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UPDATE: Arguments heard in appellate hearing for Charlie Tan

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UPDATE:

Charlie Tan may have left Rochester without a trace, but he’s left in his wake a still active legal battle over whether or not he could face a second trial for the murder of his father.

“This is very unique sets of facts and circumstances. I could not find a case out there that hits this on all fours but the importance of this I think this court should find a way to get to the heart of this issue,” said Assistant District Attorney, Kelly Wolford.

The “heart of the issue,” ADA Kelly Wolford argued in front of the appellate court, is that judge Piampiano acted in an improper, and calculated way in order to dismiss the charges against Tan. Wolford says a mistrial was declared and that all parties  agreed there would be a second trial.

“We argued that it’s not double jeopardy because he agreed to be retried and the dismissal of the jury in the first case when they had not reached a verdict and he went on record saying, ‘I understand double jeopardy doesn’t apply, I understand,” said Wolford.

Tan’s attorney, Brian Decarolis says plainly, that never happened.

“For them to suggest that double jeopardy was in some shape or form waived by James nobles, Charlie Tan or myself or collectively it’s just not there,” said Decarolis. 

The unusual part of Piampiano’s decision, and the basis for the people’s appeal, Wolford says, is that instead of granting the trial order of dismissal at the time the mistrial was declared, the judge waited for more than a month.

“I think he wanted to place on the record that we planned to proceed [with a second trial] and knowing full well when we did that then he was going to dismiss the case,” said Wolford. 

Decarolis called this maneuver “legal gymnastics” by the DA’s office, and argued that at the time of the mistrial, the judge’s ability to dismiss the charges was still pending.

“No mystery to the people, to the defense, to Mr. Tan himself, that that was still an outstanding issue that was coming in the future,” said Decarolis. 

————–

Lawyers made their arguments in front of an appellate court Wednesday for the case of Charlie Tan. Prosecutors argued the Pittsford man should be retried for the 2015 murder of his father.

The case was thrown out by a judge in November of that year after a mistrial was declared.

The District Attorney’s office argued this was all about timing. Assistant district attorney Kelly Wolford says everyone agreed to a mistrial and that’s why they have grounds for an appeal.

“We argued that it’s not double jeopardy because he agreed to be retried and the dismissal of the jury in the first case when they had not reached a verdict and he went on record saying I understand double jeopardy doesn’t apply,” said Wolford.

“For them to suggest that double jeopardy was in some shape or form waived by James Nobles, Charlie Tan or myself or collectively it’s just not there,” said Brian Decarolis, Tan’s attorney. 

It could be weeks before a decision is made. And even if that decision is in favor of Tan, there is still recourse for the assistant district attorney’s office to simply bring this before a grand jury again. Wolford says that’s complicated and they’re not looking to do that at this point.

ORIGINAL:

The Monroe County District Attorney’s office has filed a motion to retry a Pittsford man in the murder of his father.

Charlie Tan’s case was thrown out by a judge after a mistrial was agreed upon in November 2015.

Attorneys were stunned initially when the charges were dismissed after a mistrial, and say they’re equally stunned now – as Tan’s attorneys argue this latest appeal by the state is not valid.

We spoke to a former prosecutor turned defense attorney who helped sort out what the law actually says about this.

“On the 911 call, it shows his mom saying, ‘My son shot my husband,’ so that combined with the fact that Charlie Tan said himself that did it and then hid the gun in the garage and told police where the gun was,” said Kelly Wolford, Assistant District Attorney. “I completely disagree with the judge’s rendition of what the facts proved.”

“If you sat through the case, if you watched every single day of testimony, you knew there were holes in their case,” said Brian DeCarolis, Tan’s attorney. “It’s funny they said they had proof beyond a reasonable doubt, because if you ask the jury, they’ll say it’s not the case.”

Can they? Or can’t they? The big question in the Charlie Tan case is now whether or not the man accused of killing his father can be retried.

“What we did today was asked the court to reconsider if the judge erred in setting aside the verdict,” said Wolford. “And after reviewing the evidence, I hope that they will find that the judge was in error and reverse that decision.”

Prosecutors filed a brief with the appellate court looking to overturn Judge Piampiano’s decision to dismiss charges – after a mistrial was already declared.

Former prosecutor turned defense attorney Frank Ciardi says this entire situation is nearly unprecedented, and far from black and white.

“The issue’s ultimately going to become whether or not the judge could do what he did,” Ciardi said.

Ciardi says that according to a subdivision of criminal procedure law 290, the state is arguing that the judge erred in granting an order of dismissal after both the prosecution and defense had consented to a mistrial. He says it’s not clear, though, whether this could work.

“It’s not clear whether or not double jeopardy applies, and if the people can appeal this trial order of dismissal,” he said.

But he says the people may have a shot, since judges normally wait until a decision is made by a jury to dismiss charges, but in this case, no decision by jury was ever reached.

Long shot or not, the DA’s office says it’s important to try.

“Jim Tan deserves justice, needs justice, and the evidence in the case proved beyond a reasonable doubt who killed him,” Wolford said. “And the judge’s decision has robbed Jim Tan of justice in this case.”

He also added that this case is exceptionally rare because usually when a judge dismisses a case, it’s because there is not any evidence at all to support the prosecution’s case. Ciardi said he didn’t feel that necessarily applied here.

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