HORSEHEADS, N.Y. (WENY) – A motion to dismiss the case against Tom Shen – the man accused of a fraud scheme surrounding the unfinished hotel on Corning Road in Horseheads – has been filed.

According to a document obtained by WENY News, prosecutors cite “limited resources” due to the new discovery laws, as well as the fact that all contractors involved in the project have “either been paid or have reached a settlement with the defendant in this case”.

Under the new discovery reform law, the prosecution is required to turn over all its evidence to the defense within 15 days of arraignment. Discovery is the process through which prosecutors turn over evidence so someone accused of a crime can mount a capable defense. Before the new law was passed, the defense had to request these documents in writing.

As WENY News reported, in July 2018, Shen was initially arrested for allegedly issuing a bad check to a contractor involved in the hotel project.

That contractor, John O'Connor, says he was written a check for $367,000 in 2017, but the check bounced when O'Connor took it to the bank. As a result, in December 2017, O'Connor put a lien on the hotel so it couldn't be sold without him getting paid. He then filed a lawsuit against Shen. O'Connor claims he was originally owed over $400,000. They settled out of court with the agreement that O'Connor could not press charges or put a lien on the building again.  

"We lost approximately $70,000," said O'Connor. "My thought is, again, he gets off. He gets away with one. I'm not the only person that took a loss in order to settle this thing and to keep it moving forward."

A sign outside the hotel construction site claims it'll be finished this year, but O'Connor has his doubts. He believes this won't be the last time people hear about Tom Shen. 

"He walks away scott free to hire another contractor who is going to go through the same thing I went through," said O'Connor. "Mark my words. This is not over. There's going to be somebody else that's going to be foolish enough to do that job and wind up losing money on it."

Additionally, Shen was facing the charge of scheme to defraud after being accused of accepting half a million dollars from a foreign investor in exchange for a visa by Qiang (John) Tu.

“The only victim in this case who is still out money, Qiang Tu, has pending civil litigation addressing his issues,” said Special Prosecutor Sandra Cardone in a letter to Chemung County Judge Richard Rich.

The trial was initially set to start the week of January 27.

In the letter to Rich, Cardone wrote, “While it is the People’s position that the case was properly charged and that there is sufficient evidence to return a conviction at trial, we are moving to dismiss only after a careful evaluation of the case with its surrounding facts and circumstances.”

She continues the letter, saying:

“Fundamentally, all of the contractors involved in this project have either been paid or have reached a settlement with the defendant. The only victim in this case who is still out money, Qiang Tu, has pending civil litigation addressing his issues. Accordingly, where there is a remedy at hand, and where the civil case preceded the criminal case, we feel that it would be an unwise use of our resources to continue to pursue this indictment. Moreover, where the prior indictment we filed against this defendant, Ind. 2019-7, ended favorably for both the victim, John O’Connor, and the defendant, who has no prior criminal history, this factor weighs heavily in our decision that further prosecution would be against the interests of justice.”

“Additionally, this Office has limited resources which are being severely taxed due to the difficulties, and risk of potential appellate issues, imposed by the new CPL §245 [discovery reform law].”

“While Horseheads will certainly benefit from the new hotel, we do take a dim view of the means that the defendant employed to make this happen. His tactics nearly destroyed several local businesses which engaged with him on this construction. We can only hope that he has learned from his experience in the criminal justice system and that he will conduct business in the future with greater regard for local businesses who serve him.”

WENY News reached out to Tom Shen's lawyer and the Tioga County DA's office, but our calls were not returned. 

Correction: The article has been updated to reflect a motion to dismiss the case has been filed; the case has not yet been dismissed by the judge.