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Article 40 - NY Criminal Procedure Law
EXEMPTION FROM PROSECUTION BY REASON OF PREVIOUS PROSECUTION
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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