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This entry was published on 2014-09-22
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SECTION 40.50
Previous prosecution; enterprise corruption
Criminal Procedure (CPL) CHAPTER 11-A, PART 1, TITLE C, ARTICLE 40
§ 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.