        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
                                 -2-                           914
                                                         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
