N.Y. Criminal Procedure Law § 200.20: Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments

§ 200.20 Indictment; what offenses may be charged; joinder of offenses

and consolidation of indictments.

1. An indictment must charge at least one crime and may, in addition,

charge in separate counts one or more other offenses, including petty

offenses, provided that all such offenses are joinable pursuant to the

principles prescribed in subdivision two.

2. Two offenses are "joinable" when:

(a) They are based upon the same act or upon the same criminal

transaction, as that term is defined in subdivision two of section

40.10; or

(b) Even though based upon different criminal transactions, such

offenses, or the criminal transactions underlying them, are of such

nature that either proof of the first offense would be material and

admissible as evidence in chief upon a trial of the second, or proof of

the second would be material and admissible as evidence in chief upon a

trial of the first; or

(c) Even though based upon different criminal transactions, and even

though not joinable pursuant to paragraph (b), such offenses are defined

by the same or similar statutory provisions and consequently are the

same or similar in law; or

(d) Though not directly joinable with each other pursuant to paragraph

(a), (b) or (c), each is so joinable with a third offense contained in

the indictment. In such case, each of the three offenses may properly be

joined not only with each of the other two but also with any further

offense joinable with either of the other two, and the chain of joinder

may be further extended accordingly.

3. In any case where two or more offenses or groups of offenses

charged in an indictment are based upon different criminal transactions,

and where their joinability rests solely upon the fact that such

offenses, or as the case may be at least one offense of each group, are

the same or similar in law, as prescribed in paragraph (c) of

subdivision two, the court, in the interest of justice and for good

cause shown, may, upon application of either a defendant or the people,

in its discretion, order that any such offenses be tried separately from

the other or others thereof. Good cause shall include but not be limited

to situations where there is:

(a) Substantially more proof on one or more such joinable offenses

than on others and there is a substantial likelihood that the jury would

be unable to consider separately the proof as it relates to each

offense.

(b) A convincing showing that a defendant has both important testimony

to give concerning one count and a genuine need to refrain from

testifying on the other, which satisfies the court that the risk of

prejudice is substantial.

(i) Good cause, under this paragraph (b), may be established in

writing or upon oral representation of counsel on the record. Any

written or oral representation may be based upon information and belief,

provided the sources of such information and the grounds of such belief

are set forth.

(ii) Upon the request of counsel, any written or recorded showing

concerning the defendant's genuine need to refrain from testifying shall

be ex parte and in camera. The in camera showing shall be sealed but a

court for good cause may order unsealing. Any statements made by counsel

in the course of an application under this paragraph (b) may not be

offered against the defendant in any criminal action for impeachment

purposes or otherwise.

4. When two or more indictments against the same defendant or

defendants charge different offenses of a kind that are joinable in a

single indictment pursuant to subdivision two, the court may, upon

application of either the people or a defendant, order that such

indictments be consolidated and treated as a single indictment for trial

purposes. If such indictments, in addition to charging offenses which

are so joinable charge other offenses which are not so joinable, they

may nevertheless be consolidated for the limited purpose of jointly

trying the joinable offenses. In such case, such indictments remain in

existence with respect to any nonjoinable offenses and may be prosecuted

accordingly. Nothing herein precludes the consolidation of an

indictment with a superior court information.

5. A court's determination of an application for consolidation

pursuant to subdivision four is discretionary; except that where an

application by the defendant seeks consolidation with respect to

offenses which are, pursuant to paragraph (a) of subdivision two, of a

kind that are joinable in a single indictment by reason of being based

upon the same act or criminal transaction, the court must order such

consolidation unless good cause to the contrary be shown.

6. Where an indictment charges at least one offense against a

defendant who was under the age of seventeen, or commencing October

first, two thousand nineteen, eighteen at the time of the commission of

the crime and who did not lack criminal responsibility for such crime by

reason of infancy, the indictment may, in addition, charge in separate

counts one or more other offenses for which such person would not have

been criminally responsible by reason of infancy, if:

(a) the offense for which the defendant is criminally responsible and

the one or more other offenses for which he or she would not have been

criminally responsible by reason of infancy are based upon the same act

or upon the same criminal transaction, as that term is defined in

subdivision two of section 40.10 of this chapter; or

(b) the offenses are of such nature that either proof of the first

offense would be material and admissible as evidence in chief upon a

trial of the second, or proof of the second would be material and

admissible as evidence in chief upon a trial of the first.