N.Y. Penal Law § 460.60: Enterprise corruption; consent to prosecute

§ 460.60 Enterprise corruption; consent to prosecute.

1. For purposes of this section, when a grand jury proceeding concerns

a possible charge of enterprise corruption, or when an accusatory

instrument includes a count charging a person with enterprise

corruption, the affected district attorneys are the district attorneys

otherwise empowered to prosecute any of the underlying acts of criminal

activity in a county with jurisdiction over the offense of enterprise

corruption pursuant to section 460.40 of this article, in which:

(a) there has been substantial and significant activity by the

particular enterprise; or

(b) conduct occurred constituting a criminal act specifically included

in the pattern of criminal activity charged in the accusatory instrument

and not previously prosecuted; or

(c) the particular enterprise has its principal place of business.

2. A grand jury proceeding concerning a possible charge of enterprise

corruption may be instituted only with the consent of the affected

district attorneys. Should the possibility of such a charge develop

after a grand jury proceeding has been instituted, the consent of the

affected district attorneys shall be sought as soon as is practical, and

an indictment charging a person with enterprise corruption may not be

voted upon by the grand jury without such consent.

3. A person may be charged in an accusatory instrument with enterprise

corruption only with the consent of the affected district attorneys.

When it is impractical to obtain the consent specified in subdivision

two of this section prior to the filing of the accusatory instrument,

then that consent must be secured within twenty days thereafter.

4. When the prosecutor is the deputy attorney general in charge of the

statewide organized crime task force, the consent required by

subdivisions two and three of this section shall be in addition to that

required by subdivision seven of section seventy-a of the executive law.

5. Within fifteen days after the arraignment of any person on an

indictment charging a person with the crime of enterprise corruption the

prosecutor shall provide a copy of the indictment to those district

attorneys whose consent was required pursuant to subdivision three of

this section, and shall notify the court and defendant of those district

attorneys whose consent the prosecutor has secured. The court shall then

review the indictment and the grand jury minutes, notify any district

attorney whose consent under subdivision one of this section should have

been but was not obtained, direct that the prosecutor provide that

district attorney with the portion of the indictment and grand jury

minutes that are relevant to a determination whether that district

attorney is an "affected district attorney" within the meaning of

subdivision one of this section.

6. The failure to obtain from any district attorney the consent

required by subdivision two or three of this section shall not be

grounds for dismissal of the accusatory instrument or for any other

relief upon motion of a defendant in the criminal action.

Upon motion of a district attorney whose consent, pursuant to

subdivision three of this section, the court determines was required but

not obtained, the court may not dismiss the accusatory instrument or any

count thereof but may grant any appropriate relief. Such relief may

include, but is not limited to:

(a) ordering that any money forfeited by a defendant in the criminal

action, or the proceeds from the sale of any other property forfeited in

the criminal action by a defendant, which would have been paid to the

county of that district attorney pursuant to section thirteen hundred

forty-nine of the civil practice law and rules had the forfeiture action

been prosecuted in the county of that district attorney, be paid in

whole or in part to the county of that district attorney; or

(b) upon consent of the defendant, ordering the transfer of the

prosecution, or any part thereof, to that district attorney or to any

other prosecutor with jurisdiction over the prosecution, of the part

thereof to be transferred. However, prior to ordering any transfer of

the prosecution, the court shall provide to those district attorneys who

have previously consented to the prosecution an opportunity to intervene

and be heard concerning such transfer.

7. A district attorney whose consent, pursuant to subdivision three of

this section, the court determines was required but not obtained may

seek the relief described in subdivision six of this section exclusively

by a pre-trial motion in the criminal action based on the indictment

charging the crime of enterprise corruption. Such relief must be sought

within forty-five days of the receipt of notice from the court pursuant

to subdivision five of this section.