PEOPLE v. KENT (2026)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Schenectady County (Matthew Sypniewski, J.), rendered February 9, 2022, upon a verdict convicting defendant of the crimes of grand larceny in the third degree (two counts) and criminal possession of a forged instrument in the second degree (seven counts).

As more fully set forth in our original decision on this appeal (235 AD3d 1094 [3d Dept 2025], lv denied 43 NY3d 964 [2025] ), grand juries in Albany and Schenectady Counties handed up indictments charging defendant with various felonies in connection with an alleged check kiting scheme spanning both jurisdictions.  Following separate jury trials, defendant was acquitted of the charges brought under the Albany County indictment but convicted of the charges brought under the Schenectady County indictment and sentenced to a total prison term of 1 to 4 years.  Defendant thereafter filed a motion pursuant to CPL article 440 seeking to set aside the verdict, which was summarily denied by County Court.

In February 2025, upon defendant's appeal, this Court affirmed both the judgment of conviction and the order denying defendant's CPL article 440 motion, rejecting his argument that the People were collaterally estopped from prosecuting him on the Schenectady County indictment due to his acquittal of the Albany County charges as well as his related ineffective assistance of counsel claim pertaining to trial counsel's failure to raise the estoppel argument below (id. at 1098).  A few months after our February 2025 decision was handed down, defendant filed a motion with this Court for a writ of error coram nobis, arguing that appellate counsel was ineffective for failing to argue on appeal that County Court erroneously empaneled an anonymous jury and for declining to raise an ineffective assistance of counsel claim relative to his trial counsel's failure to object to the voir dire procedure utilized during the Schenectady County trial.  Finding that “[t]hese issues may have merit and should have been raised on the appeal,” this Court, by decision and order entered September 4, 2025, granted defendant's motion for coram nobis relief, vacated “so much of the [February 20, 2025 order] as affirmed the judgment of conviction” and reinstated defendant's appeal “to the limited extent” of permitting him to “raise only [such] issues” (2025 N.Y. Slip Op 75918[U] [3d Dept 2025] ).¹  Following supplemental briefing by the parties, defendant's reinstated appeal is now back before this Court.

In his supplemental brief on the reinstated appeal, defendant argues that County Court improperly empaneled an anonymous jury and failed to take appropriate precautions to mitigate the prejudice resulting therefrom, depriving him of a fair trial and necessitating reversal of his conviction.  Even assuming defendant's anonymous jury argument is encompassed within the scope of the issues that may be raised on his reinstated appeal as set forth in our September 2025 motion decision, it is unpreserved for appellate review.  Here, during voir dire, the court clerk called the prospective jurors to the jury box by their assigned juror numbers and initials.  Without objection by defense counsel, County Court also referenced the prospective jurors by their initials and assigned juror numbers during the voir dire process and did not provide any explanation as to why it was doing so.  Although the procedure utilized by County Court did not comport with CPL 270.15(1)(a), which requires the trial court to “call[ ] an individual's full name when drawing from the pool of prospective jurors” (People v. Goberdhan, 241 AD3d 992, 999 [3d Dept 2025], lv denied 44 NY3d 1011 [2025] ), the deviation from statutory procedure does not implicate a mode of proceedings error and any challenge thereto is subject to ordinary preservation rules (see id. at 999–1000;  People v. Reinfurt, 241 AD3d 1015, 1021 n 5 [3d Dept 2025], lv denied 44 NY3d 1067 [2026] ).  As defense counsel never objected to the procedure utilized by County Court during voir dire, defendant's argument challenging such procedure is unpreserved for appellate review (see People v. Goberdhan, 241 AD3d at 998;  People v. Reinfurt, 241 AD3d at 1021).

Despite the lack of preservation, defendant asks this Court to invoke its interest of justice jurisdiction to reverse the judgment of conviction based upon the alleged improper empaneling of an anonymous jury (see CPL 470.15[3][c] ).  Under the circumstances presented, we decline to do so.  This is not a situation where the names of the prospective jurors were withheld from defense counsel (compare People v. Zakrzewski, 249 AD3d 1314, 1327 [3d Dept 2026], lv dismissed ––– NY3d –––– [July 30, 2026], lv denied ––– NY3d –––– [July 30, 2026];  People v. Rahaman, 248 AD3d 1607, 1609 [3d Dept 2026];  People v. Flores, 153 AD3d 182, 185, 191 [2d Dept 2017], affd 32 NY3d 1087 [2018] ), which would have “materially heighten[ed] the risk of prejudice” to defendant by impeding his ability to investigate potential conflicts of interest or bias (People v. Cassell, 248 AD3d 1433, 1438 [3d Dept 2026] ).  Rather, the record indicates that defense counsel was provided with a list of the prospective jurors' names prior to the start of jury selection, thereby enabling defendant to meaningfully participate in the voir dire process (see People v. Goberdhan, 241 AD3d at 999;  People v. Reinfurt, 241 AD3d at 1021).

