QUESTIONS PRESENTED

Question 1:

Did the trial court err in granting a trial order of dismissal

after the parties consented to a mistrial and the matter
was adjourned with the understanding that the defendant
would face a second trial?

Answer Below:

Not addressed by the trial court.

Question 2:

Does an erroneously granted trial order of dismissal

issued a month after a mistrial was granted foreclose a
second trial?

Answer Below:

Not addressed by the trial court.

STATEMENT OF THE CASE

Trial Evidence
At 6:09 pm on February 9, 2015, Qing Tan, the wife of Liang Jim
Tan and mother of defendant Charles Tan, placed a frantic call to 911. As
the 911 operator struggled to understand the hysterical Mrs. Tan and
gather information for the dispatch, Mrs. Tan finally gave the operator her
address and said she heard an argument between her son and her
husband and heard shots. Mrs. Tan told the 911 operator that someone in
the house had a gun. She said her husband and son were upstairs and
that her husband was already dead. Then Mrs. Tan told the operator that
her son shot her husband. During the various calls to and from the 911
center while police were responding, Mrs. Tan explained her son was 19
years old and was still with her in the house, that there was no one else in
the house, that her son had used a long gun, that her son had put the gun
away, and that she had checked on her husband and he was dead in the
upstairs of the house. Mrs. Tan also told the operator that she did not know
where the gun was and when the operator told her to ask her son, Mrs. Tan
responded He doesnt want to tell you right now. (TMII 72-74, Peoples
Exhibit 278).
2

As soon as Mrs. Tan provided and address and described and

argument, deputies from the Monroe County Sheriffs Office were
dispatched to 37 Coach Side Lane, in the Town of Pittsford. Based on the
limited information able to be obtained from Mrs. Tan at the beginning of
the call, the original dispatch was for a domestic dispute. As more
information was gathered it was broadcast to responding deputies. By the
time deputies arrived at the location they were aware that the call was for a
dispute between a father and son, that there was a weapon involved, and
that the son had possibly shot his father. (TMII 81-82).
Within ten minutes of the 911 call Monroe County Sheriffs deputies
were at 37 Coach Side Lane. When the first deputy arrived defendant and
his mother were standing in the driveway, their hands in the air, speaking
to each other in a foreign language. It appeared to that first deputy that the
people in the driveway had not seen her arrive. (TMII 227-231, 237-238).
When there were three deputies on scene, they approached defendant and
his mother. Mrs. Tan was still on the phone with 911 when deputies
approached. (Peoples Exhibit 278). Defendant was ordered to the ground
at gun point, handcuffed, and patted down. Defendant was asked where
the gun was and he stated in the garage. Defendant was then asked if

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
8

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:
10

My brothers, in the coming days you will start to

hear things in the news and possibly get a couple
visits from the authorities. Dont listen to anything
you hear. A few already know my true story and in
due time you will also. I love you all so much and
you have given me the family I never had. I can only
hope I have left a positive impression on all of your
lives, as well. Non Sibi hope or, Im sorry,
scratch that how I like to think my actions reflect in
the whole scheme of things. Thank you for
teaching me this lesson. Special thanks to
Chaverra for letting me steal the location on my
arm. The best days are ahead of all of us and I
promise I will be back in the future. In the
meantime, I hope you will visit. As always, fuck the
haters. Love, Charlie Tan. (TMII 448-449).

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
11

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,
12

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).

Following that statement by the Court, counsel for the defendant

reminded the Court that irrespective of what the parties argue in
summations there must be a reasonable view of the evidence to support
charging accomplice liability before the court should charge it to the jury.
13

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).

