2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title I - Preliminary Proceedings in Superior Court › Article 200 - Indictment and Related Instruments › 200.20 - Indictment; What Offenses May Be Charged; Joinder of Offenses and Consolidation of Indictments.

§  200.20  Indictment; what offenses may be charged; joinder of offenses
and consolidation of indictments.
1. An indictment must charge at least one crime and may, in  addition,
charge  in  separate  counts one or more other offenses, including petty
offenses, provided that all such offenses are joinable pursuant  to  the
principles prescribed in subdivision two.
2. Two offenses are "joinable" when:
(a)  They  are  based  upon  the  same  act  or upon the same criminal
transaction, as that term is  defined  in  subdivision  two  of  section
40.10; or
(b)  Even  though  based  upon  different  criminal transactions, such
offenses, or the criminal transactions  underlying  them,  are  of  such
nature  that  either  proof  of  the first offense would be material and
admissible as evidence in chief upon a trial of the second, or proof  of
the  second would be material and admissible as evidence in chief upon a
trial of the first; or
(c) Even though based upon different criminal transactions,  and  even
though not joinable pursuant to paragraph (b), such offenses are defined
by  the  same  or  similar statutory provisions and consequently are the
same or similar in law; or
(d) Though not directly joinable with each other pursuant to paragraph
(a), (b) or (c), each is so joinable with a third offense  contained  in
the indictment. In such case, each of the three offenses may properly be
joined  not  only  with  each of the other two but also with any further
offense joinable with either of the other two, and the chain of  joinder
may be further extended accordingly.
3.  In  any  case  where  two  or  more offenses or groups of offenses
charged in an indictment are based upon different criminal transactions,
and where their  joinability  rests  solely  upon  the  fact  that  such
offenses,  or as the case may be at least one offense of each group, are
the  same  or  similar  in  law,  as  prescribed  in  paragraph  (c)  of
subdivision  two,  the  court,  in  the interest of justice and for good
cause shown, may, upon application of either a defendant or the  people,
in its discretion, order that any such offenses be tried separately from
the other or others thereof. Good cause shall include but not be limited
to situations where there is:
(a)  Substantially  more  proof  on one or more such joinable offenses
than on others and there is a substantial likelihood that the jury would
be unable to consider  separately  the  proof  as  it  relates  to  each
offense.
(b) A convincing showing that a defendant has both important testimony
to  give  concerning  one  count  and  a  genuine  need  to refrain from
testifying on the other, which satisfies the  court  that  the  risk  of
prejudice is substantial.
(i)  Good  cause,  under  this  paragraph  (b),  may be established in
writing or upon oral  representation  of  counsel  on  the  record.  Any
written or oral representation may be based upon information and belief,
provided  the sources of such information and the grounds of such belief
are set forth.
(ii) Upon the request of counsel,  any  written  or  recorded  showing
concerning the defendant's genuine need to refrain from testifying shall
be  ex  parte and in camera. The in camera showing shall be sealed but a
court for good cause may order unsealing. Any statements made by counsel
in the course of an application under this  paragraph  (b)  may  not  be
offered  against  the  defendant  in any criminal action for impeachment
purposes or otherwise.
4. When  two  or  more  indictments  against  the  same  defendant  or
defendants  charge  different  offenses of a kind that are joinable in a

single indictment pursuant to  subdivision  two,  the  court  may,  upon
application  of  either  the  people  or  a  defendant,  order that such
indictments be consolidated and treated as a single indictment for trial
purposes.  If  such  indictments, in addition to charging offenses which
are so joinable charge other offenses which are not  so  joinable,  they
may  nevertheless  be  consolidated  for  the limited purpose of jointly
trying the joinable offenses. In such case, such indictments  remain  in
existence with respect to any nonjoinable offenses and may be prosecuted
accordingly.      Nothing  herein  precludes  the  consolidation  of  an
indictment with a superior court information.
5.  A  court's  determination  of  an  application  for  consolidation
pursuant  to  subdivision  four  is  discretionary; except that where an
application  by  the  defendant  seeks  consolidation  with  respect  to
offenses  which  are, pursuant to paragraph (a) of subdivision two, of a
kind that are joinable in a single indictment by reason of  being  based
upon  the  same  act  or criminal transaction, the court must order such
consolidation unless good cause to the contrary be shown.
6. Where  an  indictment  charges  at  least  one  offense  against  a
defendant  who  was  under  the  age of seventeen, or commencing October
first, two thousand nineteen, eighteen at the time of the commission  of
the crime and who did not lack criminal responsibility for such crime by
reason  of  infancy, the indictment may, in addition, charge in separate
counts one or more other offenses for which such person would  not  have
been criminally responsible by reason of infancy, if:
(a)  the offense for which the defendant is criminally responsible and
the one or more other offenses for which he or she would not  have  been
criminally  responsible by reason of infancy are based upon the same act
or upon the same criminal  transaction,  as  that  term  is  defined  in
subdivision two of section 40.10 of this chapter; or
(b)  the  offenses  are  of such nature that either proof of the first
offense would be material and admissible as evidence  in  chief  upon  a
trial  of  the  second,  or  proof  of  the second would be material and
admissible as evidence in chief upon a trial of the first.