N.Y. Criminal Procedure Law § 200.40: Indictment; joinder of defendants and consolidation of indictments against different defendants

§ 200.40 Indictment; joinder of defendants and consolidation of

indictments against different defendants.

1. Two or more defendants may be jointly charged in a single

indictment provided that:

(a) all such defendants are jointly charged with every offense alleged

therein; or

(b) all the offenses charged are based upon a common scheme or plan;

or

(c) all the offenses charged are based upon the same criminal

transaction as that term is defined in subdivision two of section 40.10;

or

(d) if the indictment includes a count charging enterprise corruption:

(i) all the defendants are jointly charged with every count of

enterprise corruption alleged therein; and

(ii) every offense, other than a count alleging enterprise corruption,

is a criminal act specifically included in the pattern of criminal

activity on which the charge or charges of enterprise corruption is or

are based; and

(iii) each such defendant could have been jointly charged with at

least one of the other defendants, absent an enterprise corruption

count, under the provisions of paragraph (a), (b) or (c) of this

subdivision, in an accusatory instrument charging at least one such

specifically included criminal act. For purposes of this subparagraph,

joinder shall not be precluded on the ground that a specifically

included criminal act which is necessary to permit joinder is not

currently prosecutable, when standing alone, by reason of previous

prosecution or lack of geographical jurisdiction.

Even in such case, the court, upon motion of a defendant or the people

made within the period provided by section 255.20, may for good cause

shown order in its discretion that any defendant be tried separately

from the other or from one or more or all of the others. Good cause

shall include, but not be limited to, a finding that a defendant or the

people will be unduly prejudiced by a joint trial or, in the case of a

prosecution involving a charge of enterprise corruption, a finding that

proof of one or more criminal acts alleged to have been committed by one

defendant but not one or more of the others creates a likelihood that

the jury may not be able to consider separately the proof as it relates

to each defendant, or in such a case, given the scope of the pattern of

criminal activity charged against all the defendants, a particular

defendant's comparatively minor role in it creates a likelihood of

prejudice to him. Upon such a finding of prejudice, the court may order

counts to be tried separately, grant a severance of defendants or

provide whatever other relief justice requires.

2. When two or more defendants are charged in separate indictments

with an offense or offenses but could have been so charged in a single

indictment under subdivision one above, the court may, upon application

of the people, order that such indictments be consolidated and the

charges be heard in a single trial. If such indictments also charge

offenses not properly the subject of a single indictment under

subdivision one above, those offenses shall not be consolidated, but

shall remain in existence and may be separately prosecuted. Nothing

herein precludes the consolidation of an indictment with a superior

court information.