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ARTICLE 200
INDICTMENT AND RELATED INSTRUMENTS
Section 200.10 Indictment; definition.
200.15 Superior court information; definition.
200.20 Indictment; what offenses may be charged; joinder of
offenses and consolidation of indictments.
200.30 Indictment; duplicitous counts prohibited.
200.40 Indictment; joinder of defendants and consolidation of
indictments against different defendants.
200.50 Indictment; form and content.
200.60 Indictment; allegations of previous convictions
prohibited.
200.61 Indictment; special information for operators of
for-hire vehicles.
200.62 Indictment; special information for child sexual
assault offender.
200.65 Indictment; special information for enterprise
corruption.
200.70 Indictment; amendment of.
200.80 Indictment; superseding indictments.
200.95 Indictment; bill of particulars.
S 200.10 Indictment; definition.
An indictment is a written accusation by a grand jury, filed with a
superior court, charging a person, or two or more persons jointly, with
the commission of a crime, or with the commission of two or more
offenses at least one of which is a crime. Except as used in Article
190, the term indictment shall include a superior court information.
S 200.15 Superior court information; definition.
A superior court information is a written accusation by a district
attorney filed in a superior court pursuant to article one hundred
ninety-five, charging a person, or two or more persons jointly, with the
commission of a crime, or with the commission of two or more offenses,
at least one of which is a crime. A superior court information may
include any offense for which the defendant was held for action of a
grand jury and any offense or offenses properly joinable therewith
pursuant to sections 200.20 and 200.40, but shall not include an offense
not named in the written waiver of indictment executed pursuant to
section 195.20. A superior court information has the same force and
effect as an indictment and all procedures and provisions of law
applicable to indictments are also applicable to superior court
informations, except where otherwise expressly provided.
S 200.20 Indictment; what offenses may be charged; joinder of offenses
and consolidation of indictments.
1. An indictment must charge at least one crime and may, in addition,
charge in separate counts one or more other offenses, including petty
offenses, provided that all such offenses are joinable pursuant to the
principles prescribed in subdivision two.
2. Two offenses are "joinable" when:
(a) They are based upon the same act or upon the same criminal
transaction, as that term is defined in subdivision two of section
40.10; or
(b) Even though based upon different criminal transactions, such
offenses, or the criminal transactions underlying them, are of such
nature that either proof of the first offense would be material and
admissible as evidence in chief upon a trial of the second, or proof of
the second would be material and admissible as evidence in chief upon a
trial of the first; or
(c) Even though based upon different criminal transactions, and even
though not joinable pursuant to paragraph (b), such offenses are defined
by the same or similar statutory provisions and consequently are the
same or similar in law; or
(d) Though not directly joinable with each other pursuant to paragraph
(a), (b) or (c), each is so joinable with a third offense contained in
the indictment. In such case, each of the three offenses may properly be
joined not only with each of the other two but also with any further
offense joinable with either of the other two, and the chain of joinder
may be further extended accordingly.
3. In any case where two or more offenses or groups of offenses
charged in an indictment are based upon different criminal transactions,
and where their joinability rests solely upon the fact that such
offenses, or as the case may be at least one offense of each group, are
the same or similar in law, as prescribed in paragraph (c) of
subdivision two, the court, in the interest of justice and for good
cause shown, may, upon application of either a defendant or the people,
in its discretion, order that any such offenses be tried separately from
the other or others thereof. Good cause shall include but not be limited
to situations where there is:
(a) Substantially more proof on one or more such joinable offenses
than on others and there is a substantial likelihood that the jury would
be unable to consider separately the proof as it relates to each
offense.
(b) A convincing showing that a defendant has both important testimony
to give concerning one count and a genuine need to refrain from
testifying on the other, which satisfies the court that the risk of
prejudice is substantial.
(i) Good cause, under this paragraph (b), may be established in
writing or upon oral representation of counsel on the record. Any
written or oral representation may be based upon information and belief,
provided the sources of such information and the grounds of such belief
are set forth.
(ii) Upon the request of counsel, any written or recorded showing
concerning the defendant`s genuine need to refrain from testifying shall
be ex parte and in camera. The in camera showing shall be sealed but a
court for good cause may order unsealing. Any statements made by counsel
in the course of an application under this paragraph (b) may not be
offered against the defendant in any criminal action for impeachment
purposes or otherwise.
