Anonymous “Numbers” Jury Without a Record-Based Justification Warrants Reversal in the Interest of Justice (People v Zakrzewski)

Case: People v Zakrzewski, 2026 NY Slip Op 03029 (3d Dept May 14, 2026)
Court: Appellate Division of the Supreme Court, New York, Third Department
Disposition: Judgment reversed; counts 5 and 12 dismissed with leave to re-present; matter remitted for a new trial.

1. Introduction

People v Zakrzewski arises from a two-day alleged course of domestic violence and subsequent post-arrest contact in violation of an order of protection. The People charged Michael Zakrzewski in a 13-count indictment including kidnapping in the second degree, two counts of strangulation in the second degree, criminal contempt in the first degree, multiple aggravated family offense and criminal contempt counts, tampering with a witness, assault in the third degree, and unlawful imprisonment in the second degree. After a six-week jury trial, defendant was convicted of 12 counts (one aggravated family offense count was dismissed before submission).

On appeal, defendant challenged (among other issues) the sufficiency/weight of the evidence on key violent-felony-related counts, alleged discovery/speedy-trial violations tied to CPL article 245 compliance, claimed errors concerning seizure/use of a cell phone, argued duplicity in the assault/aggravated family offense counts, and—most consequentially—attacked the trial court’s use of an anonymous jury (prospective jurors identified only by numbers/initials).

The Third Department’s central doctrinal move was remedial and procedural: although the anonymous jury issue was unpreserved and not a “mode of proceedings” error, reversal was warranted in the interest of justice where the trial court used the “extraordinary procedure” without any record-based justification and without even indicating that counsel had juror names—circumstances deemed to “materially heighten[] the risk of prejudice.”

2. Summary of the Opinion

  • Strangulation (Penal Law § 121.12): The convictions were supported by legally sufficient evidence and were not against the weight of the evidence; testimony and medical evidence permitted the jury to find stupor/loss of consciousness and/or “other physical injury or impairment.”
  • Assault in the third degree / “physical injury”: Legally sufficient evidence supported physical injury (substantial pain/impairment), including throat/neck pain and difficulty swallowing; weight challenges were rejected.
  • Criminal contempt in the first degree (Penal Law § 215.51[b][iv]): Weight challenge rejected; repeated jail calls and third-party contact supported intent to harass/annoy/threaten/alarm and lack of legitimate purpose.
  • CPL article 245 / readiness / COCs: The People’s disclosures and supplemental COCs were upheld; later good-faith, diligent disclosures did not render prior readiness illusory.
  • Cell phone litigation: No reversible error in denying disqualification of the DA’s office; no error in retaining the phone for impeachment; suppressed evidence may be used for impeachment.
  • Duplicity: Counts 5 (aggravated family offense) and 12 (assault in the third degree) were duplicitous because multiple assaults over hours could each satisfy the elements and the jury was not instructed to agree unanimously on which act constituted the offense; the Third Department dismissed those counts with leave to re-present notwithstanding lack of preservation.
  • Anonymous jury: Use of an anonymous “numbers” jury violated CPL former 270.15 and required reversal in the interest of justice due to the absence of any factual predicate, explanation, or juror-safety rationale on the record, and no indication counsel had juror names.
  • Guidance for retrial: The court flagged Sandoval-style limits (improperly permitting inquiry into the underlying basis for an order of protection) and cautioned on “inclusory concurrent counts” submission “in the alternative only.”

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Preservation, sufficiency, and weight review

  • People v Payne and People v Munise: The court treated County Court’s reservation and failure to expressly rule on the trial order of dismissal as an implicit denial, preserving certain legal sufficiency claims.
  • People v Zeoli and People v Kabia: Reinforced the strict rule that a legal sufficiency argument must be specifically raised at trial; shifting theories on appeal renders the claim unpreserved.
  • People v Osman, People v Marin, and People v Alger: Even when sufficiency is unpreserved, weight-of-the-evidence review requires the appellate court to assess whether each element was proven beyond a reasonable doubt.

