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Question 1:
Answer Below:
Question 2:
Answer Below:
anyone else was in the house. Defendant stated a number of times that
there was no one else in the house. Deputy Christopher Cooper, knowing
the call had been for a dispute between a father and son, asked defendant
directly where his father was. Defendant told Deputy Cooper he was
dead. Defendant then told the deputy his father was upstairs and that he
had to do it because he was going to kill his mother. (TMII 82-85). Deputy
Cooper testified that a subsequent search of the house revealed an
obviously deceased male in the upstairs office of 37 Coach Side Lane and
a shotgun was found in the garage as defendant had told him. (TMII 89,
97-99, 462).
Deputy Michael Mumm entered 37 Coach Side Lane with Deputies
Essem and Cooper to conduct a protective sweep of the residence shortly
after arriving at the location. During the protective sweep Deputy Mumm
found Mr. Tan sitting in a computer chair behind his computer desk.... He
was obviously deceased at the time. (TMII 116-117). The search of 37
Coach Side Lane further revealed a total of 4 spent Winchester casings,
each of which were proven to have been fired from a shot gun purchased
by defendants fraternity brother and fellow Pittsford football player Whitney
Knickerbocker at a Walmart in Cortland, New York. (TMII 257, 415, 5674
570). One spent casing was located inside the Toyota in the garage, one
spent casing was still loaded in the shotgun, and the other two casings
were located in the vicinity of where Jim Tan was shot and killed. Unused
ammunition was found inside a Toyota in the garage and the manual for
the Remington 870 was found in the trunk of a BMW parked next to the
Toyota in the garage. (TMII 180-196).
Dr. Dignan, the Chief Medical Examiner for the Monroe County
Medical Examiners Office, testified that Jim Tan died from multiple shotgun
wounds to his chest, shoulder and face. The wound was across the front
of the face and was very destructive and occurred while Jim Tan was still
alive. Dr. Dignan further testified that both the chest wound and face
wound were the result of close contact shotgun blasts. Mr. Tans face and
forearm showed evidence of a domestic animal such as a dog or cat licking
or chewing on his body. Although Mrs. Tans 911 call described the
shooting as having just happened, Dr. Dignan opined that Mr. Tan had
been dead for more than 24 hours. (TMII 630-658, 662).
That night police searched the defendant, Qing Tan, and Mrs. Tans
purse which was located inside the house. Defendant had $927.00 in cash
on his person when he was taken into custody. Mrs. Tan had a business
card for Lawrence Kasperek, Esq. in her pocket and a note with the name
John Parrinello, Esq. was found in her purse. (TMII 135-141, 147, 213).
Photographs were taken of defendant and Mrs. Tan which documented
that neither had injuries to their person. Deputies noted that defendant had
a tattoo on his arm that said Non Sibi. This same Latin phrase was found
in an email defendant sent on February 9, 2015, less than an hour before
the police were called to Coach Side Lane. The Latin phrase Non Sibi
translates Not for Self. (TMII 448-455, 481).
February 5, 2015, four days before Jim Tan was found dead in his
home office, defendant walked into his football coachs office at Cornell
University in Ithaca, New York, at approximately 10:00 am. He told Coach
Cullen that he would not be at weight training the next day. Defendant
explained to his coach of two years that he was having family problems
and had to get home. The two discussed his home situation for about
thirty minutes. The exact content of that conversation was not discussed at
trial, however, the evidence established that the week before, on January
28, 2015, at approximately 10:15 pm, deputies were called to 37 Coach
Side Lane, for a domestic incident between Qing Tan and Jim Tan. Mrs.
Tan declined to have Mr. Tan arrested, and Mr. Tan left the house
voluntarily that night. (TMII 274-281, 283-288).
Coach Cullen, seeing his player very distraught, crying volunteered
to drive defendant home to Pittsford where he could attend to his family
matters. Defendant turned down his coachs offer for help and left. As
defendant left Coach Cullen told him to call him, but defendant did not call.
Defendant left Coach Cullen and went to a Walmart in Cortland to
purchase a shotgun. (TMII 426-431, 719-722).
Just after noon that day defendant attempted to buy a shotgun from
the sporting goods department at the Cortland Walmart. The purchase
required approval from NCIS, however that agency delayed the sale,
informing Terry Bacorn, the assistant manager on duty, that the customer
could come back on February 11, 2015, to see if his purchase was
approved. Charles Tan left Walmart without the shotgun. (TMII 720-722).