4. When two or more indictments against the same defendant or
defendants charge different offenses of a kind that are joinable in a
single indictment pursuant to subdivision two, the court may, upon
application of either the people or a defendant, order that such
indictments be consolidated and treated as a single indictment for trial
purposes. If such indictments, in addition to charging offenses which
are so joinable charge other offenses which are not so joinable, they
may nevertheless be consolidated for the limited purpose of jointly
trying the joinable offenses. In such case, such indictments remain in
existence with respect to any nonjoinable offenses and may be prosecuted
accordingly. Nothing herein precludes the consolidation of an indictment
with a superior court information.
5. A court`s determination of an application for consolidation
pursuant to subdivision four is discretionary; except that where an
application by the defendant seeks consolidation with respect to
offenses which are, pursuant to paragraph (a) of subdivision two, of a
kind that are joinable in a single indictment by reason of being based
upon the same act or criminal transaction, the court must order such
consolidation unless good cause to the contrary be shown.
6. Where an indictment charges at least one offense against a
defendant who was under the age of sixteen at the time of the commission
of the crime and who did not lack criminal responsibility for such crime
by reason of infancy, the indictment may, in addition, charge in
separate counts one or more other offenses for which such person would
not have been criminally responsible by reason of infancy, if:
(a) the offense for which the defendant is criminally responsible and
the one or more other offenses for which he would not have been
criminally responsible by reason of infancy are based upon the same act
or upon the same criminal transaction, as that term is defined in
subdivision two of section 40.10 of this chapter; or
(b) the offenses are of such nature that either proof of the first
offense would be material and admissible as evidence in chief upon a
trial of the second, or proof of the second would be material and
admissible as evidence in chief upon a trial of the first.
S 200.30 Indictment; duplicitous counts prohibited.
1. Each count of an indictment may charge one offense only.
2. For purpose of this section, a statutory provision which defines
the offense named in the title thereof by providing, in different
subdivisions or paragraphs, different ways in which such named offense
may be committed, defines a separate offense in each such subdivision or
paragraph, and a count of an indictment charging such named offense
which, without specifying or clearly indicating the particular
subdivision or paragraph of the statutory provision, alleges facts which
would support a conviction under more than one such subdivision or
paragraph, charges more than one offense.
S 200.40 Indictment; joinder of defendants and consolidation of
indictments against different defendants.
1. Two or more defendants may be jointly charged in a single
indictment provided that:
(a) all such defendants are jointly charged with every offense alleged
therein; or
(b) all the offenses charged are based upon a common scheme or plan;
or
(c) all the offenses charged are based upon the same criminal
transaction as that term is defined in subdivision two of section 40.10;
or
(d) if the indictment includes a count charging enterprise corruption:
(i) all the defendants are jointly charged with every count of
enterprise corruption alleged therein; and
(ii) every offense, other than a count alleging enterprise corruption,
is a criminal act specifically included in the pattern of criminal
activity on which the charge or charges of enterprise corruption is or
are based; and
(iii) each such defendant could have been jointly charged with at
least one of the other defendants, absent an enterprise corruption
count, under the provisions of paragraph (a), (b) or (c) of this
subdivision, in an accusatory instrument charging at least one such
specifically included criminal act. For purposes of this subparagraph,
joinder shall not be precluded on the ground that a specifically
included criminal act which is necessary to permit joinder is not
currently prosecutable, when standing alone, by reason of previous
prosecution or lack of geographical jurisdiction.
Even in such case, the court, upon motion of a defendant or the people
made within the period provided by section 255.20, may for good cause
shown order in its discretion that any defendant be tried separately
from the other or from one or more or all of the others. Good cause
shall include, but not be limited to, a finding that a defendant or the
people will be unduly prejudiced by a joint trial or, in the case of a
prosecution involving a charge of enterprise corruption, a finding that
proof of one or more criminal acts alleged to have been committed by one
defendant but not one or more of the others creates a likelihood that
the jury may not be able to consider separately the proof as it relates
to each defendant, or in such a case, given the scope of the pattern of
criminal activity charged against all the defendants, a particular
defendant`s comparatively minor role in it creates a likelihood of
prejudice to him. Upon such a finding of prejudice, the court may order
counts to be tried separately, grant a severance of defendants or
provide whatever other relief justice requires.
