2006 New York Code - Previous Prosecution; Enterprise Corruption

 
  § 40.50 Previous prosecution; enterprise corruption.
    1. The following definitions are applicable to this section:
    (a)  A criminal act or offense is "specifically included" when a count
  of an accusatory instrument charging a person with enterprise corruption
  alleges a pattern of criminal activity and the act or offense is alleged
  to be a criminal act within such pattern.
    (b) A criminal act is "a part  of"  a  pattern  of  criminal  activity
  alleged  in  a count of enterprise corruption when it is committed prior
  to commencement of the criminal action in which enterprise corruption is
  charged and was committed in furtherance of the same  common  scheme  or
  plan or with intent to participate in or further the affairs of the same
  criminal  enterprise  to  which  the crimes specifically included in the
  pattern are connected.
    (c) A person "is prosecuted" for an offense when he is prosecuted  for
  it  within  the  meaning  of  section  40.30  of this article or when an
  indictment or  a  count  of  an  indictment  charging  that  offense  is
  dismissed   pursuant   to   section   210.20  of  this  chapter  without
  authorization to submit the charge to the same or another grand jury, or
  the indictment or the count of the indictment charging that  offense  is
  dismissed  following  the  granting  of a motion to suppress pursuant to
  article 710 of this chapter, unless an appeal from  the  order  granting
  the motion to dismiss or suppress is pending.
    (d)  An  offense was "not prosecutable" in an accusatory instrument in
  which a person was charged with enterprise corruption when there was  no
  geographical  jurisdiction  of  that  offense  in  the  county where the
  accusatory instrument was filed, or when the offense was prosecutable in
  the county and was not barred from prosecution by section 40.20 or 40.40
  of this article or by any other provision  of  law  but  the  prosecutor
  filing  the  accusatory instrument was not empowered by law to prosecute
  the offense.
    2. A person who has been previously prosecuted for an offense may  not
  be  subsequently  prosecuted  for  enterprise  corruption  based  upon a
  pattern of criminal activity in which that  prior  offense,  or  another
  offense based upon the same act or criminal transaction, is specifically
  included unless:
    (a) he was convicted of that prior offense; and
    (b)   the   subsequent  pattern  of  criminal  activity  in  which  he
  participated includes at least one criminal act for  which  he  was  not
  previously prosecuted, which was a felony, and which occurred after that
  prior conviction.
    3.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption  may  not  be  subsequently   prosecuted   for   an   offense
  specifically  included in the pattern of criminal activity upon which it
  was based, or another offense  based  upon  the  same  act  or  criminal
  transaction,  unless  the  offense  is  a  class  A  felony  and was not
  prosecutable in the  accusatory  instrument  in  which  the  person  was
  charged with enterprise corruption.
    4. A person may not be separately prosecuted for enterprise corruption
  and  for  an  offense  specifically  included in the pattern of criminal
  activity upon which it is based or another offense based upon  the  same
  act  or  transaction,  unless the offense is a class A felony and is not
  prosecutable in the accusatory instrument in which the person is charged
  with enterprise corruption.
    5.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption  may  not  be  subsequently  prosecuted for an offense which,
  while not specifically included in the pattern of criminal  activity  on
  which   the  prior  charge  of  enterprise  corruption  was  based,  was
  nonetheless a part of that pattern, unless the offense was a class A  or
  B  felony  and either the offense was not prosecutable in the accusatory
  instrument in which the person was charged with enterprise corruption or
  the people show, by clear and convincing evidence, that  the  prosecutor
  did  not  possess evidence legally sufficient to support a conviction of
  that offense at the time of the earlier prosecution and evidence of that
  offense was not presented as part of the case in chief  in  the  earlier
  prosecution.
    6.  A  person  who  has  been  previously  prosecuted  for  enterprise
  corruption may not be subsequently prosecuted for enterprise  corruption
  based  upon  a pattern of criminal activity that specifically includes a
  criminal act that was also specifically included  in  the  pattern  upon
  which the prior charge of enterprise corruption was based.
    7. A person may not be separately prosecuted for enterprise corruption
  in two accusatory instruments based upon a pattern of criminal activity,
  alleged  in either instrument, that specifically includes a criminal act
  that is also specifically included in the pattern upon which  the  other
  charge of enterprise corruption is based.
    8.  When a person is charged in an accusatory instrument with both one
  or more counts of enterprise corruption  and  with  another  offense  or
  offenses  specifically included in or otherwise a part of the pattern or
  patterns of criminal activity  upon  which  the  charge  or  charges  of
  enterprise  corruption is or are based, and the court orders that any of
  the counts be tried separately pursuant to subdivision  one  of  section
  200.40  of  this  chapter,  this  section shall not apply and subsequent
  prosecution of the remaining counts or offenses shall not be barred.
    9. A person  who  has  been  previously  prosecuted  for  racketeering
  pursuant  to  federal law, or any comparable offense pursuant to the law
  of another state may  not  be  subsequently  prosecuted  for  enterprise
  corruption  based  upon a pattern of criminal activity that specifically
  includes a criminal act that  was  also  specifically  included  in  the
  pattern  of  racketeering  activity  upon  which  the  prior  charge  of
  racketeering was based provided, however, that this section shall not be
  construed to prohibit the subsequent prosecution of  any  other  offense
  specifically   included   in  or  otherwise  a  part  of  a  pattern  of
  racketeering  activity  alleged  in  any  such  prior  prosecution   for
  racketeering or other comparable offense.