New York Law

Article 40 - NY Criminal Procedure Law

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• Article 40

S 40.10 Previous prosecution; definitions of terms.
  The following definitions are applicable to this article:
  1.  "Offense."  An "offense" is committed whenever any conduct is
performed which violates a statutory provision defining an offense; and
when the same conduct or criminal transaction violates two or more such
statutory provisions each such violation constitutes a separate and
distinct offense.  The same conduct or criminal transaction also
establishes separate and distinct offenses when, though violating only
one statutory provision, it results in death, injury, loss or other
consequences to two or more victims, and such result is an element of
the offense as defined.  In such case, as many offenses are committed as
there are victims.
  2.  "Criminal transaction" means conduct which establishes at least
one offense, and which is comprised of two or more or a group of acts
either (a) so closely related and connected in point of time and
circumstance of commission as to constitute a single criminal incident,
or (b) so closely related in criminal purpose or objective as to
constitute elements or integral parts of a single criminal venture.

S 40.20 Previous prosecution; when a bar to second prosecution.
  1.  A person may not be twice prosecuted for the same offense.
  2.  A person may not be separately prosecuted for two offenses based
upon the same act or criminal transaction unless:
  (a)  The offenses as defined have substantially different elements and
the acts establishing one offense are in the main clearly
distinguishable from those establishing the other; or
  (b)  Each of the offenses as defined contains an element which is not
an element of the other, and the statutory provisions defining such
offenses are designed to prevent very different kinds of harm or evil;
or
  (c)  One of such offenses consists of criminal possession of
contraband matter and the other offense is one involving the use of such
contraband matter, other than a sale thereof; or
  (d)  One of the offenses is assault or some other offense resulting in
physical injury to a person, and the other offense is one of homicide
based upon the death of such person from the same physical injury, and
such death occurs after a prosecution for the assault or other
non-homicide offense; or
  (e)  Each offense involves death, injury, loss or other consequence to
a different victim; or
  (f) One of the offenses consists of a violation of a statutory
provision of another jurisdiction, which offense has been prosecuted in
such other jurisdiction and has there been terminated by a court order
expressly founded upon insufficiency of evidence to establish some
element of such offense which is not an element of the other offense,
defined by the laws of this state; or
  (g) The present prosecution is for a consummated result offense, as
defined in subdivision three of section 20.10, which occurred in this
state and the offense was the result of a conspiracy, facilitation or
solicitation prosecuted in another state.
  (h) One of such offenses is enterprise corruption in violation of
section 460.20 of the penal law, racketeering in violation of federal
law or any comparable offense pursuant to the law of another state and a
separate or subsequent prosecution is not barred by section 40.50 of
this article.
 (i)  One  of  the  offenses  consists of a violation of 18 U.S.C. 371,
where the object of the conspiracy is to attempt in any manner to  evade
or  defeat any federal income tax or the payment thereof, or a violation
of 26 U.S.C. 7201, 26 U.S.C. 7202, 26 U.S.C. 7203, 26  U.S.C.  7204,  26
U.S.C.  7205,  26 U.S.C. 7206 or 26 U.S.C. 7212(A), where the purpose is
to evade or defeat any federal income tax or the  payment  thereof,  and
the  other  offense is committed for the purpose of evading or defeating
any New York state or New York city  income  taxes  and  is  defined  in
article  one  hundred  fifty-five  of the penal law, article one hundred
seventy of the penal law, article one hundred seventy-five of the  penal
law,  article  thirty-seven  of  the  tax  law or chapter forty of title
eleven of the administrative code of the city of New York.

