Senate Bill S5651

                                BILL NUMBER:S5651

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to motions for a defendant to be tried separately

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Criminal Law and Procedure.

This measure would amend CPL 200.40 to allow a trial court the
discretion, on its own motion, to order that defendants be tried
separately. The amendment would conform New York practice to Federal
practice and would give a court appropriate flexibility where good
cause exists for separate trials.

Under current law, a trial court has the discretion to order that
defendants be tried separately "upon motion of a defendant or the
people" on a showing of good cause (CPL 200.40(1)). Because this
provision does not explicitly allow the court to entertain the motion
on its own initiative, severance may only be granted on the
application of one of the parties, even where there is good cause for
severance (see Matter of Brown v Schulman, 245 AD2d 561 (2d Dept
1997)).

Federal courts, by contrast, have the power to grant severance sua
sponte (see e.g. United States v De Diego, 511 F2d 818 (DC Cir 1975));
              

see also LaFave, Criminal Procedure, at § 17.3 (a) ("the court also
has the power to order a severance even when such action has not been
specifically requested by either the prosecution or a defendant")).
Moreover, the American Bar Association standard for severance provides
that "the court may order a severance of offenses or defendants on its
own motion before trial if a severance could be obtained on motion of
the prosecution or a defendant, or during trial if the severance is
required by manifest necessity" (ABA Standards for Criminal Justice,
Joinder and Severance, Standard 13.4.2 (2d ed. 1980)).

We believe that a court should have the discretion, where good cause
exists, to order a defendant to be tried separately. There is little
reason to limit a court's discretion to sever a defendant from a case.
Where good cause exists, the failure of a party to request severance
or delay a motion to sever will often be for tactical reasons that
interfere with the administration of justice. This measure would
provide the court with the ability to manage caseloads more
effectively, especially in cases involving large numbers of
defendants, and will reduce instances of improper gamesmanship by the
parties.

This act shall take effect immediately and shall apply to all criminal
actions and proceedings commenced on or after such effective date.

Legislative History: None. New proposal.