B. Strangulation, “physical injury,” and credibility deference

  • People v Peasley: Provided both (i) the “substantial pain” framework and (ii) support that strangulation can be proven through victim testimony and corroborative injury/impairment evidence even absent definitive internal injury on imaging.
  • People v Manigault and People v Ryder: Bolstered the proposition that evidence of choking plus resulting impairment/pain/swelling can satisfy Penal Law § 121.12.
  • People v Walker, People v Wilkins, and People v Parker: Underwrote the deference given to juries on credibility when weighing defendant’s denial against the victim’s account.
  • People v Rudge, People v Bombard, and People v Foster (and contrast with People v Mussen): Supported the conclusion that the victim’s pain and functional difficulty swallowing/speaking can constitute “physical injury” as “substantial pain”/impairment.
  • People v Dillon, People v Jones, People v Ramsoondar, and People v Wilder: Reinforced rejection of weight challenges where the proof of injury/impairment is credited by the jury.
  • People v Cuadrado, People v Whitbeck, People v Swartz, and People v Miley: The court relied on this line to reject generalized credibility attacks absent inherent impossibility.

C. Criminal contempt—intent, lack of legitimate purpose, and repeated calls

  • People v Splunge, People v Soler, and People v Turner: These authorities informed the court’s view that repeated prohibited calls—especially from jail—support the requisite intent and absence of legitimate purpose, and that jurors may reject a defendant’s “I just wanted the truth” explanation.
  • People v Smith: Cited “generally” with respect to evaluating proof of intent/no legitimate purpose in contempt-style contexts.

D. CPL article 245: COC validity, ongoing disclosure, and readiness

  • People v Grandoit: Provided the governing rule that a readiness declaration must be accompanied or preceded by a certificate of compliance, and the court must be satisfied of actual readiness after on-the-record inquiry.
  • People v McCarty and People v James: Central to the holding that subsequent diligent, good-faith disclosures do not automatically render an earlier COC/readiness declaration illusory.
  • People v Gerhard and People v Graham: Supported deference to the trial court’s assessment of due diligence and good faith where the record supports ongoing discovery production.
  • People v Planty and People v Drayton: Used to justify rejecting vague “missing uploads” complaints that fail to specify what was missing and whether it was discoverable.
  • People v Bay: Cited regarding remedy analysis—reinforcing that even if an issue exists, the remedy is not automatic and must be assessed.
  • People v Brown and People v Bond: Enforced the timing rule that speedy trial/dismissal motions must be made pretrial; raising such theories posttrial via CPL 330.30 was improper and led to unpreserved arguments on appeal.

E. Disqualification of the DA, warrants, and impeachment use of suppressed evidence

  • Matter of Schumer v Holtzman and Matter of Soares v Herrick: Supplied the “heavy burden” standard—actual prejudice or substantial risk thereof—and emphasized separation-of-powers constraints on disqualifying a district attorney.
  • People v Bilsky: Informed the analysis that the misstatement in the warrant application record, when placed in context, did not show a deliberate attempt to shop for a better ruling.
  • Matter of Columbia County Subpoena Duces Tecum Dated Mar. 20, 2013 [Czajka]: Reinforced that absent prejudice, disqualification is not warranted.
  • People v DeProspero: Supported retaining a lawfully seized device when the People intend to use it for impeachment.
  • People v Brinkley, People v Carver, and People v Brown: Established that suppressed evidence may still be used for impeachment, validating the cross-examination use described.

F. Duplicity doctrine and remedial dismissal with leave to re-present

  • People v Dalton and People v Hilton: Framed duplicity: even a single-count charge is duplicitous if trial evidence shows multiple acts such that the jury’s verdict cannot be tied to a particular act.
  • People v Woodley, People v Quiros, and People v Russell (contrast with People v Rosa): Provided examples where multiple acts within a timeframe, without a unanimity instruction, create duplicity requiring reversal/dismissal.
  • People v Dunton: Supported interest-of-justice intervention despite nonpreservation.
  • People v McNealy (and “cf.” People v Levandowski): Supported the particular remedy: dismissal with leave to re-present to a new grand jury.

G. Anonymous jury: statutory violation, preservation, and interest-of-justice reversal

  • People v Flores, People v Tenace, and People v Heidrich: Established that the anonymous jury procedure is “extraordinary” and requires a factual predicate; using it without justification violates CPL former 270.15.
  • People v Reinfurt and People v Goberdhan: Controlled the threshold question: such a violation is not a “mode of proceedings” error, so preservation matters; nonetheless, appellate courts may reach the issue in the interest of justice.
  • People v Cassell: Supplied the totality-of-circumstances framework for deciding whether to exercise interest-of-justice review (nature of violation, trial court explanation, potential prejudice).
  • People v Flores (153 AD3d 182), affd 32 NY3d 1087: Used to underscore that a “numbers” jury is indeed an anonymous jury and that withholding names from counsel heightens prejudice concerns.

