# N.Y. CPL Law § 40.30: Previous prosecution; what constitutes

> New York · Statutes · In force

URL: https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.30

## Section

- **Citation:** N.Y. CPL Law § 40.30
- **Heading:** Previous prosecution; what constitutes
- **Jurisdiction:** New York
- **Kind:** Statutes
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** New York Code / Act CPL / Part 1 / Title C / Article 40 / Section 40.30

## Text

§ 40.30 Previous prosecution; what constitutes.\n 1. Except as otherwise provided in this section, a person "is\nprosecuted" for an offense, within the meaning of section 40.20, when he\nis charged therewith by an accusatory instrument filed in a court of\nthis state or of any jurisdiction within the United States, and when the\naction either:\n (a) Terminates in a conviction upon a plea of guilty; or\n (b) Proceeds to the trial stage and a jury has been impaneled and\nsworn or, in the case of a trial by the court without a jury, a witness\nis sworn.\n 2. Despite the occurrence of proceedings specified in subdivision\none, a person is not deemed to have been prosecuted for an offense,\nwithin the meaning of section 40.20, when:\n (a) Such prosecution occurred in a court which lacked jurisdiction\nover the defendant or the offense; or\n (b) Such prosecution was for a lesser offense than could have been\ncharged under the facts of the case, and the prosecution was procured by\nthe defendant, without the knowledge of the appropriate prosecutor, for\nthe purpose of avoiding prosecution for a greater offense.\n 3. Despite the occurrence of proceedings specified in subdivision\none, if such proceedings are subsequently nullified by a court order\nwhich restores the action to its pre-pleading status or which directs a\nnew trial of the same accusatory instrument, the nullified proceedings\ndo not bar further prosecution of such offense under the same accusatory\ninstrument.\n 4. Despite the occurrence of proceedings specified in subdivision\none, if such proceedings are subsequently nullified by a court order\nwhich dismisses the accusatory instrument but authorizes the people to\nobtain a new accusatory instrument charging the same offense or an\noffense based upon the same conduct, the nullified proceedings do not\nbar further prosecution of such offense under any new accusatory\ninstrument obtained pursuant to such court order or authorization.\n

## Nearby sections

- [N.Y. CPL Law § 40.10 Previous prosecution; definitions of terms](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.10.md)
- [N.Y. CPL Law § 40.20 Previous prosecution; when a bar to second prosecution](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.20.md)
- [N.Y. CPL Law § 40.30 Previous prosecution; what constitutes](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.30.md)
- [N.Y. CPL Law § 40.40 Separate prosecution of jointly prosecutable offenses; when barred](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.40.md)
- [N.Y. CPL Law § 40.50 Previous prosecution; enterprise corruption](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.50.md)
- [N.Y. CPL Law § 40.51 Previous prosecution: presidential reprieve, pardon or other form of clemency](https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.51.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/STATE_NY_ACPL_P1_TC_A40_S40.30. Check the current official text before relying on it. Not legal advice.