At 4:00 pm, approximately four hours after defendant had entered the
Cortland Walmart to purchase a shotgun, Whitney Knickerbocker, a
fraternity brother of defendant, purchased a Remington 870 shotgun with
serial number RS50700V from the very same Walmart. When
Knickerbocker first attempted to purchase the shotgun the Walmart
employee assisting him saw that his license had only a Post Office box, not
a street address as required by law to make the purchase. The Walmart
employee explained to Knickerbocker that he could go to the Department
of Motor Vehicles in Cortland and change his address and come back.
Knickerbocker left and came back a short time later with a license that now
included the required street address. After his purchase was approved
Knickerbocker paid cash for the firearm as well as two boxes of
ammunition one box containing 15 rounds of Winchester shotgun slugs
intended for deer hunting and one box containing 10 rounds of Federal
shotgun bird shot intended for turkey hunting. (TMII 566-571).
The Remington 870 serial number RS50700V purchased by
defendants friend was the shotgun that killed Jim Tan as he sat in his
home office. (TMII 415). The same gun was located exactly where
defendant told the police it was in the attached garage at the Tan house
at 37 Coach Side Lane. A box of Winchester shotgun slugs and Federal
bird shot, the same ammunition purchased by defendants friend, were
found during a search of the Tans house. Four rounds from the
Winchester box were missing and four empty casings were found at 37
Coach Side Lane. (TMII 180-187). Defendants right middle finger print was
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found on one of the fired casings and his right thumb print was found on
the box of Winchester ammunition. (TMII 389).
On February 5, 2016, while defendants friend Whitney Knickerbocker
was buying the shotgun that would be used to kill Jim Tan, Jim Tan was at
work at Dynamax, a company he had started himself. When 27 year old
Megan Johnsen left for the day between 5:15 and 5:30 pm Mr. Tan was still
at the office. Later that night, at 8:40 pm, Mr. Tan sent Ms. Johnsen an
email. That was the last time Ms. Johnsen heard from Mr. Tan. He did not
appear at work the next day or on Monday, February 9, 2015. Her emails
to Mr. Tan went unanswered. (TMII 511-516). The last email opened on
Jim Tans home computer, which was still on in the office where he was
found dead, was opened at 8:36 pm on February 5, 2015. (TMII 189).
An hour and a half after Jim Tans last email, around 10:00 pm on the
same day the shotgun was purchased, defendant arrived at his friend
Jacob Grossmans house in Pittsford. Defendant had called Grossman at
approximately 12:48 pm that day and the two discussed meeting up that
night. During that telephone call defendant asked Grossman how much
money he had but did not tell Grossman why he was asking. (TMII 241248). When defendant arrived at the Grossmans he looked like he had
been crying. Defendant told Grossman that he may be leaving the country
the next day, but refused to discuss what was upsetting him. Grossmans
impression was that Charles Tan was saying goodbye. After defendant
left, Grossman talked to his mother about Tans visit and they decided to
drive past defendants house to check on him. Upon seeing his car at the
house at 37 Coach Side Lane, Grossman and his mother called 911 to ask
for assistance on checking on defendants welfare. (TMII 249-256).
Deputy Connell of the Monroe County Sheriffs Office responded to 37
Coach Side Lane to check the welfare of Charles Tan. He knew from a
fellow deputy that there had been a domestic incident at that location the
week before. He encountered defendant in the driveway of 37 Coach Side
Lane at approximately 11:35 pm. The deputy spoke to defendant and upon
being reassured that he was fine, the deputy left and reported to the
Grossmans that Charles Tan was not in need of assistance. (TMII 261267).
Four days later, on Monday, February 9, 2015, an email was sent
from an email address associated with defendant to a group of individuals.
The subject line of the email which was sent at 5:13 pm stated Showtime.
The body of the email read as follows:
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Forty-five minutes later Qing Tan called 911 to report her husband
had been killed by her son defendant Charles Tan. (TMII 74-75).
After hearing this evidence and articulating that he was considering
the evidence in a light most favorable to the People and drawing all
reasonable inferences from the evidence, the trial judge found legally
insufficient evidence that defendant committed the crime of Murder in the
Second Degree either as a principal or an accomplice.
