* Sergey Aleynikov charged by Manhattan DA
* Charges came after federal conviction was overturned
* Defendant remains free on bail
By Jonathan Stempel
NEW YORK, April 30 A former Goldman Sachs Group
Inc computer programmer failed to win the dismissal of
charges by Manhattan's district attorney of stealing secret
trading code, despite having earlier had his federal conviction
over the same activity thrown out.
In a decision made public on Tuesday, New York State Supreme
Court Justice Ronald Zweibel said the former programmer, Sergey
Aleynikov, did not show that the charges brought by Manhattan
District Attorney Cyrus Vance Jr amounted to double jeopardy, or
were part of a "vindictive prosecution" justifying dismissal.
Zweibel also rejected the argument that Aleynikov has been
"punished enough," having already spent 11 months in prison
during the federal proceedings and lost his home and savings,
and that ending the case served the interest of justice.
"We are in the process of reviewing the opinion, and are
confident that Mr. Aleynikov will again be vindicated,"
Aleynikov's lawyer Kevin Marino said in a phone interview about
the decision, which is dated April 5.
A spokeswoman for Vance had no immediate comment. Goldman
spokesman Michael DuVally declined to comment.
Vance and U.S. Attorney Preet Bharara in Manhattan, who had
earlier prosecuted Aleynikov, have made cracking down on
computer crime and corporate espionage a top priority.
Federal prosecutors had accused Aleynikov of stealing
trading code from Goldman in 2009 as he prepared to join a
high-frequency trading startup firm in Chicago.
A federal jury found Aleynikov guilty in December 2010, but
a federal appeals court in New York overturned that verdict in
February 2012, saying that federal corporate espionage laws did
not cover Aleynikov's alleged illegal activity.
But last August, Vance charged Aleynikov with two felonies
under New York state law, unlawful use of secret scientific
material and unlawful duplication of computer related material.
Aleynikov could face up to four years in prison if
convicted. He remains free on bail.
Zweibel said Aleynikov was not deprived of his right under
the 5th Amendment of the U.S. Constitution not to be tried twice
for the same offense.
He said this was because the federal and state charges were
different, and because the federal case was dismissed because
the indictment, rather than the evidence, was inadequate.
The judge also said there was no reason to presume that
Vance had an improper motive in bringing his case.
"Even assuming, as defendant does, that the timing of this
indictment, coupled with the defendant's successful appeal of
his federal court conviction, raises an inference that the
prosecution may have been motivated for vindictive reasons,
these factors along do not create a presumption of
vindictiveness," Zweibel wrote.
The case is People v. Aleynikov, New York State Supreme
Court, New York County, No. 04447/2012.