Section 200.40. Indictment; joinder of defendants and consolidation of indictments against different defendants  


Latest version.
  • 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.