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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. Top of Page
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