The People relied on their prior arguments in support of denial of the

motion. The Court again reserved decision on defense motion for a trial
order of dismissal and the matter was adjourned to the following day for
14

summations. (TMII 812-813). Prior to summations, discussion continued

between the parties and the Court over whether the Court would charge
the jury on accomplice liability. Although both parties clearly were
requesting clarification on the legal instructions the jury would be hearing
regarding accomplice liability (see generally, People v. Bacalocostantis,
111 AD2d 991, 992 [3rd Dept. 1985] and CPL 300.10[4]), the Court
nevertheless decided Im going to reserve my right to revisit that [request
to charge Section 20.00] at the close of summations if something not
contemplated at the time of the charge conference is suggested on
summations relative to that and Im going to reserve everyones right to be
fully and fairly heard in that regard. (TMII 814-815). After the defense
summation, the People again requested the Court rule on whether the jury
would be instructed on accomplice liability prior to the Peoples closing
statement. Defendant again opposed the Court charging the jury on
Section 20.00. The Court once again reserved decision on whether it
would charge accomplice liability. (TMII 859-861).
Following the Peoples summation the People again requested the
Court charge the jury on accomplice liability. (TMII 886). The People set
forth what evidence supported the Section 20.00 charge. (TMII 886-891).

15

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
16

have reserved on the trial order of dismissal. That reservation continues at

this point. The People requested the Court rule on the motion for a trial
order of dismissal at that point, and the Court declined. (TMII 1138-1139).
The jury returned to the courtroom and was informed that the Court
declared a mistrial and that their service was no longer need. (TMII 11391140). The case was then adjourned to November 5, 2015.
On November 5, 2015, the parties assembled in the courtroom to
schedule the new trial date. The Court inquired of the People whether it
was their intention to retry defendant. The prosecutor responded Yes,
Judge. We will be intending to try the case again. (TOD 2). After hearing
that the People intended to retry the defendant, the Court immediately
returned to the issue of the undecided motion for a trial order of dismissal.
Citing New Yorks standard for determining a motion for a trial order of
dismissal, the Court thereafter listed the deficiencies it saw in the Peoples
case and ultimately stated: The Court, therefore, is bound to conclude that
the proof offered upon the trial of the matter failed to establish a prima facie
case. (TOD 7). Shortly after that statement the prosecutor inquired
Judge, may I briefly speak? The Court replied, No you may not. If you
speak Im going to put you in handcuffs and put you in jail. (TOD 7). After

17

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).

18

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:

19

At the conclusion of the peoples case or at the

conclusion of all the evidence, the court may ...
upon motion of the defendant (a) issue a trial order
of dismissal, dismissing any count of an indictment
upon the ground that the trial evidence is not legally
sufficient to establish the offense charged therein or
any lesser included offense, or (b) reserve decision
on the motion until after the verdict has been
rendered and accepted by the court. Where the
court has reserved decision and the jury thereafter
renders a verdict of guilty, the court shall proceed to
determine the motion upon such evidence as it
would have been authorized to consider upon the
motion had the court not reserved decision. If the
court determines that such motion should have
been granted upon the ground specified in
paragraph (a) herein, it shall enter an order both
setting aside the verdict and dismissing any count
of the indictment upon such ground. If the jury is
discharged before rendition of a verdict the court
shall proceed to determine the motion as set forth in
this paragraph.
Legally sufficient evidence is competent evidence which, if accepted
as true, would establish every element of an offense charged and the
defendants commission thereof.... CPL 70.10(1). The proof must be
viewed in the light most favorable to the prosecution and the People are
entitled to all reasonable evidentiary inferences. People v. Delamota, 18
NY3d 107, 113 (2011). The trial court here referenced the proper legal
standard for considering a trial order of dismissal motion and then

20

proceeded to issue a decision which was completely at odds with this

standard.
Despite the unchallenged testimony that Jim Tan was shot three
times at close range while sitting in his home office by a shotgun
purchased in Cortland, New York, by the defendants fraternity brother and
long-time friend, that defendants mother called 911 and hysterically
recounted that her son shot her husband, that when deputies arrived the
only people at 37 Coach Side Lane were defendant, his mother, and his
deceased father, that defendant told Deputy that his father was dead and
that he had to do it, that defendant told police where to find the murder
weapon, that defendants fingerprints were found on one of the spent shell
casings and the box of ammunition, the Court stated The interesting thing
about a Trial Order of Dismissal, which requires the Court to view the
evidence in the light most favorable to the People, is that there has to be
evidence to view. (TOD 4).
The trial court simply failed to consider the evidence presented by the
People at all with respect to some evidence, and clearly did not consider
the evidence it did mention in a light most favorable to the People.
Possibly the most blatant example of the Courts failure to follow the law