2. When two or more defendants are charged in separate indictments
with an offense or offenses but could have been so charged in a single
indictment under subdivision one above, the court may, upon application
of the people, order that such indictments be consolidated and the
charges be heard in a single trial. If such indictments also charge
offenses not properly the subject of a single indictment under
subdivision one above, those offenses shall not be consolidated, but
shall remain in existence and may be separately prosecuted. Nothing
herein precludes the consolidation of an indictment with a superior
court information.
S 200.50 Indictment; form and content.
An indictment must contain:
1. The name of the superior court in which it is filed; and
2. The title of the action and, where the defendant is a juvenile
offender, a statement in the title that the defendant is charged as a
juvenile offender; and
3. A separate accusation or count addressed to each offense charged,
if there be more than one; and
4. A statement in each count that the grand jury, or, where the
accusatory instrument is a superior court information, the district
attorney, accuses the defendant or defendants of a designated offense,
provided that in any prosecution under article four hundred eighty-five
of the penal law, the designated offense shall be the specified offense,
as defined in subdivision three of section 485.05 of the penal law,
followed by the phrase "as a hate crime", and provided further that in
any prosecution under section 490.25 of the penal law, the designated
offense shall be the specified offense, as defined in subdivision three
of section 490.05 of the penal law, followed by the phrase "as a crime
of terrorism"; and
5. A statement in each count that the offense charged therein was
committed in a designated county; and
6. A statement in each count that the offense charged therein was
committed on, or on or about, a designated date, or during a designated
period of time; and
7. A plain and concise factual statement in each count which, without
allegations of an evidentiary nature,
(a) asserts facts supporting every element of the offense charged and
the defendant`s or defendants` commission thereof with sufficient
precision to clearly apprise the defendant or defendants of the conduct
which is the subject of the accusation; and
(b) in the case of any armed felony, as defined in subdivision
forty-one of section 1.20, states that such offense is an armed felony
and specifies the particular implement the defendant or defendants
possessed, were armed with, used or displayed or, in the case of an
implement displayed, specifies what the implement appeared to be; and
(c) in the case of any hate crime, as defined in section 485.05 of the
penal law, specifies, as applicable, that the defendant or defendants
intentionally selected the person against whom the offense was committed
or intended to be committed; or intentionally committed the act or acts
constituting the offense, in whole or in substantial part because of a
belief or perception regarding the race, color, national origin,
ancestry, gender, religion, religious practice, age, disability or
sexual orientation of a person; and
(d) in the case of a crime of terrorism, as defined in section 490.25
of the penal law, specifies, as applicable, that the defendant or
defendants acted with intent to intimidate or coerce a civilian
population, influence the policy of a unit of government by intimidation
or coercion, or affect the conduct of a unit of government by murder,
assassination or kidnapping; and
8. The signature of the foreman or acting foreman of the grand jury,
except where the indictment has been ordered reduced pursuant to
subdivision one-a of section 210.20 of this chapter or the accusatory
instrument is a superior court information; and
9. The signature of the district attorney.
S 200.60 Indictment; allegations of previous convictions prohibited.
1. When the fact that the defendant has been previously convicted of
an offense raises an offense of lower grade to one of higher grade and
thereby becomes an element of the latter, an indictment for such higher
offense may not allege such previous conviction. If a reference to
previous conviction is contained in the statutory name or title of such
an offense, such name or title may not be used in the indictment, but an
improvised name or title must be used which, by means of the phrase "as
a felony" or in some other manner, labels and distinguishes the offense
without reference to a previous conviction. This subdivision does not
apply to an indictment or a count thereof that charges escape in the
second degree pursuant to subdivision two of section 205.10 of the penal
law, or escape in the first degree pursuant to section 205.15 thereof.
2. An indictment for such an offense must be accompanied by a special
information, filed by the district attorney with the court, charging
that the defendant was previously convicted of a specified offense.
Except as provided in subdivision three, the people may not refer to
such special information during the trial nor adduce any evidence
concerning the previous conviction alleged therein.
