ALBANY — The state attorney general's office on Tuesday filed a notice that it will appeal a judge's dismissal of a criminal indictment against Rensselaer County District Attorney Joel E. Abelove.

The notice filed in Rensselaer County follows the June 11 dismissal of criminal charges accusing Abelove of lying to a grand jury and manipulating an investigation in which a Troy police sergeant was cleared of wrongdoing in the fatal 2016 shooting of an unarmed DWI suspect.

“Our indictment detailed a disturbing pattern of misconduct that violated the law and undermined a criminal investigation," said Amy Spitalnick, a spokeswoman for Attorney General Barbara D. Underwood. "We respectfully disagree with the court’s decision and have filed a notice of appeal.”

State Supreme Court Justice Jonathan D. Nichols of Columbia County, in dismissing the indictment, had concluded the state attorney general's office exceeded its investigatory authority under state executive law and did not have the statutory jurisdiction to prosecute Abelove on charges of felony perjury.

The attorney general's investigation led to the indictment of Abelove last December. Abelove was widely criticized for his controversial decision to rush the shooting case before a grand jury less than a week after Edson Thevenin was fatally shot in April 2016.

The indictment had charged Abelove with holding back evidence from the grand jury that investigated the fatal shooting. Abelove also 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.

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 of 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.



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 ruled the attorney general improperly pursued a perjury charge that was beyond its authority.

Nichols wrote that 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.

Abelove declined comment on Tuesday evening.

Thevenin's widow, Cinthia, filed a federal lawsuit against the city of Troy and Sgt. Randall French, who fatally shot her husband. 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 notice of appeal was filed as Abelove is campaigning for a second four-year term as district attorney.