H. Sandoval-style impeachment limits and “opening the door”

  • People v Smith (18 NY3d 588): Provided the general principle that cross-examination about prior misconduct must bear logically and reasonably on credibility.
  • People v Gannon and People v Vanwuyckhuyse: Similarity to a charged offense increases prejudice risk but is not alone dispositive; trial courts must balance probative value vs prejudice.
  • People v Martin and People v Grady: Supported the notion that limiting scope can be an appropriate balancing method.
  • People v Benton: Influenced the holding that probing the underlying facts that led to issuance of an order of protection—particularly where those facts resemble charged domestic violence—is highly prejudicial and not meaningfully probative of credibility.
  • People v Saunders and People v Heiserman: Used to reject the trial court’s “opened the door” rationale where defendant’s generic reference to a “dispute” did not justify eliciting highly prejudicial details.

I. Inclusory concurrent counts and “submit in the alternative only”

  • People v Walker (237 AD3d 978): Cited for the definition of “inclusory” concurrent counts under CPL 300.30(4).
  • People v Barnette and People v Cole: Supported that unlawful imprisonment in the second degree is a lesser included offense of kidnapping in the second degree as charged.
  • People v Powell and People v Sharlow: Supported that criminal contempt/assault counts can be lesser included offenses of corresponding aggravated family offense counts when based on the same conduct/date ranges.
  • People v Saeli: Supported the remedial instruction: on retrial, submit such lesser included offenses “in the alternative only.”

3.2 Legal Reasoning

A. Strangulation and assault: how “injury/impairment” was proven

The court applied the statutory elements to a record containing (i) the victim’s testimony of choking to the point of “tunnel vision,” “stars,” and “everything went black,” (ii) neighbor observations, (iii) paramedic documentation of swelling and pain consistent with manual strangulation, and (iv) hospital testimony about pain and difficulty speaking/swallowing. The defense expert’s testimony that more bruising might be expected went to weight, not legal sufficiency. The Third Department’s reasoning reflects two practical evidentiary propositions:

  • Loss of consciousness need not be proven by definitive medical imaging; jurors may infer stupor/loss of consciousness/impairment from experiential testimony plus corroborative symptoms.
  • “Physical injury” (Penal Law § 10.00[9]) may be established through substantial pain and functional impairment (e.g., swallowing/speaking difficulty), even absent acute internal injury on CT.

B. Contempt: intent and “no legitimate purpose” inferred from volume and content of calls

Applying Penal Law § 215.51(b)(iv), the court emphasized the combination of: (1) service of an order of protection, (2) defendant’s knowledge that all contact was prohibited, (3) extraordinary repetition (84 calls plus more to other numbers), (4) recorded content urging the victim to lie about their relationship to avoid an aggravated family offense charge, and (5) the victim’s testimony about feeling pressured and manipulated. On these facts, intent and absence of legitimate purpose were reasonably inferred.

C. CPL 245 compliance and “illusory” readiness: the role of specificity and good-faith diligence

The court accepted the trial court’s determination that the People acted with due diligence and in good faith, continuing to disclose as materials were obtained and filing subsequent COCs. Critically, the defendant’s principal theory was not that disclosure was late, but that the supplemental COC filings were not prompt enough to “notice” those disclosures—yet he failed to identify with specificity which “uploads” were missing from the supplemental COCs or whether they were within CPL 245.20. That lack of specificity prevented meaningful evaluation of violation and remedy (with People v Bay framing that remedies are contextual rather than automatic).

D. Duplicity: multiple assaults + no unanimity clarification = inability to identify the act of conviction

The assault/aggravated family offense counts were charged over a day during which the People’s proof described numerous discrete attacks “off and on” for hours. Because any one of those attacks could satisfy “physical injury,” and because the jury charge did not require unanimity as to which act constituted the offense, the verdict risked being nonunanimous as to the operative act—precisely the harm duplicity doctrine targets. The court then used its interest-of-justice authority to dismiss counts 5 and 12 with leave to re-present.