S 40.30 Previous prosecution; what constitutes.
  1.  Except as otherwise provided in this section, a person "is
prosecuted" for an offense, within the meaning of section 40.20, when he
is charged therewith by an accusatory instrument filed in a court of
this state or of any jurisdiction within the United States, and when the
action either:
  (a)  Terminates in a conviction upon a plea of guilty; or
  (b)  Proceeds to the trial stage and a jury has been impaneled and
sworn or, in the case of a trial by the court without a jury, a witness
is sworn.
  2.  Despite the occurrence of proceedings specified in subdivision
one, a person is not deemed to have been prosecuted for an offense,
within the meaning of section 40.20, when:
  (a)  Such prosecution occurred in a court which lacked jurisdiction
over the defendant or the offense; or
  (b)  Such prosecution was for a lesser offense than could have been
charged under the facts of the case, and the prosecution was procured by
the defendant, without the knowledge of the appropriate prosecutor, for
the purpose of avoiding prosecution for a greater offense.
  3.  Despite the occurrence of proceedings specified in subdivision
one, if such proceedings are subsequently nullified by a court order
which restores the action to its pre-pleading status or which directs a
new trial of the same accusatory instrument, the nullified proceedings
do not bar further prosecution of such offense under the same accusatory
instrument.
  4.  Despite the occurrence of proceedings specified in subdivision
one, if such proceedings are subsequently nullified by a court order
which dismisses the accusatory instrument but authorizes the people to
obtain a new accusatory instrument charging the same offense or an
offense based upon the same conduct, the nullified proceedings do not
bar further prosecution of such offense under any new accusatory
instrument obtained pursuant to such court order or authorization.

S 40.40 Separate prosecution of jointly prosecutable offenses; when barred.
  1.  Where two or more offenses are joinable in a single accusatory
instrument against a person by reason of being based upon the same
criminal transaction, pursuant to paragraph (a) of subdivision two of
section 200.20, such person may not, under circumstances prescribed in
this section, be separately prosecuted for such offenses even though
such separate prosecutions are not otherwise barred by any other section
of this article.
  2.  When (a) one of two or more joinable offenses of the kind
specified in subdivision one is charged in an accusatory instrument, and
(b) another is not charged therein, or in any other accusatory
instrument filed in the same court, despite possession by the people of
evidence legally sufficient to support a conviction of the defendant for
such uncharged offense, and (c) either a trial of the existing
accusatory instrument is commenced or the action thereon is disposed of
by a plea of guilty, any subsequent prosecution for the uncharged
offense is thereby barred.
  3.  When (a) two or more of such offenses are charged in separate
accusatory instruments filed in the same court, and (b) an application
by the defendant for consolidation thereof for trial purposes, pursuant
to subdivision five of section 200.20 or section 100.45, is improperly
denied, the commencement of a trial of one such accusatory instrument
bars any subsequent prosecution upon any of the other accusatory
instruments with respect to any such offense.