3. After commencement of the trial and before the close of the
people`s case, the court, in the absence of the jury, must arraign the
defendant upon such special information, and must advise him that he may
admit the previous conviction alleged, deny it or remain mute.
Depending upon the defendant`s response, the trial of the indictment
must then proceed as follows:
(a) If the defendant admits the previous conviction, that element of
the offense charged in the indictment is deemed established, no evidence
in support thereof may be adduced by the people, and the court must
submit the case to the jury without reference thereto and as if the fact
of such previous conviction were not an element of the offense. The
court may not submit to the jury any lesser included offense which is
distinguished from the offense charged solely by the fact that a
previous conviction is not an element thereof.
(b) If the defendant denies the previous conviction or remains mute,
the people may prove that element of the offense charged before the jury
as a part of their case. In any prosecution under subparagraph (ix) of
paragraph (a) of subdivision one of section 125.27 of the penal law, if
the defendant denies the previous murder conviction or remains mute, the
people may prove that element of the offense only after the jury has
first found the defendant guilty of intentionally causing the death of a
person as charged in the indictment, in which case the court shall then
permit the people and the defendant to offer evidence and argument
consistent with the relevant provisions of section 260.30 of this
chapter with respect to the previous murder conviction.
4. Nothing contained in this section precludes the people from proving
a prior conviction before a grand jury or relieves them from the
obligation or necessity of so doing in order to submit a legally
sufficient case.
S 200.61 Indictment; special information for operators of for-hire
vehicles.
1. The provisions of this section shall govern the procedures for
determining whether a defendant is eligible to receive the sentence set
forth in subdivision one of section 60.07 of the penal law upon
conviction of a specified offense as defined in subdivision two of such
section 60.07.
2. To receive the sentence set forth in subdivision one of section
60.07 of the penal law, an indictment for such specified offense must be
accompanied by a special information, filed by the district attorney
with the court, alleging that the victim of such offense was operating a
for-hire vehicle in the course of providing for-hire vehicle services at
the time of the commission of such offense.
3. Prior to the commencement of the trial, the court, in the absence
of the jury, must arraign the defendant upon such special information,
and must advise him that he may admit that the alleged victim of such
offense was operating a for-hire vehicle in the course of providing
for-hire vehicle services at the time of the alleged commission of such
offense, deny such allegation or remain mute. Depending upon the
defendant`s response, the trial of the indictment must proceed as
follows:
(a) If the defendant admits that the alleged victim of such specified
offense charged was operating a for-hire vehicle in the course of
providing for-hire vehicle services at the time of the commission of
such alleged offense, such allegation, and only such allegation, shall
be deemed established for purposes of eligibility, if the defendant is
convicted of the underlying specified offense, for a sentence pursuant
to subdivision one of section 60.07 of the penal law.
(b) If the defendant denies such allegation or remains mute, the
people may, by proof beyond a reasonable doubt, prove as part of their
case before the jury or, where the defendant has waived a jury trial,
the court, that the alleged victim of such offense was operating a
for-hire vehicle in the course of providing for-hire vehicle services at
the time of the commission of the offense.
4. Where a jury, pursuant to paragraph (b) of subdivision three of
this section, is charged with determining whether the alleged victim of
such specified offense was operating a for-hire vehicle in the course of
providing for-hire vehicle services, such jury shall consider and render
its verdict on such matter only if it convicts the defendant of such
specified offense or specified offenses charged.
5. For purposes of this section, the terms "for-hire vehicle",
"for-hire vehicle services" and "specified offense" shall have the
meanings set forth in section 60.07 of the penal law.
S 200.62 Indictment; special information for child sexual assault
offender.
1. Whenever a person is charged with the commission or attempted
commission of an offense defined in article one hundred thirty of the
penal law which constitutes a felony and it appears that the victim of
such offense was less than fifteen years old, an indictment for such
offense may be accompanied by a special information, filed by the
district attorney with the court, alleging that the victim was less than
fifteen years old at the time of the commission of the offense;
provided, however, that such an information need not be filed when the
age of the victim is an element of the offense.
