Provides that a motion for a defendant to be tried separately may be granted upon its own motion

BILL NUMBER:S5651

Title of bill

An act to amend the criminal procedure law, in relation to motions for a defendant to be tried separately

This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Advisory Committee on Criminal Law and Procedure.

This measure would amend CPL 200.40 to allow a trial court the discretion, on its own motion, to order that defendants be tried separately. The amendment would conform New York practice to Federal practice and would give a court appropriate flexibility where good cause exists for separate trials.

Under current law, a trial court has the discretion to order that defendants be tried separately "upon motion of a defendant or the people" on a showing of good cause (CPL 200.40(1)). Because this provision does not explicitly allow the court to entertain the motion on its own initiative, severance may only be granted on the application of one of the parties, even where there is good cause for severance (see Matter of Brown v Schulman, 245 AD2d 561 (2d Dept 1997)).

Federal courts, by contrast, have the power to grant severance sua sponte (see e.g. United States v De Diego, 511 F2d 818 (DC Cir 1975)); see also LaFave, Criminal Procedure, at § 17.3 (a) ("the court also has the power to order a severance even when such action has not been specifically requested by either the prosecution or a defendant")). Moreover, the American Bar Association standard for severance provides that "the court may order a severance of offenses or defendants on its own motion before trial if a severance could be obtained on motion of the prosecution or a defendant, or during trial if the severance is required by manifest necessity" (ABA Standards for Criminal Justice, Joinder and Severance, Standard 13.4.2 (2d ed. 1980)).

We believe that a court should have the discretion, where good cause exists, to order a defendant to be tried separately. There is little reason to limit a court's discretion to sever a defendant from a case. Where good cause exists, the failure of a party to request severance or delay a motion to sever will often be for tactical reasons that interfere with the administration of justice. This measure would provide the court with the ability to manage caseloads more effectively, especially in cases involving large numbers of defendants, and will reduce instances of improper gamesmanship by the parties.

This act shall take effect immediately and shall apply to all criminal actions and proceedings commenced on or after such effective date.

Legislative History: None. New proposal.