2023 New York Laws › CPL - Criminal Procedure › Part 1 - General Provisions › Title C - General Principles Relating to Requirements for and Exemptions From Criminal Prosecution › Article 40 - Exemption From Prosecution by Reason of Previous Prosecution › 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.