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.