                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   104576
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

HAROLD L. PETKE,
                    Appellant.
________________________________


Calendar Date:   January 14, 2015

Before:   Peters, P.J., McCarthy, Garry and Rose, JJ.

                             __________


     Richard V. Manning, Parishville, for appellant.

      Alexander Lesyk, Special Prosecutor, Norwood, for
respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of St. Lawrence
County (Richards, J.), rendered September 2, 2011, upon a verdict
convicting defendant of the crimes of promoting a sexual
performance by a child (seven counts), possessing a sexual
performance by a child (six counts) and obscenity in the third
degree (four counts).

      After a police officer downloaded a picture and videos of
sexual conduct involving children from defendant's computer over
an online network, the police seized his computer and found other
videos containing similar images, and some involving bestiality.
Defendant was charged in a 19-count indictment and, after trial,
was convicted of 17 counts: seven counts of promoting a sexual
performance by a child, six counts of possessing a sexual
                               -2-                104576

performance by a child and four counts of obscenity in the third
degree.1 County Court sentenced him to 2 to 6 years on each of
the promoting convictions, to be served concurrently. On each of
the possession convictions, he was sentenced to 1 to 4 years, to
be served concurrently to one another but consecutively to the
sentences on the promoting convictions. On each of the obscenity
convictions, he was sentenced to one year, to be served
concurrently to the other convictions. Defendant appeals.

      Defendant's convictions were supported by legally
sufficient evidence. "A person is guilty of promoting a sexual
performance by a child when, knowing the character and content
thereof, he [or she] produces, directs or promotes any
performance which includes sexual conduct by a child less than
seventeen years of age" (Penal Law § 263.15). The word "promote"
is statutorily defined to mean "procure, manufacture, issue,
sell, give, provide, lend, mail, deliver, transfer, transmute,
publish, distribute, circulate, disseminate, present, exhibit or
advertise, or to offer or agree to do the same" (Penal Law
§ 263.00 [5]). The possession counts required proof that
defendant knowingly had such a performance in his possession or
control, but the child must be less than 16 years old (see Penal
Law § 263.16). The obscenity counts required proof that he
possessed obscene material (here, videos of humans having sex
with animals), knowing its content and character and with intent
to promote it (see Penal Law § 235.05 [1]; see also Penal Law §
235.00 [1], [4]).

      Defendant asserts that the People failed to prove that he
downloaded any of the images, knew of the content of the files on
the computer, or "promote[d]" any of the images. A police
officer testified that he downloaded three images from a certain
IP address on the Internet. The Internet service provider's
employee testified and presented documents showing that the IP
address was assigned to the computer in defendant's home. The
police officer then executed a search warrant, seized the
computer and discovered other images thereon. Defendant's wife


     1
        County Court dismissed two counts due to lack of proof of
the age of the individuals involved in the performance.
                              -3-                104576

testified that only she and defendant lived in the home,
defendant sometimes used the computer, she never downloaded any
pornographic images involving children, and she once downloaded
and watched part of a bestiality video at defendant's request and
with him present. Aside from that one video, she testified that
she had never seen any of the indicted images or videos. The
jury viewed all of the videos and images and heard from a police
expert in computer forensics who explained how file-sharing
programs work, including how users download and store images.
The file names of most of the indicted images were explicit and
indicated that they contained children or animals involved in
sexual acts. This evidence was legally sufficient to support the
convictions.

      Despite proof that called some of the People's evidence
into question, the convictions were not against the weight of the
evidence. Defendant's wife testified that defendant did not
understand how to use the computer and could not read or write,
and she had never seen him search for or download any child
pornography. Defendant's boss also testified that defendant
could not read and had difficulty using computers. This raised a
question as to whether he could have downloaded the images. The
jury could have disbelieved portions of the wife's testimony,
however, because of her desire to protect her husband.
Additionally, there was proof that defendant could do basic or
repetitive work on the computer, he could type phonetically, and
some of the file names included misspelled or phonetically
spelled words. Defendant contends that his computer forensics
expert was more qualified than the People's witnesses, and that
the testimony of his expert proved that no one viewed the
downloaded images – calling into question defendant's knowledge
of their character and content – and that all of the images were
stored in a private folder rather than a shared folder so they
were not available to be downloaded by anyone else – calling into
question defendant's promotion of those images. "As we discern
no 'serious flaw' in the opinion offered by the People's expert,"
however, we cannot conclude that the jury erred in crediting that
testimony (People v Hadfield, 119 AD3d 1217, 1223 [2014]). It
was reasonable for the jury to reject testimony from defendant's
expert, considering the conflicting testimony and that
defendant's expert was terminated from his law enforcement
                                -4-                  104576

employment following a felony conviction, and was on felony
probation at the time of his testimony. Giving deference to the
jury's credibility determinations, the verdict was not against
the weight of the evidence (see People v Anderson, 118 AD3d 1138,
1142 [2014]; People v Tucker, 95 AD3d 1437, 1440 [2012], lv
denied 19 NY3d 1105 [2012]).

      Nevertheless, defendant is entitled to a new trial because
County Court erred by failing to excuse a particular juror for
cause. The People concede, and we agree, that juror No. 134
should have been excused for cause. County Court's erroneous
ruling denying defendant's challenge for cause constitutes
reversible error here – not subject to harmless error analysis –
because he was forced to use a peremptory challenge on that juror
and exhausted his peremptory challenges before the completion of
jury selection (see CPL 270.20 [2]; People v Greenfield, 112 AD3d
1226, 1230 [2013], lv denied 23 NY3d 1037 [2014]; People v
McGuire, 101 AD3d 1386, 1388 [2012]). While the People raise a
novel and intriguing argument that a harmless error analysis
should be applied due to the unique circumstances that occurred
in this case,2 we find no basis in the law to create such an
exception. Accordingly, we reverse and remit for a new trial.

      Defendant's remaining arguments are rendered academic by
our remittal for a new trial.

        Peters, P.J., Garry and Rose, JJ., concur.




    2
        Only one additional juror was selected after defendant
exhausted his peremptory challenges. That juror, however, was
released from the jury due to a medical situation that arose
during the trial, and he did not participate in deliberations.
Defendant was given additional peremptory challenges when
selecting alternate jurors (see CPL 270.25 [2] [c]), and chose
not to exercise one on the alternate juror who eventually
replaced the ill juror. Thus, all of the individuals who
participated in deliberations were selected while defendant had
the opportunity to exercise a peremptory challenge.
                              -5-                  104576

      ORDERED that the judgment is reversed, on the law, and
matter remitted to the County Court of St. Lawrence County for a
new trial.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
