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 › 200.40 - Indictment; Joinder of Defendants and Consolidation of Indictments Against Different Defendants.

§  200.40    Indictment;  joinder  of  defendants  and  consolidation of
indictments against different defendants.
1. Two  or  more  defendants  may  be  jointly  charged  in  a  single
indictment provided that:
(a) all such defendants are jointly charged with every offense alleged
therein; or
(b)  all  the offenses charged are based upon a common scheme or plan;
or
(c) all  the  offenses  charged  are  based  upon  the  same  criminal
transaction as that term is defined in subdivision two of section 40.10;
or
(d) if the indictment includes a count charging enterprise corruption:
(i)  all  the  defendants  are  jointly  charged  with  every count of
enterprise corruption alleged therein; and
(ii) every offense, other than a count alleging enterprise corruption,
is a criminal act specifically  included  in  the  pattern  of  criminal
activity  on  which the charge or charges of enterprise corruption is or
are based; and
(iii) each such defendant could have  been  jointly  charged  with  at
least  one  of  the  other  defendants,  absent an enterprise corruption
count, under the provisions  of  paragraph  (a),  (b)  or  (c)  of  this
subdivision,  in  an  accusatory  instrument  charging at least one such
specifically included criminal act. For purposes of  this  subparagraph,
joinder  shall  not  be  precluded  on  the  ground  that a specifically
included criminal act which  is  necessary  to  permit  joinder  is  not
currently  prosecutable,  when  standing  alone,  by  reason of previous
prosecution or lack of geographical jurisdiction.
Even in such case, the court, upon motion of a defendant or the people
made within the period provided by section 255.20, may  for  good  cause
shown  order  in  its  discretion that any defendant be tried separately
from the other or from one or more or all  of  the  others.  Good  cause
shall  include, but not be limited to, a finding that a defendant or the
people will be unduly prejudiced by a joint trial or, in the case  of  a
prosecution  involving a charge of enterprise corruption, a finding that
proof of one or more criminal acts alleged to have been committed by one
defendant but not one or more of the others creates  a  likelihood  that
the  jury may not be able to consider separately the proof as it relates
to each defendant, or in such a case, given the scope of the pattern  of
criminal  activity  charged  against  all  the  defendants, a particular
defendant's comparatively minor role  in  it  creates  a  likelihood  of
prejudice  to him. Upon such a finding of prejudice, the court may order
counts to be tried  separately,  grant  a  severance  of  defendants  or
provide whatever other relief justice requires.
2.  When  two  or  more defendants are charged in separate indictments
with an offense or offenses but could have been so charged in  a  single
indictment  under subdivision one above, the court may, upon application
of the people, order that  such  indictments  be  consolidated  and  the
charges  be  heard  in  a  single trial. If such indictments also charge
offenses  not  properly  the  subject  of  a  single  indictment   under
subdivision  one  above,  those  offenses shall not be consolidated, but
shall remain in existence and  may  be  separately  prosecuted.  Nothing
herein  precludes  the  consolidation  of  an indictment with a superior
court information.