Court weighs Abelove case
Attorney general appeals dismissal of indictment
Nearly a year a f ter Rensselaer County District Attorney Joel Abelove was swept f rom of f ice in a fa i led reelection bid, his attorney arg ued before an appellate cour t on Monday t hat t he former prosecutor should not face crimina l charges related to his handling of a 2016 fata l police shooting in Troy.
The case stems f rom an appea l by t he state attorney genera l’s of f ice of state Supreme Cour t Justice Jonathan D. Nichols’ June 2018 dismissa l of an indictment charging Abelove with of f icia l misconduct and perjur y over his handling of t he investigation.
Nichols r uled t he perjur y charge — a result of a l leged fa lse statements t hat Abelove made when he testif ied before t he g ra nd jur y investigating him — had prejudiced t he panel in its decision to a lso indict Abelove on t wo counts of of f icia l misconduct, so he t hrew t he entire case out.
Nichols a lso r uled t he state attorney genera l’s of f ice exceeded its investigator y authorit y under state executive law and did not have t he statutor y
jurisdiction to prosecute Abelove on the felony perjur y charges.
Judith N. Vale, an assistant attorney general, told the four- judge panel Monday that an executive order sig ned by Gov. Andrew M. Cuomo gave their office the authority to investigate and prosecute Abelove for his false statements and for his mishandling of the grand jur y case.
She noted that Abelove had lied to the grand jur y when he claimed his office had discretion to grant immunity to the officer who f ired the fatal shots, Sg t. Randall French, before he testified in front of the panel that cleared him of wrongdoing. Abelove claimed his office had done the same thing in a prior police shooting case, which was false.
“Getting an immunity waiver from the only officer accused of shooting a civilian is not discretionar y,” Vale said. “It also does go to credibility. … He chose to testif y and opened the door by testif ying falsely about important material issues.”
The case has dogged Abelove, who lost re- election to a second term last year during a campaign he waged under the shadow of his handling of the fatal police shooting.
His decision to grant French immunity — which meant the grand jur y that cleared the officer would not have been able to indict him — stoked community tensions and has also divided the police force.
Joshua R. Friedman, an attorney for Abelove, told the appellate panel on Monday that Nichols made the right decision when he dismissed the criminal charges last year.
“The attorney general is now asking this court to reverse a thoughtful and well- reasoned decision by the Supreme Court, which found that the attorney general had overstepped the bounds of his prosecutorial authority,” Friedman said.
Abelove, through his attorneys, has arg ued that the attorney general exceeded its authority under the executive order sig ned by Gov. Andrew M. Cuomo that empowered the state office to inter vene and independently investigate the circumstances of the fatal shooting of Edson Thevenin.
Friedman, who in his legal briefs noted that Abelove is a Republican and Cuomo is a Democrat, told the judges that the Legislature “did not want to give up power to allow a governor to dictate the scope of the investigation and essentially write a blank check to the attorney general to prosecute perjur y from virtually any kind of investigation that the governor could dream up, including possibly an investigation into those legislators themselves.”
The members of the appellate panel that heard the case on Monday were justices Eugene P. Devine, Michael C. Lynch and Robert C. Mulvey, and Presiding Justice Elizabeth A. Garry. Through their questioning, the justices pressed Friedman on his assertion the attorney general had no authority to pursue the perjur y charge against Abelove. Abelove had waived immunity and agreed to testif y before the grand jur y that indicted him.
“It ’s hard to imagine how there could be more prejudice than your legal adviser was the attorney general alleg ing to you as a grand juror that the respondent ( Abelove) had intentionally perjured himself while testif ying in the official misconduct case,” Friedman said.
Vale countered that Cuomo’s order gave the attorney general’s office wide latitude to probe both the shooting and Abelove’s alleged mishandling of the case. She said prior appellate decisions have made clear that grand juries can vote on the criminal counts they are presented with, and also indict someone for ly ing to them as part of the same case.
“Here the executive order, that lang uage is broad and for ward looking; it covers any act or omission arising out
of, related to or any way connected with Abelove’s misconduct in front of the Thevenin grand jur y,” Vale said, adding that would apply to any perjur y that may arise.
Abelove was criticized for rushing the shooting case before a grand jur y less than a week after Thevenin was fatally shot in April 2016.
The attorney general’s office did not seek to overturn the grand jur y ’s decision that cleared the officer of wrongdoing. That grand jur y proceeding had been controversial because at least two civilian witnesses who had called into question the police account of the incident did not testif y before the grand jur y.
The appellate court is expected to issue a decision on the attorney general’s appeal within a couple of months.
The arg uments took place after it was recently revealed the city of Troy had concealed an internal affairs report issued last year by Capt. Joseph Centanni, now the head of detectives, who found that French lied about the circumstances that led him to fatally shoot Thevenin after he f led a DWI traffic stop.
Centanni’s report said French gave “empirically untruthful statements” about what happened that night, including ly ing about his alleged decision to force Thevenin’s vehicle off the road.
Troy city police officials declined to take action against French based on Centanni’s report, which sustained four allegations against the sergeant, including engaging in “several reckless acts which dramatically increased the likelihood of a violent confrontation with Thevenin upon Sg t. French’s exit from his patrol vehicle.”
The report also cast doubt on French’s assertion — and public statements by city leaders — that he was pinned against his patrol car by Thevenin’s rev ving Honda sedan when he opened fire. ■ t ure and Markets a f ter t he Town Board approved, in a 3- 2 vote, an ex tension of t he line into t he ag ricu lt ure distr ict to accommodate developer Thomas Benusca k.
A f ter t he tow n initia l ly won t he suit in April 2018, a state Appellate Cour t over t urned t he decision, t hus stopping a 1,650- foot ex tension of t he water line to ser ve a dozen la rge homes in a new development. ■ ■ ■