Last updated: February 20. 2013 1:48AM - 677 Views

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WILKES-BARRE – A Luzerne County judge on Friday denied a motion that sought to have Cody Lee released based on allegations police had illegally rearrested him on a homicide charge that had been dismissed earlier in the day.

Attorney Peter Paul Olszewski Jr. argued police did not follow proper procedure in refiling a new homicide charge against Lee in connection with the Dec. 9, 2009 shooting death of his great-grandfather, Herbert Lee Sr.

District Judge James Tupper dismissed that charge Friday afternoon after determining police had not presented sufficient evidence to support their case. Lee was immediately rearrested on the same charge.

At a 4 p.m. hearing before Luzerne County Judge Joseph Sklarosky Jr., Olszewski argued that prosecutors violated a rule of criminal procedure requiring police to have a new criminal complaint approved in writing by the district attorney, and to file it with a district judge, before a defendant can be arrested on a new charge.

That did not occur in Lee's case, as he was taken into custody only seconds after Tupper dismissed the original homicide charge, Olszewski said.

Assistant District Attorney Alexis Falvello argued the rearrest was proper based on a second rule of criminal procedure that allows police to make an arrest without a warrant in certain types of cases, including homicide.

Even if Sklarosky found proper procedure was not followed, the District Attorney's Office was, at the time of the hearing before him, arranging to have Lee arraigned on the new homicide charge. That would satisfy the requirements under the rule Olszewski was citing.

Olszewski argued prosecutors should have done it right the first time.

This was total vindictiveness, said Olszewski. They were unhappy the charges were dismissed . . . They took him away and are now trying to figure out how to fix what they just did.

After about 20 minutes of argument, Sklarosky denied Olszewski's motions, saying the law requires a new complaint be filed without unnecessary delay. He was not aware of any rule regarding a grace period to file those charges.

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