CPL § 40.40

Separate prosecution of jointly prosecutable offenses; when barred · as in force on May 31, 2026

§ 40.40 Separate prosecution of jointly prosecutable offenses; when

barred.

1. Where two or more offenses are joinable in a single accusatory instrument against a person by reason of being based upon the same criminal transaction, pursuant to paragraph (a) of subdivision two of section 200.20, such person may not, under circumstances prescribed in this section, be separately prosecuted for such offenses even though such separate prosecutions are not otherwise barred by any other section of this article.

2. When (a) one of two or more joinable offenses of the kind specified in subdivision one is charged in an accusatory instrument, and (b) another is not charged therein, or in any other accusatory instrument filed in the same court, despite possession by the people of evidence legally sufficient to support a conviction of the defendant for such uncharged offense, and (c) either a trial of the existing accusatory instrument is commenced or the action thereon is disposed of by a plea of guilty, any subsequent prosecution for the uncharged offense is thereby barred.

3. When (a) two or more of such offenses are charged in separate accusatory instruments filed in the same court, and (b) an application by the defendant for consolidation thereof for trial purposes, pursuant to subdivision five of section 200.20 or section 100.45, is improperly denied, the commencement of a trial of one such accusatory instrument bars any subsequent prosecution upon any of the other accusatory instruments with respect to any such offense.

Official sourcehttps://www.nysenate.gov/legislation/laws/CPL/40.40

In plain English

Offenses from the same criminal transaction that could be joined must sometimes be prosecuted together, even where § 40.20 would not bar separate cases.

(1) The rule covers offenses joinable under § 200.20(2)(a) because they arise from the same criminal transaction.
(2) If one joinable offense is charged but another is not charged in that or any other instrument in the same court, although the People had legally sufficient evidence of it, then starting trial or a guilty plea on the charged instrument bars later prosecution of the uncharged offense. ★
(3) If joinable offenses are in separate instruments in the same court and the defendant's consolidation motion under § 200.20(5) or § 100.45 is improperly denied, starting trial on one instrument bars later prosecution on the others. ★

Marked in the text: penalties, time limits, sums of money. Editorial emphasis added by this edition; it does not appear in the statute as enacted.

In print

This provision appears in Volume 1 — The Court Officer in Plain English; Volume 2 — The Court Officer: Criminal Procedure Law; Volume 2 — Your Career: Criminal Procedure in Plain English.