Assistant Monroe County District Attorney Kelly Wolford said during arguments before a Fourth Department panel Wednesday that her office could attempt to re-indict Charlie Tan for the death of his father.
In November 2015, after a mistrial was declared in the case because of a hung jury, then-Monroe County Court Judge James Piampiano issued a trial order of dismissal, stating the prosecution presented no valid evidence.
Wolford spent almost all of her 10 minutes before the Appellate Division justices trying to convince them that the issue was actually appealable.
New grand jury
Part of Wolford’s argument is that Piampiano’s order may not be valid because it was not decided promptly after the jury was discharged. Instead, he made the announcement about a month later, during a court session where everybody expected a date to be set for a second trial.
“Under your theory, couldn’t the DA not pursue an appeal and proceed to trial?” one justice asked Wolford.
“That actually has been brought up,” she answered.
“We have discussed whether or not that is a potential other way of dealing with that,” she said, adding that the case would have to be presented to a new grand jury.
“You’re saying that this may still go on?” a justice asked Wolford.
“I’m saying that it’s something that we would have to reconsider,” she answered.
Before the issue could be discussed further, Presiding Justice Gerald J. Whalen interjected: “That’s really not before us is it?”
Tan’s attorney, Brian DeCarolis, who was before the panel for only about 2½ minutes, said the applicable statutes “are very very clear in this case.”
“Despite the People’s efforts to try and make this procedural history more complicated than it is, it was very straightforward,” he said.
“It was a trial order of dismissal granted before the rendition of a verdict and the statutory language of the New York State Criminal Procedure Law precludes them to appeal this,” he said.
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.
“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 when he granted the motion.
“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.”
Wolford barely had started making her argument when she was asked: “Where do you find your authority to bring this appeal?”
“We acknowledge our right to appeal is very limited under the appeals statute,” Wolford said.
“The courts have continuously said that that statute allows the People to appeal when the statute says it can and when double jeopardy does not affect the defendant,” she said.
Wolford said Tan waived his right to avoid double jeopardy when he agreed to a mistrial knowing the prosecutor planned to retry him.
“Here, because defendant acknowledged and consented to retrial, knowing very well what was happening, his double jeopardy rights aren’t impacted,” Wolford said.
Whalen asked Wolford if a waiver had to be “more expressly articulated.”
She said Piampiano went through a very specific colloquy telling Tan that he would likely be retried and that his rights against double jeopardy would not prevent a second trial. Tan was asked if he understand that and he said, “Yes,” and his lawyers also said they understood, Wolford said.
But double jeopardy doesn’t become an issue with a mistrial, unless there also is a trial order of dismissal, one justice pointed out.
Wolford said the trial order of dismissal should not affect the double jeopardy question because it came so long after the jury was discharged.
“That’s a pretrial motion in the second trial. That is no longer a determination from what happened in the first trial,” she told the justices.
Justice Nancy E. Smith recused herself in the case. No explanation was given.