Oh shocker alert - the NY judge through out the case against fellow judicial system DA Abelove. Nothing to see here--- sure.
NY Judge dismisses case against Rensselaer County DA Joel Abelove
Rensselaer County District Attorney Joel E. Abelove speaks at a press conference Monday at the Rensselaer County Court House about the dismissal of a criminal indictment against him. (June 11, 2018, Troy, N.Y.)
TROY — A judge has thrown out a criminal indictment against Rensselaer County District Attorney Joel E. Abelove, who was accused of lying to a grand jury and mishandling the investigation of a fatal police shooting.
The decision, handed down Monday by acting state Supreme Court Justice Jonathan D. Nichols of Columbia County, concluded the state attorney general's office had exceeded its investigatory authority under state Executive Law and did not have the statutory jurisdiction to prosecute Abelove on charges of felony perjury.
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The attorney general's investigation led to the indictment of Abelove following his controversial decision to rush the shooting case before the grand jury that cleared a police officer who fatally shot an unarmed DWI suspect, Edson Thevenin, in April 2016.
The indictment, unsealed last December, had charged Abelove with holding back evidence from the grand jury that investigated the fatal shooting. The Times Union reported last year that Abelove did not subpoena two civilian witnesses who were at the scene of the shooting and told investigators they did not believe the officer was in imminent danger when he opened fire on the motorist. Police officials said the officer's legs were pinned between his police cruiser and Thevenin's moving sedan at the time he fired.
The second misconduct count accused Abelove of unlawfully allowing the officer who fired the fatal shots to testify with immunity from prosecution when he appeared before the grand jury that cleared him. The perjury charge alleged that Abelove lied last fall when he appeared in front a special grand jury investigating his conduct and testified that another Troy police officer was given immunity when he testified before a grand jury in an unrelated fatal shooting.
The decision dismissing the case against Abelove focused on the issue of jurisdiction and did not delve into the strength of the evidence supporting the charges against him.
The judge wrote that “it is apparent that the defendant’s motion seeking the dismissal of the charge of perjury in the first degree is properly granted inasmuch as the attorney general did not have jurisdiction to prosecute that charge in the first instance and, hence, acted without jurisdiction (in) presenting that charge to the Rensselaer County grand jury.”
In his 10-page decision, Nichols did not dispute that the attorney general's office had authority under an executive order issued by Gov. Andrew Cuomo to investigate the circumstances of the fatal shooting, including whether Abelove had committed official misconduct in its aftermath. But the judge said the attorney general improperly pursued a perjury charge that was beyond its authority.
Nichols wrote that since the felony perjury charge was "so inextricably intertwined" with the misdemeanor counts of official misconduct — and may have damaged Abelove's credibility with the grand jury he was accused of lying to — that he dismissed those charges as well.
In an interview with the Times Union, Abelove said he was relieved by the decision and said the judge did not give the attorney general's office permission to present the case again to a grand jury.
"My family and I are very happy with the judge's decision," Abelove said. "I was confident all along I had done nothing wrong … and this decision from the judge is welcome news."
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Rensselaer County District Attorney Joel E. Abelove reacts to judge dismissing state Attorney General’s criminal case against him. (June 11, 2018, Rensselaer County Court House Troy NY Kenneth C. Crowe II/Times Union)
Media: Times Union
Abelove, a Republican, said he believes the criminal charges were pursued as part of a political agenda by former Attorney General Eric Schneiderman, a Democrat, who abruptly resigned last month in the wake of allegations he had physically abused women.
Abelove has weathered the extraordinary criminal charges against him while continuing to campaign for a second term as district attorney.
"This was a political hit right from the get-go from a now-disgraced attorney general," Abelove said. "I think the people certainly saw it for what it was. I'm looking forward to getting back to doing what I’ve been doing all along. Our campaign is going to be stronger than ever."
The attorney general's office, now led by former state solicitor general Barbara Underwood, said it is reviewing the decision.
"Our indictment detailed a disturbing pattern of misconduct that violated the law and undermined a criminal investigation," said Amy Spitalnick, a spokeswoman for the attorney general's office. "We respectfully disagree with the court’s decision and are determining how best to move this critical case forward."
Laurie Shanks, a criminal defense attorney and Albany Law School professor emerita, studied the decision and said it focused on the issue of jurisdiction and not whether there was evidence to support the criminal charges.
"This was in no way an exoneration or a finding that District Attorney Abelove did not commit these crimes, but rather a limited decision based on a question of jurisdiction," Shanks said.
The criminal case marked the first time a district attorney faced criminal charges as a result of Cuomo’s 2015 executive order empowering the state attorney general’s office to intervene in cases where unarmed civilians are killed by police.
Thevenin's widow, Cinthia, filed a federal lawsuit against the city of Troy and Sgt. Randall French, who fatally shot her husband. The attorney general's office hired Precision Simulations, a forensic investigation firm from California, to reconstruct the shooting scene. A report from the company will be turned over to the city of Troy as well as to attorneys for Thevenin and Abelove, next month.
The criminal charges against Abelove did not undo the grand jury investigation that cleared French of wrongdoing, and there is no indication that the attorney general's office will seek to unravel that proceeding.
French, who has returned to active duty, was allowed by Abelove to testify without an immunity waiver, which means he could not have faced criminal consequences no matter what the panel decided.
The dismissal of the indictment comes as Abelove has launched his campaign for a second four-year term as district attorney. Abelove said at a late afternoon press conference in the Rensselaer County Court House that he would run on his record for re-election and not against the Democrats in Albany and the ill-fated indictment.
Democratic candidate Mary Pat Donnelly agreed with Abelove that the campaign is about his record as district attorney.
"My campaign is about that I can do a better job. It's about the mismanagement of his office," said Donnelly, who added she saw the problems when she was an East Greenbush town justice.
Rensselaer County Republican Chairman John Rustin said, "The case against District Attorney Joel Abelove was politically motivated and based on false premises and incorrect information."
Abelove has submitted his papers to retire as a lieutenant colonel from the New York Army National Guard after 23 years of service. Abelove said through a spokesman he does not yet have a retirement date. He currently is assigned to the Joint Forces Headquarters – the National Guard's state command headquarters – in Latham.
Source: Times Union