E. Anonymous jury: statutory breach, no factual predicate, heightened prejudice, and discretionary reversal

The Third Department made several layered holdings:

  • The “numbers” procedure was an anonymous jury and violated CPL former 270.15.
  • The violation was not a mode of proceedings error (People v Reinfurt; People v Goberdhan), so the lack of objection mattered.
  • Nonetheless, under the totality of circumstances (People v Cassell), reversal was warranted in the interest of justice because:
    • the trial court gave no rationale on the record,
    • there was no record concern about juror safety/intimidation/interference, and
    • unlike cases where counsel had names, the record contained no indication counsel received juror identities, “materially heighten[ing] the risk of prejudice.”

3.3 Impact

A. Anonymous jury practice: stronger incentives for record-making and limited use

The decision meaningfully reinforces trial-level discipline around anonymous jury procedures. Even though the error is not automatically reversible absent preservation, Zakrzewski signals that a “numbers” jury implemented as a routine administrative choice—without an on-the-record factual predicate and explanation—creates a substantial appellate risk, including interest-of-justice reversal. The opinion also underscores that whether counsel is given juror names is a pivotal prejudice factor.

B. Duplicity in domestic-violence fact patterns: charging/charging-instruction consequences

Domestic violence prosecutions frequently involve repeated acts over a compressed timeframe. Zakrzewski cautions prosecutors and trial courts that when multiple distinct assaults are proven within the charged period, they must either:

  • charge separate counts tied to separate acts, and/or
  • provide a jury instruction that ensures unanimity as to the specific act underlying each count.

Otherwise, even unpreserved duplicity claims may be corrected in the interest of justice by dismissal with leave to re-present.

C. CPL 245 litigation: specificity remains essential

The decision illustrates that generalized complaints about “missing uploads” or belated notices—without identifying the precise materials and their discoverability—may fail both to establish a violation and to enable a remedy analysis. It also continues the line that later good-faith disclosures do not automatically invalidate prior readiness.

D. Trial management on retrial: Sandoval boundaries and inclusory counts

The court’s guidance on impeachment signals that while contempt convictions may be fair game on credibility, trial courts should avoid eliciting inflammatory underlying facts (especially domestic-violence-like facts) that do not meaningfully bear on credibility. The court also placed retrial courts on notice to submit certain lesser-included/inclusory counts “in the alternative only.”

4. Complex Concepts Simplified

  • Legal sufficiency vs. weight of the evidence: “Sufficiency” asks whether any rational juror could find the elements proven beyond a reasonable doubt when viewing evidence favorably to the People. “Weight” asks the appellate court to act as a “thirteenth juror” to decide whether the verdict was against the weight of credible evidence, while still deferring to the jury’s credibility assessments where appropriate.
  • Preservation / unpreserved claims: Many appellate issues must be raised specifically at trial. If the argument on appeal differs from the trial motion, it is “unpreserved.” Appellate courts may still correct certain errors “in the interest of justice,” but they are not required to.
  • Duplicity: A count is duplicitous when it effectively asks the jury to convict on one count based on multiple separate acts, risking a nonunanimous verdict (some jurors pick act A, others pick act B).
  • Anonymous jury (“numbers” jury): Jurors are identified only by numbers/initials. Because it can imply danger or fear, it is treated as an extraordinary measure requiring a record-based justification and careful handling to minimize prejudice.
  • Certificate of Compliance (COC) and readiness (CPL 245 / CPL 30.30 interplay): The People generally must certify good-faith compliance with automatic discovery to validly announce readiness for trial. Later good-faith supplemental disclosures do not necessarily invalidate earlier readiness, but courts examine diligence and the nature of any noncompliance.
  • Inclusory concurrent counts / lesser included offenses: If one offense necessarily includes another (you cannot commit the greater without also committing the lesser by the same conduct), the counts must be handled to avoid multiple convictions for the same conduct—often by submitting them “in the alternative.”

5. Conclusion

People v Zakrzewski is most significant for its appellate supervision of anonymous jury practice: the Third Department held that empaneling an anonymous “numbers” jury in violation of CPL former 270.15—without any on-the-record factual predicate or explanation and with no indication counsel received juror names—warrants reversal in the interest of justice despite lack of objection. The decision also provides a cautionary duplicity ruling in multi-act domestic violence prosecutions, dismissing assault and aggravated family offense counts where multiple acts could satisfy the elements and no unanimity clarification was given. Alongside these headline holdings, the opinion continues established lines on strangulation/physical injury proof, contempt intent inference from repeated prohibited contacts, and the importance of specificity and good-faith diligence in CPL 245 compliance disputes.