2. Prior to trial, or after the commencement of the trial but before
the close of the people`s case, the court, in the absence of the jury,
must arraign the defendant upon such information and advise him that he
may admit such allegation, deny it or remain mute. Depending upon the
defendant`s response, the trial of the indictment must proceed as
follows:
(a) If the defendant admits that the alleged victim was less than
fifteen years old at the time of the commission or attempted commission
of the offense, that allegation shall be deemed established for all
subsequent purposes, including sentencing pursuant to section 70.07 of
the penal law.
(b) If the defendant denies such allegation or remains mute, the
people may, by proof beyond a reasonable doubt, prove before the jury
or, where the defendant has waived a jury trial, the court, that the
alleged victim was less than fifteen years old at the time of the
commission or attempted commission of the offense.
3. Where a jury, pursuant to paragraph (b) of subdivision two of this
section, makes the determination of whether the alleged victim of the
offense was less than fifteen years old, such jury shall consider and
render its verdict on such issue only after rendering its verdict with
regard to the offense.
4. A determination pursuant to this section that the victim was less
than fifteen years old at the time of the commission of the offense
shall be binding in any future proceeding in which the issue may arise
unless the underlying conviction or determination is vacated or
reversed.
S 200.65 Indictment; special information for enterprise corruption.
When filing an indictment which charges enterprise corruption in
violation of article four hundred sixty of the penal law, the district
attorney must submit a statement to the court attesting that he has
reviewed the substance of the evidence presented to the grand jury and
concurs in the judgment that the charge is consistent with legislative
findings in said article. For purposes of this section only, "district
attorney" means the district attorney of the county, the attorney
general or the deputy attorney general in charge of the organized crime
task force, or where such person is actually absent or disabled, the
person authorized to act in his stead.
S 200.70 Indictment; amendment of.
1. At any time before or during trial, the court may, upon application
of the people and with notice to the defendant and opportunity to be
heard, order the amendment of an indictment with respect to defects,
errors or variances from the proof relating to matters of form, time,
place, names of persons and the like, when such an amendment does not
change the theory or theories of the prosecution as reflected in the
evidence before the grand jury which filed such indictment, or otherwise
tend to prejudice the defendant on the merits. Where the accusatory
instrument is a superior court information, such an amendment may be
made when it does not tend to prejudice the defendant on the merits.
Upon permitting such an amendment, the court must, upon application of
the defendant, order any adjournment of the proceedings which may, by
reason of such amendment, be necessary to accord the defendant adequate
opportunity to prepare his defense.
2. An indictment may not be amended in any respect which changes the
theory or theories of the prosecution as reflected in the evidence
before the grand jury which filed it; nor may an indictment or superior
court information be amended for the purpose of curing:
(a) A failure thereof to charge or state an offense; or
(b) Legal insufficiency of the factual allegations; or
(c) A misjoinder of offenses; or
(d) A misjoinder of defendants.
S 200.80 Indictment; superseding indictments.
If at any time before entry of a plea of guilty to an indictment or
commencement of a trial thereof another indictment is filed in the same
court charging the defendant with an offense charged in the first
indictment, the first indictment is, with respect to such offense,
superseded by the second and, upon the defendant`s arraignment upon the
second indictment, the count of the first indictment charging such
offense must be dismissed by the court. The first indictment is not,
however, superseded with respect to any count contained therein which
charges an offense not charged in the second indictment. Nothing herein
precludes the filing of a superseding indictment when the first
accusatory instrument is a superior court information.
S 200.95 Indictment; bill of particulars.
1. Definitions. (a) "Bill of particulars" is a written statement by
the prosecutor specifying, as required by this section, items of factual
information which are not recited in the indictment and which pertain to
the offense charged and including the substance of each defendant`s
conduct encompassed by the charge which the people intend to prove at
trial on their direct case, and whether the people intend to prove that
the defendant acted as principal or accomplice or both, and items of
factual information which are not recited in a special forfeiture
information or prosecutor`s forfeiture information containing one or
more forfeiture counts and which pertain to the substance of each
defendant`s conduct giving rise to the forfeiture claim, the approximate
value of property for which forfeiture is sought, the nature and extent
of the defendant`s interest in such property, and the extent of the
defendant`s gain, if any, from the offense charged. However, the
prosecutor shall not be required to include in the bill of particulars
matters of evidence relating to how the people intend to prove the
elements of the offense charged or how the people intend to prove any
item of factual information included in the bill of particulars.
