| People v Petke |
| 2015 NY Slip Op 01489 [125 AD3d 1103] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vHarold L. Petke, Appellant. |
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 thecrimes of promoting a sexual performance by a child (seven counts), possessing a sexualperformance 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 involvingchildren from defendant's computer over an online network, the police seized hiscomputer and found other videos containing similar images, and some involvingbestiality. Defendant was charged in a 19-count indictment and, after trial, was convictedof 17 counts: seven counts of promoting a sexual performance by a child, six counts ofpossessing a sexual performance by a child and four counts of obscenity in the thirddegree.[FN1]County Court sentenced him to 2 to 6 years on each of the promoting convictions, to beserved concurrently. On each of the possession convictions, he was sentenced to 1 to 4years, to be served concurrently to one another but consecutively to the sentences on thepromoting convictions. On each of the obscenity convictions, he was sentenced to oneyear, to be served concurrently to the other convictions. Defendant appeals.
Defendant's convictions were supported by legally sufficient evidence. "A person isguilty of promoting a sexual performance by a child when, knowing the character andcontent [*2]thereof, he [or she] produces, directs orpromotes any performance which includes sexual conduct by a child less than seventeenyears of age" (Penal Law § 263.15). The word "promote" is statutorilydefined to mean "procure, manufacture, issue, sell, give, provide, lend, mail, deliver,transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit oradvertise, 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 performancein his possession or control, but the child must be less than 16 years old (seePenal Law § 263.16). The obscenity counts required proof that he possessedobscene material (here, videos of humans having sex with animals), knowing its contentand 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 theimages, knew of the content of the files on the computer, or "promote[d]" any of theimages. A police officer testified that he downloaded three images from a certain IPaddress on the Internet. The Internet service provider's employee testified and presenteddocuments showing that the IP address was assigned to the computer in defendant'shome. The police officer then executed a search warrant, seized the computer anddiscovered other images thereon. Defendant's wife testified that only she and defendantlived in the home, defendant sometimes used the computer, she never downloaded anypornographic images involving children, and she once downloaded and watched part of abestiality 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 juryviewed all of the videos and images and heard from a police expert in computer forensicswho explained how file-sharing programs work, including how users download and storeimages. The file names of most of the indicted images were explicit and indicated thatthey contained children or animals involved in sexual acts. This evidence was legallysufficient to support the convictions.
Despite proof that called some of the People's evidence into question, the convictionswere not against the weight of the evidence. Defendant's wife testified that defendant didnot understand how to use the computer and could not read or write, and she had neverseen him search for or download any child pornography. Defendant's boss also testifiedthat defendant could not read and had difficulty using computers. This raised a questionas to whether he could have downloaded the images. The jury could have disbelievedportions 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 thecomputer, he could type phonetically, and some of the file names included misspelled orphonetically spelled words. Defendant contends that his computer forensics expert wasmore qualified than the People's witnesses, and that the testimony of his expert provedthat no one viewed the downloaded images—calling into question defendant'sknowledge of their character and content—and that all of the images were storedin a private folder rather than a shared folder so they were not available to bedownloaded by anyone else—calling into question defendant's promotion of thoseimages. "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 AD3d1217, 1223 [2014]). It was reasonable for the jury to reject testimony fromdefendant's expert, considering the conflicting testimony and that defendant's expert wasterminated from his law enforcement employment following a felony conviction, andwas on felony probation at the time of his testimony. Giving deference to the jury'scredibility determinations, the verdict was not against the weight of the evidence (see People v Anderson, 118AD3d 1138, 1142 [2014]; People v Tucker, 95 AD3d 1437, 1440 [2012], lvdenied 19 NY3d 1105 [2012]).
Nevertheless, defendant is entitled to a new trial because County Court erred byfailing [*3]to excuse a particular juror for cause. ThePeople 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 constitutesreversible error here—not subject to harmless error analysis—because hewas forced to use a peremptory challenge on that juror and exhausted his peremptorychallenges before the completion of jury selection (see CPL 270.20 [2]; People v Greenfield, 112AD3d 1226, 1230 [2013], lv denied 23 NY3d 1037 [2014]; People v McGuire, 101 AD3d1386, 1388 [2012]). While the People raise a novel and intriguing argument that aharmless error analysis should be applied due to the unique circumstances that occurredin this case,[FN2]we find no basis in the law to create such an exception. Accordingly, we reverse andremit for a new trial.
Defendant's remaining arguments are rendered academic by our remittal for a newtrial.
Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is reversed, onthe law, and matter remitted to the County Court of St. Lawrence County for a newtrial.
Footnote 1:County Court dismissedtwo counts due to lack of proof of the age of the individuals involved in the performance.
Footnote 2:Only one additionaljuror 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 peremptorychallenges when selecting alternate jurors (see CPL 270.25 [2] [c]), and chosenot to exercise one on the alternate juror who eventually replaced the ill juror. Thus, allof the individuals who participated in deliberations were selected while defendant hadthe opportunity to exercise a peremptory challenge.