Procedural History
The trial of Charles Tan began on September 14, 2015, with jury
selection. (Trial Minutes Volume I [TM1] 41). The People began to present
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their proof on September 22, 2015 and completed their direct case on
September 28, 2015. (Trial Minutes Volume II [TMII] 71, 729). After the
People rested, defendant made a motion for a trial order of dismissal
arguing:
The defense would like to make a trial order of
dismissal motion. The entire position is that the
People have failed to meet a prima facie case as it
relates to each and every charge rather, element
of the single charge of the indictment. Judge I feel
that the People have not been able to sustain their
burden and, therefore, we are making this motion.
(TMII 730).
The People opposed defendants general motion for a trial order of
dismissal arguing that the People had clearly met their burden, at which
point the Court inquired of defendant is there any particular element of the
charge that you would ask the Court to give special or significant attention
to or do you just rest on a general trial order of dismissal? Counsel for
defendant replied I rest on a general trial order of dismissal. The Court
thereafter reserved decision. (TMII 730-731).
The defendant presented evidence on his own behalf. On
September 28, 2015, defendant rested his case and the People declined to
present additional evidence on rebuttal. (TMII 790). At that time the
defense did not renew its motion for a trial order of dismissal, however,
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there was a lengthy legal argument regarding whether the Court would
charge the jury on accomplice liability as the indictment had charged
defendant with Murder in the Second Degree under sections 20.00 and
125.25(1).
During the legal argument regarding whether the jury would be
charged on Section 20 the Court indicated to the parties that it was not
ready to decide prior to summations whether the jury would hear the
instruction, stating:
Well, I guess I have to listen to the summations. I
dont know if thats a direction youre going in as the
defense. I dont know what Mr. Gargan is going to
say in response to it. Its almost like a Catch-22. If
I hear you say theres no evidence that suggests
that there is an accessorial circumstance here that
can be viewed relative to any fair look at the
resonable evidence or reasonable view of the
evidence, and then you argue that it is based on the
evidence, I guess, would be a matter to reserve
everyones right to be heard further at the
conclusion of the summations. I dont know. (TMII
804).
The People explained that there was sufficient evidence that defendant
aided in the procurement of the weapon, that being the murder weapon to
support the Section 20 charge. However, after hearing from the People,
the Court reiterated that it would need to hear summations before making a
determination as to whether to instruct on accomplice liability and court
was adjourned for the day. (TMII 804-807).
Just prior to court adjourning for the night, counsel for defendant
asked the Court permission to renew his motion for a trial order of
dismissal even though it was out of the normal order of events. Defense
counsel stated:
I would renew that [motion for a trial order of
dismissal], my application at this time with exactly
the same comments I made before, but I would ask
the Court to take into consideration not only what
the Peoples evidence was, but also now the
defense evidence that has been entered into that
has been entered in and we would ask you again to
consider a trial order of dismissal, that the People
have failed to meet their prima facie burden as it
relates to all of the evidence that is now before the
Court. (TMII 812).
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The defense argued against the charge. (TMII 892-893). Ultimately the
Court denied the Peoples request to charge Section 20.00 and the jury
was subsequently given the legal instructions. (TMII 897). At 2:45 pm on
September 29, 2015, the jury began its deliberations. (TMII 936).
The jury then deliberated for eight days until the morning of October
8, 2015, when just after 10:00 am the Court sua sponte raised the issue of
the jury not having reached a verdict. A discussion was held on the record
between Court and counsel regarding the possibility of declaring a mistrial
on consent of the parties. (TMII 1133-1136). Prior to the People giving
their consent to the Court discharging the jury under CPL 310.60(1), the
Court specifically explained to the People that under CPL 310.60(2) if the
jury was discharged by consent the defendant could be retried. The
People thereafter responded Thats our intention. Thank you. (TMII
1136).
After inquiring of the defendant whether he understood that he could
be retried and gaining his consent to the discharge of the jury, the Court
granted a mistrial and scheduled the matter for a future date for the People
to declare their intention should their intention be to go forward, schedule
a date and time to do that. (TMII 1138). The Court then stated ... also I
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a brief exchange between the Court and prosecutor, the Court ultimately
stated [t]he motion is being granted because the evidence was not legally
sufficient to establish the charge brought. In light of that, this Court is ruling
that the motion is granted, that the murder charge against Mr. Tan is
dismissed, that the bail may be exonerated, and that he may be released
forthwith. (TOD 9).