(b) "Request for a bill of particulars" is a written request served by
defendant upon the people, without leave of the court, requesting a bill
of particulars, specifying the items of factual information desired, and
alleging that defendant cannot adequately prepare or conduct his defense
without the information requested.
2. Bill of particulars upon request. Upon a timely request for a bill
of particulars by a defendant against whom an indictment is pending, the
prosecutor shall within fifteen days of the service of the request or as
soon thereafter as is practicable, serve upon the defendant or his
attorney, and file with the court, the bill of particulars, except to
the extent the prosecutor shall have refused to comply with the request
pursuant to subdivision four of this section.
3. Timeliness of request. A request for a bill of particulars shall be
timely if made within thirty days after arraignment and before the
commencement of trial. If the defendant is not represented by counsel,
and has requested an adjournment to obtain counsel or to have counsel
assigned, the thirty day period shall commence, for the purposes of a
request for a bill of particulars by the defendant, on the date counsel
initially appears on his behalf. However, the court may direct
compliance with a request for a bill of particulars that, for good cause
shown, could not have been made within the time specified.
4. Request refused. The prosecutor may refuse to comply with the
request for a bill of particulars or any portion of the request for a
bill of particulars to the extent he reasonably believes that the item
of factual information requested is not authorized to be included in a
bill of particulars, or that such information is not necessary to enable
the defendant adequately to prepare or conduct his defense, or that a
protective order would be warranted or that the demand is untimely. Such
refusal shall be made in a writing, which shall set forth the grounds of
such belief as fully as possible, consistent with the reason for the
refusal. Within fifteen days of the request or as soon thereafter as
practicable, the refusal shall be served upon the defendant and a copy
shall be filed with the court.
5. Court ordered bill of particulars. Where a prosecutor has timely
served a written refusal pursuant to subdivision four of this section
and upon motion, made in writing, of a defendant, who has made a request
for a bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it is
satisfied that the items of factual information requested are authorized
to be included in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or conduct his
defense and, if the request was untimely, a finding of good cause for
the delay. Where a prosecutor has not timely served a written refusal
pursuant to subdivision four of this section the court must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, issue an order requiring the prosecutor to comply
or providing for any other order authorized by subdivision one of
section 240.70.
6. Motion procedure. A motion for a bill of particulars shall be made
as prescribed in section 255.20. Upon an order granting a motion
pursuant to this section, the prosecutor must file with the court a bill
of particulars, reciting every item of information designated in the
order, and serve a copy thereof upon the defendant. Pending such filing
and service, the proceedings are stayed.
7. Protective order. (a) The court in which the criminal action is
pending may, upon motion of the prosecutor, or of any affected person,
or upon determination of a motion of defendant for a court ordered bill
of particulars, or upon its own initiative, issue a protective order
denying, limiting, conditioning, delaying or regulating the bill of
particulars for good cause, including constitutional limitations, danger
to the integrity of physical evidence or a substantial risk of physical
harm, intimidation, economic reprisal, bribery or unjustified annoyance
or embarrassment to any person or an adverse effect upon the legitimate
needs of law enforcement, including the protection of the
confidentiality of informants, or any other factor or set of factors
which outweighs the need for the bill of particulars.
(b) An order limiting, conditioning, delaying or regulating the bill
of particulars may, among other things, require that any material copied
or derived therefrom be maintained in the exclusive possession of the
attorney for the defendant and be used for the exclusive purpose of
preparing for the defense of the criminal action.
8. Amendment. At any time before commencement of trial, the prosecutor
may, without leave of the court, serve upon defendant and file with the
court an amended bill of particulars. At any time during trial, upon
application of the prosecutor and with notice to the defendant and an
opportunity for him to be heard, the court must, upon finding that no
undue prejudice will accrue to defendant and that the prosecutor has
acted in good faith, permit the prosecutor to amend the bill of
particulars. Upon any amendment of the bill of particulars, the court
must, upon application of defendant, order an adjournment of the
proceedings or any other action it deems appropriate which may, by
reason of the amendment, be necessary to accord the defendant an
adequate opportunity to defend.
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