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.