Indictment; what offenses may be charged; joinder of offenses and consolidation of indictments

§ 200.20 Indictment; what offenses may be charged; joinder of offenses\n and consolidation of indictments.\n 1. An indictment must charge at least one crime and may, in addition,\ncharge in separate counts one or more other offenses, including petty\noffenses, provided that all such offenses are joinable pursuant to the\nprinciples prescribed in subdivision two.\n 2. Two offenses are "joinable" when:\n (a) They are based upon the same act or upon the same criminal\ntransaction, as that term is defined in subdivision two of section\n40.10; or\n (b) Even though based upon different criminal transactions, such\noffenses, or the criminal transactions underlying them, are of such\nnature that either proof of the first offense would be material and\nadmissible as evidence in chief upon a trial of the second, or proof of\nthe second would be material and admissible as evidence in chief upon a\ntrial of the first; or\n (c) Even though based upon different criminal transactions, and even\nthough not joinable pursuant to paragraph (b), such offenses are defined\nby the same or similar statutory provisions and consequently are the\nsame or similar in law; or\n (d) Though not directly joinable with each other pursuant to paragraph\n(a), (b) or (c), each is so joinable with a third offense contained in\nthe indictment. In such case, each of the three offenses may properly be\njoined not only with each of the other two but also with any further\noffense joinable with either of the other two, and the chain of joinder\nmay be further extended accordingly.\n 3. In any case where two or more offenses or groups of offenses\ncharged in an indictment are based upon different criminal transactions,\nand where their joinability rests solely upon the fact that such\noffenses, or as the case may be at least one offense of each group, are\nthe same or similar in law, as prescribed in paragraph (c) of\nsubdivision two, the court, in the interest of justice and for good\ncause shown, may, upon application of either a defendant or the people,\nin its discretion, order that any such offenses be tried separately from\nthe other or others thereof. Good cause shall include but not be limited\nto situations where there is:\n (a) Substantially more proof on one or more such joinable offenses\nthan on others and there is a substantial likelihood that the jury would\nbe unable to consider separately the proof as it relates to each\noffense.\n (b) A convincing showing that a defendant has both important testimony\nto give concerning one count and a genuine need to refrain from\ntestifying on the other, which satisfies the court that the risk of\nprejudice is substantial.\n (i) Good cause, under this paragraph (b), may be established in\nwriting or upon oral representation of counsel on the record. Any\nwritten or oral representation may be based upon information and belief,\nprovided the sources of such information and the grounds of such belief\nare set forth.\n (ii) Upon the request of counsel, any written or recorded showing\nconcerning the defendant's genuine need to refrain from testifying shall\nbe ex parte and in camera. The in camera showing shall be sealed but a\ncourt for good cause may order unsealing. Any statements made by counsel\nin the course of an application under this paragraph (b) may not be\noffered against the defendant in any criminal action for impeachment\npurposes or otherwise.\n 4. When two or more indictments against the same defendant or\ndefendants charge different offenses of a kind that are joinable in a\nsingle indictment pursuant to subdivision two, the court may, upon\napplication of either the people or a defendant, order that such\nindictments be consolidated and treated as a single indictment for trial\npurposes. If such indictments, in addition to charging offenses which\nare so joinable charge other offenses which are not so joinable, they\nmay nevertheless be consolidated for the limited purpose of jointly\ntrying the joinable offenses. In such case, such indictments remain in\nexistence with respect to any nonjoinable offenses and may be prosecuted\naccordingly. Nothing herein precludes the consolidation of an\nindictment with a superior court information.\n 5. A court's determination of an application for consolidation\npursuant to subdivision four is discretionary; except that where an\napplication by the defendant seeks consolidation with respect to\noffenses which are, pursuant to paragraph (a) of subdivision two, of a\nkind that are joinable in a single indictment by reason of being based\nupon the same act or criminal transaction, the court must order such\nconsolidation unless good cause to the contrary be shown.\n 6. Where an indictment charges at least one offense against a\ndefendant who was under the age of seventeen, or commencing October\nfirst, two thousand nineteen, eighteen at the time of the commission of\nthe crime and who did not lack criminal responsibility for such crime by\nreason of infancy, the indictment may, in addition, charge in separate\ncounts one or more other offenses for which such person would not have\nbeen criminally responsible by reason of infancy, if:\n (a) the offense for which the defendant is criminally responsible and\nthe one or more other offenses for which he or she would not have been\ncriminally responsible by reason of infancy are based upon the same act\nor upon the same criminal transaction, as that term is defined in\nsubdivision two of section 40.10 of this chapter; or\n (b) the offenses are of such nature that either proof of the first\noffense would be material and admissible as evidence in chief upon a\ntrial of the second, or proof of the second would be material and\nadmissible as evidence in chief upon a trial of the first.\n