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