Assistant Monroe County District Attorney Kelly Wolford will be trying to convince a Fourth Department panel Wednesday that her office should get another chance to try Charlie Tan, who had murder charges dismissed in 2015, after a jury failed to reach a verdict.
But first she must persuade the panel that she has the right to even be heard.
“We have a limited avenue for appealing,” said Wolford, deputy chief of the DA’s Appeals Bureau.
“The People, in New York state, are limited to the circumstances under which they can appeal a judge’s decision. So, what really becomes the focus of the issue here is whether or not the judge’s decision in this case was appealable. We have to get past that hurdle in order to get to whether or not the judge erred in deciding that there was insufficient proof,” she said.
Tan’s lawyer, Brian DeCarolis, claims the decision is irreversible.
“No such authorization is present in the Criminal Procedure Law, and as such, the issue presented is not appealable,” he wrote in his brief to the Fourth Department.
Tan, a Cornell University student at the time, was accused of fatally shooting his father, Liang “Jim” Tan, at their Pittsford home in February 2015. After a four-week trial, the jury deliberated for 50 hours, but was unable to reach a verdict and then-Monroe County Court Judge James Piampiano declared a mistrial.
During a court session on Nov. 5, 2015, when Piampiano was expected to schedule a new trial, he instead granted the defense motion for a trial order of dismissal.
Piampiano had reserved decision both times the defense moved for the order —after the prosecution finished presenting their case and also after the close of the defense case.
Wolford claims the defense failed “to make a specific motion for a trial order of dismissal,” which she said is required under law.
“Simply saying that the people have not supplied sufficient evidence to prove the defendant guilty isn’t enough,” she said.
“They’re supposed to make a very specific motion, and in this case all they did was to say the people didn’t meet their burden. It was very non-specific,” she said.
DeCarolis dismissed Wolford’s claim that he was required to provide a more detailed argument with his motion for a trial order of dismissal.
“Frankly, it’s self-evident, he said.
“While it may be interesting for her to raise that, it doesn’t really carry the day. It doesn’t really matter.”
Wolford also says Piampiano did not have a sound basis for his decision to grant the trial order of dismissal.
“In considering the motion he must consider all the evidence in a light most favorable to the People. So all the evidence comes in. All credibility goes toward us. All inferences are supposed to go toward the People, and then he’s supposed to make a determination basically whether or not it’s more than 50 percent likely that he’s committed the offence,” she said.
She claims Piampiano “completely ignored” the evidence, even though he said in his decision that he was viewing the evidence in a light most favorable to the People.
DeCarolis said Piampiano’s decision followed the law and “he went to some rather significant lengths in terms of explaining his decision.”
“The interesting thing about a trial order of dismissal, which requires the Court to view the evidence in the light most favorable to the People, is that there has to be evidence to view,” Piampiano said when he granted the motion.
“In this case there was no evidence presented that the defendant was ever in possession of the alleged murder weapon or had anything to do with procuring it. There was no evidence presented that the defendant ever fired it. There was no evidence presented that the defendant ever touched it,” Piampiano said.
“There was no evidence the defendant had anything to do with the weapon being located in his mother’s garage at the time it was found or otherwise,” he said.
“There was no evidence, circumstantial, or otherwise, placing the defendant at the murder scene at the time of the murder,” he said.
When Tan’s mother called police to report the killing, she said her son was responsible. Charlie Tan allegedly told police “I had to do it. He was going to kill my mother.”
Piampiano said in court that the statement “was equivocal at best and unsupported by any evidence in the case at worst.”