21

with respect to evaluating the evidence in a light most favorable to the

People was the Courts statement: Also viewing the evidence in the light
most favorable to the People that the defendant states in his driveway, I
had to do it is equivocal at best and unsupported by any evidence in the
case at worst. (TOD 7). Initially, if the statement was equivocal as the
Court stated, then the Court was required to consider it the Peoples favor.
Furthermore, the Court should not have ignored the entire context in which
defendant made this statement in evaluating what the words I had to do it
meant. When considered appropriately, the statement the lower court
called equivocal at best is an admission by defendant to killing his father.
Monroe County Sheriffs Deputy Cooper testified that he was
dispatched to 37 Coach Side Lane in the Town of Pittsford for a domestic
dispute. En route he learned that the dispute was between a father and
son, that a weapon was involved, and that the son had possibly shot his
father. (TMII 81-82). It took Deputy Cooper approximately 10 minutes to
arrive at 37 Coach Side Lane. Two other members of the Sheriffs Office
also responded to the location. The deputies made a tactical approach to
the house, as they approached the house they encountered a male in the
driveway and a female at the top of the driveway. The male, identified in
22

court as the defendant, was ordered to the ground at gun point,

handcuffed, and patted down. Defendant was asked where the gun was
and he stated in the garage. Defendant was then asked if anyone else
was in the house. Defendant stated a number of times that there was no
one else in the house. Deputy 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 that he was dead. Defendant then
told the deputy that 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 the deputy. (TMII 89, 9799).
The statements of defendant to Deputy Cooper within 10 minutes of
the 911 call are far from equivocal in nature. In fact, viewing the evidence
in a light most favorable to the People and drawing all reasonable
inferences from the proof, the defendant actually admitted killing his father
and told deputies exactly where he put the murder weapon. The Courts
decision that the defendants statement I had to do it was equivocal at

23

best and unsupported by any evidence simply cannot be reconciled with

unchallenged proof presented during the trial.
The Court also stated:
The interesting thing about a Trial Order of
Dismissal, which requires the Court to view the
evidence in a light most favorable to the People is
that there has to be evidence to view. In this case
there was no evidence presented that the defendant
was ever in possession of the alleged murder
weapon or had anything to do with procuring it.
There was no evidence presented that the
defendant ever fired it. There was no evidence
presented that the defendant ever touched it. In
fact, DNA analysis suggested multiple contributors
to the trigger and barrel of the gun unexplained by
the prosecution at the time of trial. There was no
evidence the defendant had anything to do with the
weapon being located in his mothers garage at the
time it was found or otherwise. There was no
evidence, circumstantial or otherwise, placing the
defendant at the murder scene at the time of the
murder... (TOD 4-5).
The Courts list of failing of proof are in stark contrast to the evidence
presented during defendants trial. As set forth in the statement of facts
above, there was substantial direct and circumstantial evidence
establishing that defendant killed his father. Jim Tan was alive when his
son told his football coach he was not going to be a practice on February 6
because he had family problems and needed to get home. (TMII 426-431).
24

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

25

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
26

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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The legislature chose to address the situation of when a trial jury is

unable to reach a verdict under Subdivision 1(b) of CPL 290.10.
Subdivision 1(b) instructs the trial court [i]f the jury is discharged before
rendition of a verdict the court shall proceed to determine the motion as set
forth in this paragraph. Here, although the jury never indicated they were
deadlocked, they were discharged under CPL 310.60(1)(a) upon consent
of the parties.
In the instant case the trial jury deliberated for eight days before the
trial court sua sponte raised the possibility of the parties agreeing to the
discharge of the jury even though the jury had not indicated it was
deadlocked on the single count it was considering. (TMII 1133-1136). The
jury had only been deliberating one hour that day and had not made any
request of the Court when the possibility of a mistrial by consent was raised
by the Court. Of particular importance was the manner in which the Court
raised the issue to both the People and the defendant. The Court
specifically ensured that the People and defendant understood that
discharge of the jury under CPL 310.60(1) would not prohibit the People
from retrying the defendant. The following colloquy between Court and
counsel took place:

