By Joseph Ax

NEW YORK, Jan 18 (Reuters) - The state prosecution of former Goldman Sachs computer programmer Sergey Aleynikov is an inhuman attempt to circumvent double jeopardy prohibitions after his federal conviction was overturned, his lawyer told a Manhattan state judge on Friday.

Attorney Kevin Marino urged Manhattan Supreme Court Justice Ronald Zweibel to dismiss the charges, saying Aleynikov should not have to defend himself again for the same conduct that led to the federal case.

Manhattan Assistant District Attorney Joanne Li said that Aleynikov had clearly violated state laws prohibiting the improper taking of computer material.

The federal prosecution, based on accusations that the New Jersey programmer copied proprietary Goldman code in 2009 and took it with him to a high-frequency trading start-up, was among the most high-profile cases that U.S. authorities have brought in recent years as they have sharpened their focus on computer crime and corporate espionage.

Aleynikov spent a year in prison after a guilty verdict in December 2010, before the 2nd U.S. Circuit Court of Appeals tossed his conviction last year and ordered him released.

"There is a word for this prosecution, and it is inhuman," Marino told the court on Friday.

He said that even if Aleynikov was convicted in state court, he was unlikely to serve additional jail time. Prosecuting Aleynikov further would not serve the interest of justice, he said.

"He's lost his home," Marino said. "He's lost his family. He's lost every penny he's ever saved ... the reality is, Sergey Aleynikov has suffered enough."

Li said that the 2nd Circuit's ruling was based on elements in the federal statutes that are not part of the state laws, which means the case falls under an exception to the double jeopardy rule.

"For many reasons, this is a legal and a valid prosecution," Li said.

Zweibel said he would issue a ruling in court on Feb. 15.

'BOMBAST' VS 'EVIDENCE'

In addition to his arguments based on double jeopardy and the interest of justice, Marino also said that the state statutes don't apply because Aleynikov had the right to access and copy the code.

Li, however, said the statutes were intended to prevent individuals from copying material for their own personal gain, an argument that Zweibel appeared to find more convincing.

"It's misappropriation," the judge said in challenging Marino's interpretation of the statutes.

In a statement following the hearing, Chief Assistant District Attorney Daniel Alonso said prosecutors had simply followed Marino's own suggestion during the federal case that Aleynikov's alleged actions would more properly be prosecuted in state court.

"In every case, the prosecutors in this office rely not on bombast but on evidence," he said. "The Second Circuit reversed the defendant's conviction on federal jurisdictional grounds in the face of insistent arguments by this same lawyer that the case was a quintessential state crime."

Efforts by federal authorities to crack down on computer crimes have increasingly come under fire from civil liberties advocates who worry that prosecutors are interpreting anti-hacking statutes too broadly.

Last week, Internet activist Aaron Swartz, 26, who was facing prison time in a controversial computer fraud case, committed suicide, adding fuel to the debate.

Swartz, an advocate for the free sharing of electronic data, was indicted by a federal grand jury in 2011 after his alleged illegal download of millions of academic articles and journals from a digital archive at the Massachusetts Institute of Technology. His family has accused the Justice Department of overreach, a charge prosecutors have refuted.

The case is People v. Aleynikov, New York State Supreme Court, New York County, No. 60353/2012.

For the prosecution: Assistant District Attorney Joanne Li.

For Aleynikov: Kevin Marino and John Tortorella of Marino, Tortorella & Boyle.

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