatement. In fact, the photograph is of such poor quality that we are unable to distinguish any body parts other than human legs, and we are at a loss as to how any reasonable person could discern a lewd exhibition of the genitals therefrom. Although exhibits A and B each depict a nude boy with his penis exposed, and notwithstanding the determinations of County Court and the majority *847that the photographs “suggest [ ]” an erection, we believe that the children’s poses and the poor quality and shading of the photographs make it impossible to determine whether either of them has an erection. Furthermore, in neither of these exhibits is the focal point of the visual depiction on the child’s genitalia, the settings are not sexually suggestive in any way, the poses of the children are by no means unnatural, there is nothing about either of them that suggests sexual coyness or a willingness to engage in sexual activity, and we see no basis for a finding that either depiction is intended or designed to elicit a sexual response in the viewer. Finally, although sexually suggestive, exhibit D lacks any visual depiction of a child’s genitals. To the contrary, the only genital area that can be viewed is covered by a bathing suit and, unlike the situation in People v Darryl M. (supra), no erection or even an outline or other visual suggestion of genitalia can be discerned.
Because County Court erroneously limited its consideration to but four of the photographs that were received in evidence before the grand jury, we would withhold decision, remit the matter to County Court for a consideration of all photographs that the People contend depict a lewd exhibition of the genitals and redetermination of the motion on that basis. The majority is correct that it was exclusively the province of the grand jury to weigh the evidence (see People v Jensen, 86 NY2d 248, 252). However, it is for the court to ascertain the “ legal sufficiency’ of the evidence” (id. at 252) and we would remit for County Court to make that determination with respect to all of the evidence. First, although it is questionable as to whether any of the photographs before the grand jury provides legally sufficient evidence, it is our view that County Court should make that determination in the first instance, applying the standard set forth herein. This would give the District Attorney — who expressed a willingness during oral argument before County Court to limit the number of photographs that he seeks to introduce into evidence — the opportunity to do just that. Second, there may be some merit to defendant’s claim that the District Attorney’s mass submission to the grand jury of 180 photographs in support of his request that the grand jury return a single count of possession of a sexual performance by a child was highly prejudicial and rendered the resulting indictment defective within the purview of CPL 210.25 (1). The sheer mass of the material put before the grand jurors, by far the greater part of which could not by any stretch of the imagination constitute a sexual performance, could have had the effect of inciting the grand jurors against defendant, especially when they were not instructed as to the definition of “lewd.” This is *848particularly so in view of the District Attorney’s initial statement to the grand jury: “This deals with child pornography so if anyone feels that they can’t stomach it [they may] leave the room for personal reasons.” On remittal, we would have County Court consider this branch of defendant’s motion as well.
Spain, J., concurs. Ordered that the amended order is modified, on the law, by reversing so much thereof as granted defendant’s motion to dismiss count one of the indictment; motion denied to that extent and said count reinstated; and, as so modified, affirmed.
The grand jury, in fact, received no instruction as to the definition of either of these terms.