29

The Court: Before I address Mr. Tan directly,

gentlemen, I would note that the statues does
expressly provide under 310.60 subdivision 2, that
when the jury is so discharged, the defendant or
defendants may be retried upon indictment. Mr.
Gargan, youre aware of that?
Mr. Gargan: Thats our intention. Thank you.
The Court: Well talk more about that in a moment.
You are aware of that, Mr. Nobles?
Mr. Nobles: Absolutely, you Honor. We already
discussed that with our client. We are prepared for
that. [Emphasis added].
The Court: Mr. Tan, have you been listening to what
we said here this morning?
The Defendant: I have, sir.
The Court: Has anything about what we discussed
this morning confused you in any way?
The Defendant: No, sir.

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The Court: Your lawyer, Mr. Nobles, on your behalf

as indicated that the defense consents to a mistrial
at this point. Are you in full agreement with that?
The Defendant: Yes, sir.
The Court: Have you had a full and fair opportunity
to discuss that with your legal counsel?
The Defendant: Yes, sir.
The Court: Sufficient time to do so?
The Defendant: Yes, sir.
The Court: Are you clear in your mind that pursuant
to law that the prosecution could in its discretion
choose to retry you on this matter?
The Defendant: Yes, sir.
The Court: Finally, are you also clear that double
jeopardy does not attach and what that simply
means is that the matter could be retried again. Do
you understand that?
The Defendant: Yes, sir. (TMII 1136-1137).
Following that colloquy, the Court then stated:

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All right. All right, gentlemen, it would be my

intention to continue Mr. Tans release pending a
determination by the People, more formally on the
record, about their position, and what I will intend to
do is declare a mistrial and reschedule this matter
for the People to declare their intention should their
intention be to go forward, schedule a date and time
to do that. We wont do that today. We would do
that in a couple weeks. We can talk more about
that, but also I have reserved on the trial order of
dismissal. That reservation continues at this point.
With that said the, the Court does declare a mistrial
and I am going to discharge the jury before the
rendition of a verdict and thank them for their
service.... (TMII 1137-1138).
The first time the Court mentioned the undecided motion for a trial
order of dismissal after the jury began deliberations was after it had
secured the consent of the People and the defendant to discharge of the
jury without a verdict. (TM 1134-1138). At that time both the People and
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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

33

being urged. As the Court explained in Hawkins, referring to People v.

Gray, 86 NY2d 10, 19 (1995), a specific motion brings the claim to the trial
courts attention, alerting all the parties in a timely fashion to any alleged
deficiency in the evidence.... Defendants pro forma motion in this case,
even in the face of the trial courts request for a more specific argument
reveals that even the defense could not articulate a reasonable ground to
dismiss the case.
The language of CPL 450.20(2) was designed to allow the People
to appeal an adverse ruling on a motion for a trial order of dismissal in
those situations where such an appeal would not run afoul of the principles
of double jeopardy. See generally People v. Brown, 40 NY2d 381 (1976).
This is why CPL 290.10(1) is separated into two parts (a) where
decisions are not appealable and (b) where decisions are appealable. See
CPL 450.20(2). The Peoples appeal in this case is in keeping with the
spirit of the law.
In this case, a successful appeal by the People of the trial courts
decision granting defendants motion for a trial order of dismissal would not
violate the principles of double jeopardy. See United States v. Scott, 437
US 82, 93 (1978). Where ... a defendant successfully seeks to avoid his
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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

35

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.

36

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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