N.Y. Laws » CHAPTER Criminal Procedure / PART General Provisions / TITLE General Principles Relating to Requirements For and Exemptions From Criminal Prosecution / ARTICLE Exemption From Prosecution By Reason of Previous Prosecution
New York Consolidated Laws

N.Y. Criminal Procedure Law § 40.40 (2026)

Separate prosecution of jointly prosecutable offenses; when barred

✓ text as retrieved May 2026 (this copy records no edition or section history)
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§ 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.
Notes of Decisions
Cited in 3 cases, 2008–2010 · leading case: Matter of Suarez v. Byrne, 890 N.E.2d 201 (N.Y. 2008).
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Matter of Suarez v. Byrne, 890 N.E.2d 201 (N.Y. 2008). “[4] Criminal Procedure Law § 40.40 (2), New York's compulsory joinder statute, limits a prosecutor's authority to pursue charges that could have been joined in a prior indictment, but were neither indicted nor submitted as lesser included offenses.”
People v. Frederick, 931 N.E.2d 517 (N.Y. 2010). “” Supreme Court granted the motion on the ground that Criminal Procedure Law § 40.40 (2) barred the People from prosecuting defendant for manslaughter because this crime was a join-able offense uncharged in the original indictment on which trial had commenced.”
People v. Hester, 20 Misc. 3d 231 (N.Y. Sup. Ct. 2008). “In addition, since at the time defendant entered his plea the prosecution was not in possession “of evidence legally sufficient to support” a murder conviction, double jeopardy does not attach under the mandatory joinder provisions of Criminal Procedure Law § 40.40 (2) (b)…”
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