N.Y. Criminal Procedure Law § 40.50: Previous prosecution; enterprise corruption

§ 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.