Indictment; allegations of previous convictions prohibited

§ 200.60 Indictment; allegations of previous convictions prohibited.

1. When the fact that the defendant has been previously convicted of
an offense raises an offense of lower grade to one of higher grade and
thereby becomes an element of the latter, an indictment for such higher
offense may not allege such previous conviction. If a reference to
previous conviction is contained in the statutory name or title of such
an offense, such name or title may not be used in the indictment, but an
improvised name or title must be used which, by means of the phrase "as
a felony" or in some other manner, labels and distinguishes the offense
without reference to a previous conviction. This subdivision does not
apply to an indictment or a count thereof that charges escape in the
second degree pursuant to subdivision two of section 205.10 of the penal
law, or escape in the first degree pursuant to section 205.15 thereof.

2. An indictment for such an offense must be accompanied by a special
information, filed by the district attorney with the court, charging
that the defendant was previously convicted of a specified offense.
Except as provided in subdivision three, the people may not refer to
such special information during the trial nor adduce any evidence
concerning the previous conviction alleged therein.

3. After commencement of the trial and before the close of the
people's case, the court, in the absence of the jury, must arraign the
defendant upon such special information, and must advise him that he may
admit the previous conviction alleged, deny it or remain mute.
Depending upon the defendant's response, the trial of the indictment
must then proceed as follows:

(a) If the defendant admits the previous conviction, that element of
the offense charged in the indictment is deemed established, no evidence
in support thereof may be adduced by the people, and the court must
submit the case to the jury without reference thereto and as if the fact
of such previous conviction were not an element of the offense. The
court may not submit to the jury any lesser included offense which is
distinguished from the offense charged solely by the fact that a
previous conviction is not an element thereof.

(b) If the defendant denies the previous conviction or remains mute,
the people may prove that element of the offense charged before the jury
as a part of their case. In any prosecution under subparagraph (ix) of
paragraph (a) of subdivision one of section 125.27 of the penal law, if
the defendant denies the previous murder conviction or remains mute, the
people may prove that element of the offense only after the jury has
first found the defendant guilty of intentionally causing the death of a
person as charged in the indictment, in which case the court shall then
permit the people and the defendant to offer evidence and argument
consistent with the relevant provisions of section 260.30 of this
chapter with respect to the previous murder conviction.

4. Nothing contained in this section precludes the people from proving
a prior conviction before a grand jury or relieves them from the
obligation or necessity of so doing in order to submit a legally
sufficient case.