Gary Craig

@gcraig1

The fate of the criminal case against Charles Tan does not — for now — hinge on whether he fatally shot his father, but instead on a much more arcane question: Did a judge dismiss the murder charge at a time when it could not again be pursued?

Appellate judges in Rochester heard arguments Wednesday over that very question, with an attorney for Tan maintaining that prosecutors cannot retry Tan for murder, and a lawyer for the District Attorney's Office contending otherwise.

The allegations against Tan have been polarizing from the outset. An accomplished Pittsford Mendon High School student who went to Cornell University, Tan was so popular with friends and their families that they quickly raised tens of thousands of dollars for his defense in 2015. His father was alleged to have been abusive to his wife and children, and the community divided into different factions over the allegations against Charles Tan, who later became the focus of a Dateline NBC episode.

Some supporters saw a young man who may have committed patricide to save the life of his mother. Other supporters questioned whether Tan really committed the homicide.

Meanwhile, others suggested that Tan was treated differently from those without means and accused of murder, especially after then County Court Judge James Piampiano dismissed the criminal charges. In a stunning decision after trial jurors did not reach a verdict, Piampiano, only days after his election to state Supreme Court, ruled that prosecutors had not provided enough evidence to justify the murder charge.

The ruling so incensed District Attorney Sandra Doorley that she said minutes afterward, "This is prejudice within the criminal justice system. This would have never happened to a city kid."

The District Attorney's Office appealed Piampiano's November 2015 decision, and on Wednesday the Fourth Department Appellate Division of state Supreme Court heard the appeal.

At issue is the timing of Piampiano's decision, coming after Tan's trial but without a verdict in the case.

Accused of murdering his father Liang "Jim" Tan with a shotgun in February 2015, Charles Tan was tried later that year. The jury once reported it had deadlocked during deliberations. Piampiano sent the jury back to try again.

While the jury was still deliberating, Piampiano decided to declare a mistrial, saying that a deadlock was likely. Attorneys agreed to the mistrial.

At a November 2015 court session at which attorneys expected Piampiano to schedule a new trial, the judge instead ruled on the defense's request for what is known as a "trial order of dismissal," or TOD in legal shorthand.

During criminal trials, defense lawyers routinely seek a dismissal of the criminal counts. To grant the dismissal, which rarely happens, a judge has to determine that the evidence — when looked at in the "light most favorable to the prosecution" — does not support the criminal charges. A judge typically rules after the prosecution's proof, but can rule after a verdict

At the November 2015 court session, Piampiano granted the request, tossing out the criminal charge against Tan. Prosecutors were stunned, saying at trial they had offered plenty of evidence to justify the criminal charge, including incriminating statements from Tan and his mother and proof of Tan's role in buying the shotgun.

Some see Charles Tan case as unequal justice: Law and Disorder blog

DA seeks new trial in Charles Tan murder case

The law allows prosecutors to appeal a judge's approval of a TOD that is rendered after a jury's verdict. In this appealable situation, a jury would have found a defendant guilty, but a judge then agrees to the TOD, in essence reversing the jury verdict.

But the jury never rendered a verdict in the Tan case, so Piampiano's ruling isn't subject to challenge, said Tan's attorney, Brian DeCarolis.

Charles Tan murder dismissal could be argued soon

DeCarolis said the law is clear, and Piampiano's decision cannot be appealed or reversed.

"The major issue is 'Can they appeal it?' " he said. " ... There are so many things that are gray in the law and so few things that are black and white. And this is one of those things that is black and white."

The District Attorney's Office maintains that the conversation that attorneys had with Piampiano when they consented to a mistrial is crucial to the argument. In that conversation, Piampiano noted that Tan could be tried again. Tan acknowledged that he knew he could be subjected to a second trial.

With the consent to a mistrial, Tan "elected to terminate his first trial prior to the jury reaching a verdict knowing that he would be subjected to a subsequent trial," Assistant District Attorney Kelly Wolford argued in court papers. That decision changes the legal terrain, allowing an appeal, the District Attorney's Office contends.

By agreeing to a mistrial with the jury still deliberating, Tan "chose at that point to not go to verdict with that jury," Wolford said Tuesday.

Once the lawyers agreed to a mistrial and Piampiano dismissed the jury, the judge was precluded from ruling on the TOD, prosecutors say.

That choice to bring deliberations to an end also means that Tan cannot claim a new trial is precluded by the concept of "double jeopardy," Wolford said. "Double jeopardy," one of the law's most historically entrenched fundamentals, prevents an individual from being tried again for a crime once found not guilty of the offense.

DeCarolis says that Tan was found not guilty by Piampiano's ruling. Prosecutors say that the trial process ended with the agreement to a mistrial and the jury's discharge, and Piampiano's subsequent decision is moot.

Court hearings took place Wednesday morning.

GCRAIG@Gannett.com