Legal Question in Criminal Law in New York

Re: consolidate charges

Whether two or more indictments may be consolidated generally has to do with whether or not the charges are similar in nature, arise out of the same transaction or proof of one can be related to proving another charge. To quote the law, "two offenses are properly joinable when (a) they are based upon the same act or upon the same criminal transaction; (b) even though based upon different criminal transactions, they 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; (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; and (d) though not directly joinable pursuant to paragraphs (a), (b) or (c), each is so joinable with a third offense set forth in the indictment." See, CPL � 200.20.

However, subdivision three of CPL � 200.20 provides:"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 one offense of each group, are the same or similar in law, as described 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. 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."

Thus, if you can show that the testimony to be lent on one charge is important to one case but should not be heard in relationship to another charge, and that there is a risk of substantial prejudice if the testimony is heard in both cases together, then you may argue that on this basis the D.A.'s application to consolidate is inappropriate. In such a case, the court can deny the effort to consolidate the multiple indictments because of the intention to testify. But the proposed testimony had better be impressive and not just about something incidental.