Defendant raises a concern that referencing the prospective jurors by their assigned juror numbers and initials may have indicated that he was a dangerous person from whom their names were being shielded for safety purposes.  However, any such prejudice was mitigated by County Court's statements during the voir dire process explaining that defendant was presumed innocent, that it was the People's burden to prove the charges against him beyond a reasonable doubt and that, if the prospective jurors were selected to serve on the jury, they would be required to render a verdict based upon an honest evaluation of the evidence presented at trial and not based upon any “fear, favor, sympathy, bias [or] prejudice.”  Notably, at one point during the jury selection process, the prosecutor emphasized to the prospective jurors that the charges against defendant constituted financial crimes and did not involve violence, effectively mitigating the concern raised by defendant.  We take further note that County Court asked certain of the prospective jurors who indicated that they had friends or family members who worked in law enforcement to identify such individuals by their full names and to explain their relationship to them, “signaling that prospective jurors' identities were not being shielded from defendant” (People v. Goberdhan, 241 AD3d at 999).  In these circumstances, particularly since defense counsel had a list of the prospective jurors' names and the prospective jurors were informed that the charges against defendant did not involve violence, we discern no prejudice to defendant flowing from County Court's failure to call the names of the prospective jurors aloud during voir dire.  We do not view this as one of those “rare cases where invocation of this Court's interest of justice jurisdiction is warranted” to correct the error in statutory procedure (People v. Goberdhan, 241 AD3d at 1000;  see People v. Reinfurt, 241 AD3d at 1021).

For similar reasons, we are unpersuaded by defendant's ineffective assistance of counsel claim relative to his trial counsel's failure to object to such procedure.  “In determining whether a defendant has been deprived of effective assistance, a court must examine whether the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v. Fernandez, ––– NY3d ––––, ––––, 2026 N.Y. Slip Op 03915, *2 [2026] [internal quotation marks and citations omitted];  see People v. Benevento, 91 N.Y.2d 708, 712 [1998] ).  To sustain such a claim, “it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (People v. Fernandez, ––– NY3d at ––––, 2026 N.Y. Slip Op 03915, *2 [internal quotation marks and citation omitted] ).  “A single error may qualify as ineffective assistance, but only when the error is sufficiently egregious and prejudicial as to compromise a defendant's right to a fair trial” (People v. Watkins, 42 NY3d 635, 640 [2024] [internal quotation marks and citations omitted], cert denied ––– U.S. ––––, 145 S Ct 459 [2024] ).  “Such cases are rare and typically involve the failure to raise a defense so clear-cut and dispositive that no reasonable defense counsel would have failed to assert it, and it must be evident that the decision to forgo the contention could not have been grounded in a legitimate trial strategy” (id. [internal quotation marks and citations omitted] ).

There is no dispute that County Court deviated from the statutory procedure set forth in CPL 270.15(1)(a) by referring to the prospective jurors by their initials and assigned juror numbers and did not articulate “a case-specific justification” for doing so (People v. Cassell, 248 AD3d at 1438).  However, counsel's failure to object may have been a deliberate strategy given that the record indicates that he had a list of the prospective jurors' names and the prospective jurors were explicitly informed that the charges against defendant concerned only financial crimes and not violent crimes.  In these circumstances, defense counsel may have concluded that the procedure utilized by County Court did not actually prejudice defendant.  By objecting, it could have been more prejudicial to defendant by alerting the prospective jurors to the deviation from normal procedure, running the risk of the jurors concluding, without any founded basis, that their names were being shielded from defendant due to safety concerns.  On this record, defendant was not deprived of meaningful representation from his trial counsel's failure to object to the voir dire procedure utilized in this case.  Our original decision on defendant's initial appeal remains unchanged.

ORDERED that the judgment is affirmed, and matter remitted to the County Court of Schenectady County for further proceedings pursuant to CPL 460.50(5).

FOOTNOTES

1.   During the pendency of the original appeal, this Court granted defendant's motion for a stay of judgment pending appeal and set bail at $25,000, which defendant posted (235 AD3d at 1095 n 2).  Upon his coram nobis application, defendant again moved for an order staying execution of the judgment pending appeal and for release on his own recognizance or bail.  This Court granted such motion and set defendant's bail at $25,000 cash or insurance company bail bond.  As of September 18, 2025, defendant posted the bond.

Clark, J.P.

Pritzker, Ceresia, Mackey and Corcoran, JJ., concur.