Tan defense lawyer surprised by talk of possible re-indictment

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Charlie Tan’s attorney, Brian DeCarolis, was caught off guard Wednesday by Assistant Monroe County District Attorney Kelly Wolford‘s suggestion that her office might try to re-indict Tan if the Fourth Department doesn’t overturn a lower court decision to dismiss the case against Tan.

“That came out of nowhere today,” DeCarolis said after he and Wolford argued before the Appellate Division of state Supreme Court Wednesday morning.

“That thought of them re-indicting him hasn’t really crossed my mind as a plausible legal, rational, reasonable way for them to move forward,” DeCarolis 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 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.

On Wednesday, during arguments in the appeal of Piampiano’s decision, one justice asked Wolford if she thought the DA could have taken the case to a new trial instead of appealing the decision.

“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.

DeCarolis’ comment about Wolford’s remarks: “Double jeopardy, double jeopardy, double jeopardy, right?”

“I can’t imagine why they would do that and how that would work,” he said.

DeCarolis told the appellate panel the applicable statutes “are very very clear in this case.”

“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.