Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 40.30
Previous prosecution; what constitutes
Criminal Procedure (CPL) CHAPTER 11-A, PART 1, TITLE C, ARTICLE 40
§ 40.30 Previous prosecution; what constitutes.

1. Except as otherwise provided in this section, a person "is
prosecuted" for an offense, within the meaning of section 40.20, when he
is charged therewith by an accusatory instrument filed in a court of
this state or of any jurisdiction within the United States, and when the
action either:

(a) Terminates in a conviction upon a plea of guilty; or

(b) Proceeds to the trial stage and a jury has been impaneled and
sworn or, in the case of a trial by the court without a jury, a witness
is sworn.

2. Despite the occurrence of proceedings specified in subdivision
one, a person is not deemed to have been prosecuted for an offense,
within the meaning of section 40.20, when:

(a) Such prosecution occurred in a court which lacked jurisdiction
over the defendant or the offense; or

(b) Such prosecution was for a lesser offense than could have been
charged under the facts of the case, and the prosecution was procured by
the defendant, without the knowledge of the appropriate prosecutor, for
the purpose of avoiding prosecution for a greater offense.

3. Despite the occurrence of proceedings specified in subdivision
one, if such proceedings are subsequently nullified by a court order
which restores the action to its pre-pleading status or which directs a
new trial of the same accusatory instrument, the nullified proceedings
do not bar further prosecution of such offense under the same accusatory
instrument.

4. Despite the occurrence of proceedings specified in subdivision
one, if such proceedings are subsequently nullified by a court order
which dismisses the accusatory instrument but authorizes the people to
obtain a new accusatory instrument charging the same offense or an
offense based upon the same conduct, the nullified proceedings do not
bar further prosecution of such offense under any new accusatory
instrument obtained pursuant to such court order or authorization.