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ARGUMENT
THE TRIAL COURT ERRED IN GRANTING
DEFENDANTS MOTION FOR A TRIAL ORDER
OF DISMISSAL AFTER THE JURY HAD BEEN
DISMISSED HAVING FAILED TO REACH A
VERDICT AFTER 8 DAYS OF DELIBERATION
AND RETRIAL IS NOT FORECLOSED
The People appeal from the decision and order of Hon. James
Piampiano, issued November 5, 2015, which granted defendants motion
for a trial order of dismissal under CPL 290.10(1)(b). (TOD Decision
Minutes [TOD] dated November 5, 2015, 3-9). The trial order of dismissal
came nearly a month after the jury was discharged by consent of the
parties after the jury was unable to reach a verdict in eight days of
deliberation. Under the unique and egregious facts and circumstances of
this case the clear error of the trial court in granting a trial order of
dismissal and dismissing the indictment is reviewable on appeal and a
second trial of defendant is not barred by double jeopardy.
Granting of Defendants General Motion for a Trial Order of Dismissal
was Error
CPL 290.10(1) provides the statutory framework under which a trial
court is to consider a defendants motion for a trial order of dismissal. The
statute states:
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20
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Jim Tan was alive when defendant asked Jacob Grossman how much
money he had and made plans to see him later that night. (TMII 241-248).
Jim Tan was alive when defendant left Cornell University and went to the
Walmart in Cortland to purchase a shotgun. (TMII 720-722). Jim Tan was
alive when defendant had his fraternity brother and fellow Pittsford Mendon
graduate buy the murder weapon for him when his purchase was delayed.
(TMII 415, TMII 566-571). Jim Tan was alive when defendant arrived home
with the murder weapon. Jim Tan was alive at 8:40 pm on February 5,
2015 when he sent the last email from his home computer. (TMII 189, 511516).
When Jim Tan died we cannot be sure, but the evidence certainly
points to his death occurring within an hour of sending that last email
more likely minutes. The unread emails, the location where his body was
found, the computer still on; all point to his death being close in time to that
8:40 pm email. (TMII 189, 511-516). The defendants actions before and
after that time all point to the same conclusion. By 10:00 pm on February
5, 2015, defendant was at Jacob Grossmans house looking like he had
been crying and saying he was probably going to have to leave the country
the next day. (TMII 249-256). The reasonable inference is that by 10:00 pm
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on February 5, 2015, Jim Tan was dead. And his son, defendant herein,
shot him with a shotgun purchased for the defendant by a trusted friend
just for that reason. Defendant himself told the police he had to do it.
(TMII 82-85).
Then right before the police were called likely 4 days after
defendant pulled the trigger of his new shotgun three times, unloading deer
slugs at close range into his fathers face and chest defendant sent an
email to his friends entitled Showtime. (TMII 448-449). The show was not
that he was about to kill his father, the show was the act that the surviving
members of the Tan family were about to give to 911 and law enforcement.
Mrs. Tans hysterical call to 911, with defendant at the house with her,
during which she tells of overhearing an argument between her husband
and son and shots fired was clearly a show, given that in reality Jim Tan
was dead at least 24 hours and more likely for days, the family dog licking
and chewing on his face and arm.
The email defendant sent his fraternity brothers explained why
Non Sibi Not for Self. He killed his father for his mother. As he thought
out loud in his email how I like to think my actions reflect in the whole
scheme of things. (TMII 448-449). The record clearly established that
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defendant planned the execution of his father and followed through on that
plan even when obstacles arose. And when he sent that email less than
an hour before the police were called he knew he was going to be caught
telling his friends ...I will be back in the future. In the meantime, I hope
you will visit. (TMII 449).
The evidence that defendant executed his father as his father sat in
his home office was legally sufficient to require denial of defendants
motion for a trial order of dismissal. The trial courts decision was clearly
erroneous and must be reversed. The People and this community were
denied the opportunity to fairly try to completion the case against Charles
Tan. Justice requires reinstatement of the indictment and a new trial.
CPL 450.20(2) Authorizes the Peoples Appeal
The Peoples right to appeal in a criminal case is limited to the types
of appeals specifically authorized by CPL 450.20. In this case the People
appeal from the decision of County Court which granted defendants
motion for a trial order of dismissal under CPL 290.10(1)(b) after the jury
was discharged without rendering a verdict upon consent of the parties.