S 40.50 Previous prosecution; enterprise corruption.
   1. The following definitions are applicable to this section:
    (a)  A criminal act or offense is "specifically included" when a count
  of an accusatory instrument charging a person with enterprise corruption
  alleges a pattern of criminal activity and the act or offense is alleged
  to be a criminal act within such pattern.
    (b) A criminal act is "a part  of"  a  pattern  of  criminal  activity
  alleged  in  a count of enterprise corruption when it is committed prior
  to commencement of the criminal action in which enterprise corruption is
  charged and was committed in furtherance of the same  common  scheme  or
  plan or with intent to participate in or further the affairs of the same
  criminal  enterprise  to  which  the crimes specifically included in the
  pattern are connected.
    (c) A person "is prosecuted" for an offense when he is prosecuted  for
  it  within  the  meaning  of  section  40.30  of this article or when an
  indictment or  a  count  of  an  indictment  charging  that  offense  is
  dismissed   pursuant   to   section   210.20  of  this  chapter  without
  authorization to submit the charge to the same or another grand jury, or
  the indictment or the count of the indictment charging that  offense  is
  dismissed  following  the  granting  of a motion to suppress pursuant to
  article 710 of this chapter, unless an appeal from  the  order  granting
  the motion to dismiss or suppress is pending.
    (d)  An  offense was "not prosecutable" in an accusatory instrument in
  which a person was charged with enterprise corruption when there was  no
  geographical  jurisdiction  of  that  offense  in  the  county where the
  accusatory instrument was filed, or when the offense was prosecutable in
  the county and was not barred from prosecution by section 40.20 or 40.40
  of this article or by any other provision  of  law  but  the  prosecutor
  filing  the  accusatory instrument was not empowered by law to prosecute
  the offense.
    2. A person who has been previously prosecuted for an offense may  not
  be  subsequently  prosecuted  for  enterprise  corruption  based  upon a
  pattern of criminal activity in which that  prior  offense,  or  another
  offense based upon the same act or criminal transaction, is specifically
  included unless:
    (a) he was convicted of that prior offense; and
    (b)   the   subsequent  pattern  of  criminal  activity  in  which  he
  participated includes at least one criminal act for  which  he  was  not
  previously prosecuted, which was a felony, and which occurred after that
  prior conviction.
    3.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption  may  not  be  subsequently   prosecuted   for   an   offense
  specifically  included in the pattern of criminal activity upon which it
  was based, or another offense  based  upon  the  same  act  or  criminal
  transaction,  unless  the  offense  is  a  class  A  felony  and was not
  prosecutable in the  accusatory  instrument  in  which  the  person  was
  charged with enterprise corruption.
    4. A person may not be separately prosecuted for enterprise corruption
  and  for  an  offense  specifically  included in the pattern of criminal
  activity upon which it is based or another offense based upon  the  same
  act  or  transaction,  unless the offense is a class A felony and is not
  prosecutable in the accusatory instrument in which the person is charged
  with enterprise corruption.
    5.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption  may  not  be  subsequently  prosecuted for an offense which,
  while not specifically included in the pattern of criminal  activity  on
  which   the  prior  charge  of  enterprise  corruption  was  based,  was
  nonetheless a part of that pattern, unless the offense was a class A  or
  B  felony  and either the offense was not prosecutable in the accusatory
  instrument in which the person was charged with enterprise corruption or
  the people show, by clear and convincing evidence, that  the  prosecutor
  did  not  possess evidence legally sufficient to support a conviction of
  that offense at the time of the earlier prosecution and evidence of that
  offense was not presented as part of the case in chief  in  the  earlier
  prosecution.
    6.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption may not be subsequently prosecuted for enterprise  corruption
  based  upon  a pattern of criminal activity that specifically includes a
  criminal act that was also specifically included  in  the  pattern  upon
  which the prior charge of enterprise corruption was based.
    7. A person may not be separately prosecuted for enterprise corruption
  in two accusatory instruments based upon a pattern of criminal activity,
  alleged  in either instrument, that specifically includes a criminal act
  that is also specifically included in the pattern upon which  the  other
  charge of enterprise corruption is based.
    8.  When a person is charged in an accusatory instrument with both one
  or more counts of enterprise corruption  and  with  another  offense  or
  offenses  specifically included in or otherwise a part of the pattern or
  patterns of criminal activity  upon  which  the  charge  or  charges  of
  enterprise  corruption is or are based, and the court orders that any of
  the counts be tried separately pursuant to subdivision  one  of  section
  200.40  of  this  chapter,  this  section shall not apply and subsequent
  prosecution of the remaining counts or offenses shall not be barred.
    9. A person  who  has  been  previously  prosecuted  for  racketeering
  pursuant  to  federal law, or any comparable offense pursuant to the law
  of another state may  not  be  subsequently  prosecuted  for  enterprise
  corruption  based  upon a pattern of criminal activity that specifically
  includes a criminal act that  was  also  specifically  included  in  the
  pattern  of  racketeering  activity  upon  which  the  prior  charge  of
  racketeering was based provided, however, that this section shall not be
  construed to prohibit the subsequent prosecution of  any  other  offense
  specifically   included   in  or  otherwise  a  part  of  a  pattern  of
  racketeering  activity  alleged  in  any  such  prior  prosecution   for
  racketeering or other comparable offense.

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