N.Y. CPL Law § 40.50 — New York Code / Act CPL / Part 1 / Title C / Article 40 / Section 40.50
Previous prosecution; enterprise corruption
Status: in_force

§ 40.50 Previous prosecution; enterprise corruption.\n  1. The following definitions are applicable to this section:\n  (a) A criminal act or offense is "specifically included" when a count\nof an accusatory instrument charging a person with enterprise corruption\nalleges a pattern of criminal activity and the act or offense is alleged\nto be a criminal act within such pattern.\n  (b) A criminal act is "a part of" a pattern of criminal activity\nalleged in a count of enterprise corruption when it is committed prior\nto commencement of the criminal action in which enterprise corruption is\ncharged and was committed in furtherance of the same common scheme or\nplan or with intent to participate in or further the affairs of the same\ncriminal enterprise to which the crimes specifically included in the\npattern are connected.\n  (c) A person "is prosecuted" for an offense when he is prosecuted for\nit within the meaning of section 40.30 of this article or when an\nindictment or a count of an indictment charging that offense is\ndismissed pursuant to section 210.20 of this chapter without\nauthorization to submit the charge to the same or another grand jury, or\nthe indictment or the count of the indictment charging that offense is\ndismissed following the granting of a motion to suppress pursuant to\narticle 710 of this chapter, unless an appeal from the order granting\nthe motion to dismiss or suppress is pending.\n  (d) An offense was "not prosecutable" in an accusatory instrument in\nwhich a person was charged with enterprise corruption when there was no\ngeographical jurisdiction of that offense in the county where the\naccusatory instrument was filed, or when the offense was prosecutable in\nthe county and was not barred from prosecution by section 40.20 or 40.40\nof this article or by any other provision of law but the prosecutor\nfiling the accusatory instrument was not empowered by law to prosecute\nthe offense.\n  2. A person who has been previously prosecuted for an offense may not\nbe subsequently prosecuted for enterprise corruption based upon a\npattern of criminal activity in which that prior offense, or another\noffense based upon the same act or criminal transaction, is specifically\nincluded unless:\n  (a) he was convicted of that prior offense; and\n  (b) the subsequent pattern of criminal activity in which he\nparticipated includes at least one criminal act for which he was not\npreviously prosecuted, which was a felony, and which occurred after that\nprior conviction.\n  3. A person who has been previously prosecuted for enterprise\ncorruption may not be subsequently prosecuted for an offense\nspecifically included in the pattern of criminal activity upon which it\nwas based, or another offense based upon the same act or criminal\ntransaction, unless the offense is a class A felony and was not\nprosecutable in the accusatory instrument in which the person was\ncharged with enterprise corruption.\n  4. A person may not be separately prosecuted for enterprise corruption\nand for an offense specifically included in the pattern of criminal\nactivity upon which it is based or another offense based upon the same\nact or transaction, unless the offense is a class A felony and is not\nprosecutable in the accusatory instrument in which the person is charged\nwith enterprise corruption.\n  5. A person who has been previously prosecuted for enterprise\ncorruption may not be subsequently prosecuted for an offense which,\nwhile not specifically included in the pattern of criminal activity on\nwhich the prior charge of enterprise corruption was based, was\nnonetheless a part of that pattern, unless the offense was a class A or\nB felony and either the offense was not prosecutable in the accusatory\ninstrument in which the person was charged with enterprise corruption or\nthe people show, by clear and convincing evidence, that the prosecutor\ndid not possess evidence legally sufficient to support a conviction of\nthat offense at the time of the earlier prosecution and evidence of that\noffense was not presented as part of the case in chief in the earlier\nprosecution.\n  6. A person who has been previously prosecuted for enterprise\ncorruption may not be subsequently prosecuted for enterprise corruption\nbased upon a pattern of criminal activity that specifically includes a\ncriminal act that was also specifically included in the pattern upon\nwhich the prior charge of enterprise corruption was based.\n  7. A person may not be separately prosecuted for enterprise corruption\nin two accusatory instruments based upon a pattern of criminal activity,\nalleged in either instrument, that specifically includes a criminal act\nthat is also specifically included in the pattern upon which the other\ncharge of enterprise corruption is based.\n  8. When a person is charged in an accusatory instrument with both one\nor more counts of enterprise corruption and with another offense or\noffenses specifically included in or otherwise a part of the pattern or\npatterns of criminal activity upon which the charge or charges of\nenterprise corruption is or are based, and the court orders that any of\nthe counts be tried separately pursuant to subdivision one of section\n200.40 of this chapter, this section shall not apply and subsequent\nprosecution of the remaining counts or offenses shall not be barred.\n  9. A person who has been previously prosecuted for racketeering\npursuant to federal law, or any comparable offense pursuant to the law\nof another state may not be subsequently prosecuted for enterprise\ncorruption based upon a pattern of criminal activity that specifically\nincludes a criminal act that was also specifically included in the\npattern of racketeering activity upon which the prior charge of\nracketeering was based provided, however, that this section shall not be\nconstrued to prohibit the subsequent prosecution of any other offense\nspecifically included in or otherwise a part of a pattern of\nracketeering activity alleged in any such prior prosecution for\nracketeering or other comparable offense.\n