Although the People acknowledge the limits on appeals brought under CPL
450.20(2) regarding the appealability of motions granted under CPL
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290.10(1)(b), given the unique facts and circumstances of this case, the
trial courts decision is appealable and must be reversed. Compare People
v. Brown, 40 NY2d 381 (1976).
At the outset it must be made clear that granting a motion for a trial
order of dismissal under Subdivision 1(a) of CPL 290.10 has significantly
different consequences than the granting of such a motion under
Subdivision 1(b). Under Subdivision 1(a) the trial court decides a motion to
dismiss at the time it is made either at the close of the Peoples case or
at the close of all the evidence but prior to the jury having an opportunity
to deliberate on the charge at issue. Under Subdivision 1(b), however, the
trial court does not immediately decide the issue, instead the court is
authorized to reserve decision on the motion until after the verdict has
been rendered and accepted by the court. The New York Court of
Appeals has recognized the utility of waiting until the jury renders a verdict
in cases where there is a close question of legal sufficiency, since granting
of the motion prior to the verdict leaves the People without appellate
remedy. People v. Brown, 40 NY2d 381, 394 (1976); see also People ex
rel. Pendleton v. Smith, 54 AD2d 195 (4 th Dept. 1976); People v. Rogers,
59 AD2d 217, 219 (3 rd Dept. 1977).
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29
30
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the defendant had made it clear that they understood a second trial would
be occurring in this case. Defense counsel even stated, We are prepared
for that. (TMII 1137). At the time the parties consented to the discharge of
the jury it was obviously contemplated by both the People and the defense
that defendant would be facing a second trial. At that point in time it is clear
that defendant had abandoned his generic request for a trial order of
dismissal and elected to have his case decided by a second jury.
The assumption by the parties that the Court was simply waiting to
formally deny the motion for a trial order of dismissal was well founded
given that defendants motion for a trial order of dismissal was a general
motion. Although not legally significant for this appeal, it is nonetheless
important to note that defendants general motion for a trial order of
dismissal fell far short of what was required to properly preserve any
argument regarding the legal sufficiency of the evidence for potential
appellate review.
As the Court of Appeals reaffirmed in People v. Hawkins, 11 NY3d
484, 492 (2008), to preserve for appeal... a challenge to the legal
sufficiency of a conviction, a defendant must move for a trial order of
dismissal, and the argument must be specifically directed at the error
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trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy
Clause is not offended by a second prosecutions. Scott, 437 US at 93.
[W]hen a defendant persuades the court to declare a mistrial, jeopardy
continues and trial is generally allowed.... [I]n such circumstances the
defendant consents to a disposition that contemplates reprosecution,
whereas when a defendant moves for acquittal he does not. Evans v.
Michigan, 133 S.Ct. 1069, 1079 (2013).
Here the trial was concluded when defendant consented to a mistrial.
Unlike the circumstance when a trial court makes a determination that the
evidence is legally insufficient to withstand a motion for a trial order of
dismissal during trial, here the Court reserved on that decision. In fact, at
the time the defendant consented to discharge of the jury, defendant
specifically acknowledged that he would be subjected to a second trial and
was ready for that, despite the fact that his perfunctory motion for a trial
order of dismissal had not been ruled on.
The defendant in this case elected to terminate his first trial prior to
the jury reaching a verdict knowing that he would be subjected to a
subsequent trial. By doing so defendant is deemed to have deliberately
elected to forgo his valued right to have his guilt or innocence determined
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before the first trier of fact. The important consideration, for purposes of
the Double Jeopardy Clause, is that the defendant retain primary control
over the course to be followed.... Scott, 437 US at 93-94. The defendant
having chosen to forgo the option of having the first jury reach a verdict on
his case, cannot be heard to now complain that a second trial would violate
the Double Jeopardy Clause. With the Peoples appeal under CPL
450.20(2) being authorized by statute and not violative of the Double
Jeopardy Clause, this Court should consider the merits of the Peoples
claim that the trial court erred in granting defendants motion for a trial
order of dismissal.
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CONCLUSION
The trial courts decision granting the defendants motion for a trial
order of dismissal should be reversed and the indictment charging
defendant with one count of Murder in the Second Degree should be
reinstated.
Respectfully submitted,
SANDRA DOORLEY
Monroe County District Attorney
Ebenezer Watts Building
Suite 832
Rochester, NY 14614
Kelly Christine Wolford,
of Counsel
August , 2016
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