By Jonathan Stempel
NEW YORK (Reuters) – A New York state appeals court on Tuesday refused to toss out a former Goldman Sachs Group Inc (N:) computer programmer’s theft conviction, rejecting his claim that he was wrongly prosecuted twice for the same conduct.
The decision by the Appellate Division in Manhattan may be the last in the decade-long legal odyssey of Sergey Aleynikov, 49, who was first arrested in July 2009 for copying Goldman’s high-frequency trading code as he prepared to join a Chicago startup.
In a 5-0 ruling, the court found “no inconsistency” between its 2017 finding that Aleynikov had made a “tangible” copy of the codes when he uploaded them to a German server, and an earlier conclusion by the 2nd U.S. Circuit Court of Appeals that the codes were “intangible” when Aleynikov transported them.
“Accordingly, there was no double jeopardy bar to the state prosecution,” the Appellate Division said.
Aleynikov’s lawyer Kevin Marino said his client intends to ask the state’s highest court, the Court of Appeals, to review the decision. That court is not required to hear an appeal.
“It’s not the end of line,” Marino said. “We believe the court misinterpreted New York’s double jeopardy statute. He was convicted of making a tangible copy after the 2nd Circuit acquitted him of making a tangible copy.”
Danny Frost, a spokesman for Manhattan District Attorney Cyrus Vance, declined to comment.
A New York state trial judge sentenced Aleynikov to time served last October, after the Appellate Division in 2017 reinstated the second of his two criminal convictions.
Aleynikov spent 11 months in prison before the 2nd Circuit overturned his federal conviction, the first of his convictions, in 2012.
The dual U.S.-Russian citizen has said he intended the code only for his own use. His tale helped inspire Michael Lewis’ 2014 bestseller “Flash Boys,” on the rise of high-frequency trading in U.S. equities.
Marino said Aleynikov, who has three daughters, works as a computer programming consultant.
The case is New York v Aleynikov, New York State Supreme Court, Appellate Division, First Department, No. 4447/12.
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