Will the Murder Charges Against Charlie Tan Be Dismissed Once and For All?

ROCHESTER, N.Y. -- Charlie Tan's case was the third to be heard Wednesday before a five judge panel. Monroe County Assistant District Attorney Kelly Wolford argued on behalf of the people that former County Court Judge James Piampiano erred in his decision for a Trial Order of Dismissal, or TOD.

Wolford says Piampiano should have made his ruling at the end of the trial rather than a month later.

"What we're asking the court to do is to get to the heart of what this issue is, which is the people presented significant proof that Charles Tan was guilty of killing his father. And the judge decided for himself and took that out of the hands of the state of New York and that we feel was in error and we're asking the court to give us a chance to try him again in front of a jury who can determine his guilt or innocence," said Kelly Wolford.  

Tan's attorney, Brian DeCarolis, says the timing of Piampiano's decision, which came shortly after he was elected State Supreme Court Justice, means nothing, adding the DA's Office has no grounds for appeal.

"The people only have the ability to appeal if there is a rendition of a verdict and obviously that verdict has to be guilty because if it's not guilty, that obviates the need for a TOD. But the rendition of a guilty verdict then the granting of a Trial Order of Dismissal. The people can take that and they can take that all day here and appeal that, and that's not what we had here," said DeCarolis.

Tan, a former Cornell University student, was arrested for the February 2015 murder of his father Jim Tan inside their Pittsford home.

Tan's defense team argued at trial Jim Tan was abusive to his wife and children. After days of deliberations, the jury failed to reach a verdict and Piampiano dismissed the case. That brings into question double jeopardy and whether Tan can be tried again for the same crime.

"The language that this court often uses is that a granted Trial Order of Dismissal is tantamount to an acquittal. So when that was entered, Judge Piampiano enters that decision, it's essentially an acquittal, it's essentially a not guilty,” said DeCarolis.

The District Attorney's Office believes double jeopardy does not apply in this case, saying Tan agreed to be retried.

"In the dismissal of the jury in the first case when the jury had not reached a verdict, he actually went on record and said 'I understand I will be retried. I understand that double jeopardy does not apply and I understand I'm going to have a second trial,'" said Wolford.

March 17 is the earliest the Appellate Court will render its decision. If the appeal is denied, the DA's office says it may present the case to a new grand jury.