SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

914 

KA 11-00971 

PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.

 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER CHADICK, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (William D.

Walsh, J.), rendered March 29, 2011. The judgment convicted defendant

upon a jury verdict, of scheme to defraud in the second degree, scheme

to defraud in the first degree, grand larceny in the fourth degree

(three counts) and petit larceny (two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, a new trial is granted on counts two,

five, six, seven, eight and nine of the indictment, and count one of

the indictment is dismissed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, scheme to defraud in the first

degree (Penal Law § 190.65 [1] [b]). Contrary to defendant’s

contention, viewing the evidence in light of the elements of the

crimes as charged to the jury (see People v Danielson, 9 NY3d 342,

349), we conclude that the verdict is not against the weight of the

evidence (see generally People v Bleakley, 69 NY2d 490, 495).

We agree with defendant, however, that County Court erred in sua

sponte striking the entire testimony of his codefendant after the

codefendant invoked his privilege against self-incrimination, and we

therefore reverse the judgment and grant a new trial on counts two,

five, six, seven, eight and nine of the indictment. We conclude that

the court erred in failing to “weigh the options” in a “threshold

inquiry” to determine whether “less drastic alternatives” were

available, other than striking the entire testimony of the codefendant

(People v Vargas, 88 NY2d 363, 380). Here, the codefendant provided

testimony that, if allowed to remain in the record, would have

supported defendant’s positions that defendant did not engage in any

scheme to defraud, and that the codefendant had pleaded guilty with

respect to similar charges brought against him in order to avoid
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KA 11-00971 

harsher penalties, and not because the codefendant had engaged in any

fraudulent conduct. We further conclude that defendant had the right

to have such “relevant and exculpatory testimony considered by the

jury” (People v Cummings, 191 AD2d 1012, 1013). We also conclude that

the court’s error in striking the codefendant’s testimony is not

harmless inasmuch as “the proof against defendant [is] not

overwhelming and there is a reasonable probability that defendant

would have been acquitted but for the error” (id., citing People v

Johnson, 57 NY2d 969, 970). 

Finally, we note that the court reduced the charge of count one

of the indictment from scheme to defraud in the first degree (Penal

Law § 190.65 [1] [a]) to scheme to defraud in the second degree (§

190.60) on the ground that the grand jury minutes were not legally

sufficient to support the more serious charge. The record establishes

that, although the People accepted the court’s order, they failed to

file a reduced indictment as required by CPL 210.20 (6) (a) (see

People v Casey, 66 AD3d 1128, 1129-1130). Inasmuch as “ ‘[a] valid

and sufficient accusatory instrument is a nonwaivable jurisdictional

prerequisite to a criminal prosecution’ ” (People v Dumay, 23 NY3d

518, 522, quoting People v Dreyden, 15 NY3d 100, 103; see generally

CPL 200.10), count one of the indictment must be dismissed (see Casey,

66 AD3d at 1129-1130). 

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court