§ 460.60 Enterprise corruption; consent to prosecute.
1. For purposes of this section, when a grand jury proceeding concerns
a possible charge of enterprise corruption, or when an accusatory
instrument includes a count charging a person with enterprise
corruption, the affected district attorneys are the district attorneys
otherwise empowered to prosecute any of the underlying acts of criminal
activity in a county with jurisdiction over the offense of enterprise
corruption pursuant to section 460.40 of this article, in which:
(a) there has been substantial and significant activity by the
particular enterprise; or
(b) conduct occurred constituting a criminal act specifically included
in the pattern of criminal activity charged in the accusatory instrument
and not previously prosecuted; or
(c) the particular enterprise has its principal place of business.
2. A grand jury proceeding concerning a possible charge of enterprise
corruption may be instituted only with the consent of the affected
district attorneys. Should the possibility of such a charge develop
after a grand jury proceeding has been instituted, the consent of the
affected district attorneys shall be sought as soon as is practical, and
an indictment charging a person with enterprise corruption may not be
voted upon by the grand jury without such consent.
3. A person may be charged in an accusatory instrument with enterprise
corruption only with the consent of the affected district attorneys.
When it is impractical to obtain the consent specified in subdivision
two of this section prior to the filing of the accusatory instrument,
then that consent must be secured within twenty days thereafter.
4. When the prosecutor is the deputy attorney general in charge of the
statewide organized crime task force, the consent required by
subdivisions two and three of this section shall be in addition to that
required by subdivision seven of section seventy-a of the executive law.
5. Within fifteen days after the arraignment of any person on an
indictment charging a person with the crime of enterprise corruption the
prosecutor shall provide a copy of the indictment to those district
attorneys whose consent was required pursuant to subdivision three of
this section, and shall notify the court and defendant of those district
attorneys whose consent the prosecutor has secured. The court shall then
review the indictment and the grand jury minutes, notify any district
attorney whose consent under subdivision one of this section should have
been but was not obtained, direct that the prosecutor provide that
district attorney with the portion of the indictment and grand jury
minutes that are relevant to a determination whether that district
attorney is an “affected district attorney” within the meaning of
subdivision one of this section.
6. The failure to obtain from any district attorney the consent
required by subdivision two or three of this section shall not be
grounds for dismissal of the accusatory instrument or for any other
relief upon motion of a defendant in the criminal action.
Upon motion of a district attorney whose consent, pursuant to
subdivision three of this section, the court determines was required but
not obtained, the court may not dismiss the accusatory instrument or any
count thereof but may grant any appropriate relief. Such relief may
include, but is not limited to:
(a) ordering that any money forfeited by a defendant in the criminal
action, or the proceeds from the sale of any other property forfeited in
the criminal action by a defendant, which would have been paid to the
county of that district attorney pursuant to section thirteen hundred
forty-nine of the civil practice law and rules had the forfeiture action
been prosecuted in the county of that district attorney, be paid in
whole or in part to the county of that district attorney; or
(b) upon consent of the defendant, ordering the transfer of the
prosecution, or any part thereof, to that district attorney or to any
other prosecutor with jurisdiction over the prosecution, of the part
thereof to be transferred. However, prior to ordering any transfer of
the prosecution, the court shall provide to those district attorneys who
have previously consented to the prosecution an opportunity to intervene
and be heard concerning such transfer.
7. A district attorney whose consent, pursuant to subdivision three of
this section, the court determines was required but not obtained may
seek the relief described in subdivision six of this section exclusively
by a pre-trial motion in the criminal action based on the indictment
charging the crime of enterprise corruption. Such relief must be sought
within forty-five days of the receipt of notice from the court pursuant
to subdivision five of this section.
