Gary Craig

@gcraig1

A judge's decision to dismiss the murder charge against Charles Tan cannot be reversed and Tan cannot be retried, appellate judges ruled Friday.

However, the panel of appellate judges said that the decision from Judge James Piampiano, while it can't be reversed, was wrong in its claims that the evidence was insufficient to support the murder charge. Tan was accused of murdering his father.

"Were we able to review the merits (of the allegations against Tan), however, we would agree with the People that the court erred in dismissing the indictment," the appellate panel ruled.

Tan had a bevy of supporters, many who claimed his father had been abusive. Others saw Piampiano's decision as one that might not have been accorded to other defendants of lesser means and with less public support.

Andreatta: Tan should have been retried, court rules

With the appellate ruling, the case against Charles Tan resides much as it has since his arrest in February 2015: Those who insist he is innocent will cling to the appellate ruling as evidence of the correctness of their beliefs while those assured of his guilt will highlight that the appellate court said the proof was sufficient for a retrial.

The District Attorney's Office could ask the Court of Appeals, the state's highest court, to review the decision, but that could be a long shot with the unanimous ruling from the appellate panel.

The DA's Office "acknowledged they had a tough tough road (with the appeal)," said Brian DeCarolis, one of Tan's attorneys. "The law's not on their side."

Piampiano, now a state Supreme Court justice, dismissed the murder charge in November 2015 after a month earlier declaring a mistrial in Tan's case. Jurors had deliberated for eight days without reaching a verdict, and Piampiano and the attorneys agreed to the mistrial.

In November 2015 Piampiano ruled on what is called a "trial order of dismissal," a standard request defense lawyers make during a trial for a dismissal of the criminal charges. To agree to dismiss the indictment, a judge, while looking at the evidence in the "light most favorable to the prosecution," must decide that the proof is not sufficient to warrant the allegations against the accused.

This is different from a trial verdict, which must be based upon proving guilt "beyond a reasonable doubt." Prosecutors only need to show evidence similar to that necessary for an indictment for a judge to reject a defense request for a trial order of dismissal.

Assistant District Attorney Kelly Wolford said the appellate decision was a "technical" one and not a ruling on Tan's innocence or guilt.

"They agreed with the argument that the judge was entirely wrong in dismissing this indictment," she said.

In November 2015, days after his election to state Supreme Court, Piampiano granted the defense request for a trial order of dismissal and threw out the murder charge.

In its appeal, the District Attorney's Office maintained that the timing of the decision allowed for an appeal and reversal of the Piampiano dismissal and a new trial for Tan. Prosecutors also argued that Piampiano appeared to have orchestrated the dismissal, indicating earlier that a retrial could be scheduled.

DeCarolis noted that Piampiano, after dismissing the jury in October 2015, had told Tan that he could be retried, but that the judge still had the request for a dismissal pending. Over the next month, Piampiano weighed the evidence and found it lacking, DeCarolis said.

DeCarolis contended that to reverse the dismissal would be a violation of Tan's "double jeopardy" protection, which ensures that an individual cannot be charged again for a crime once acquitted of the offense. The appellate panel concurred, saying Piampiano's dismissal of the indictment was the equivalent of a finding of innocence.

Tan was in his sophomore year at Cornell University on Feb. 9, 2015, when his father, Liang "Jim" Tan, was found dead in the second-floor office of their Coachside Lane home in Pittsford. Charles Tan was charged with murder and accused of shooting his father at close range with a 12-gauge shotgun.

Piampiano was a County Court judge when he presided over Tan's trial.

Earlier this week, the Commission on Judicial Conduct disciplined Piampiano for discussing the mistrial in interviews with the media.

In one interview Piampiano referred to Tan as a "sympathetic" figure, a remark that was particularly out of bounds for a judge, the commission said in its censure.

The disciplinary decision, which does not impact Piampiano's standing as a judge, had no impact on the appellate decision. The appellate decision focused solely on the legality of Piampiano's decision to dismiss the murder charge.

GCRAIG@gannett.com

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