§ 200.40 Indictment; joinder of defendants and consolidation of\n indictments against different defendants.\n 1. Two or more defendants may be jointly charged in a single\nindictment provided that:\n (a) all such defendants are jointly charged with every offense alleged\ntherein; or\n (b) all the offenses charged are based upon a common scheme or plan;\nor\n (c) all the offenses charged are based upon the same criminal\ntransaction as that term is defined in subdivision two of section 40.10;\nor\n (d) if the indictment includes a count charging enterprise corruption:\n (i) all the defendants are jointly charged with every count of\nenterprise corruption alleged therein; and\n (ii) every offense, other than a count alleging enterprise corruption,\nis a criminal act specifically included in the pattern of criminal\nactivity on which the charge or charges of enterprise corruption is or\nare based; and\n (iii) each such defendant could have been jointly charged with at\nleast one of the other defendants, absent an enterprise corruption\ncount, under the provisions of paragraph (a), (b) or (c) of this\nsubdivision, in an accusatory instrument charging at least one such\nspecifically included criminal act. For purposes of this subparagraph,\njoinder shall not be precluded on the ground that a specifically\nincluded criminal act which is necessary to permit joinder is not\ncurrently prosecutable, when standing alone, by reason of previous\nprosecution or lack of geographical jurisdiction.\n Even in such case, the court, upon motion of a defendant or the people\nmade within the period provided by section 255.20, may for good cause\nshown order in its discretion that any defendant be tried separately\nfrom the other or from one or more or all of the others. Good cause\nshall include, but not be limited to, a finding that a defendant or the\npeople will be unduly prejudiced by a joint trial or, in the case of a\nprosecution involving a charge of enterprise corruption, a finding that\nproof of one or more criminal acts alleged to have been committed by one\ndefendant but not one or more of the others creates a likelihood that\nthe jury may not be able to consider separately the proof as it relates\nto each defendant, or in such a case, given the scope of the pattern of\ncriminal activity charged against all the defendants, a particular\ndefendant's comparatively minor role in it creates a likelihood of\nprejudice to him. Upon such a finding of prejudice, the court may order\ncounts to be tried separately, grant a severance of defendants or\nprovide whatever other relief justice requires.\n 2. When two or more defendants are charged in separate indictments\nwith an offense or offenses but could have been so charged in a single\nindictment under subdivision one above, the court may, upon application\nof the people, order that such indictments be consolidated and the\ncharges be heard in a single trial. If such indictments also charge\noffenses not properly the subject of a single indictment under\nsubdivision one above, those offenses shall not be consolidated, but\nshall remain in existence and may be separately prosecuted. Nothing\nherein precludes the consolidation of an indictment with a superior\ncourt information.\n
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