Troy

Rensselaer County District Attorney Joel Abelove declined to obtain a waiver of immunity from a Troy police sergeant when the officer testified before a grand jury that cleared him of wrongdoing in the shooting death of a Watervliet man, according to two people briefed on the matter.

The district attorney's unusual decision not to require the officer, Sgt. Randall French, to waive his immunity from prosecution means he cannot face criminal consequences for his conduct during the April 17 shooting incident. French told investigators that he fired eight rounds from his service weapon, killing Edson Thevenin, a 37-year-old DWI suspect who was unarmed. French opened fire when Thevenin's car rolled into the officer's legs, pinning him against a police cruiser following a brief pursuit, according to Troy police officials.

Two people who told police they witnessed the shooting, Keith Millington, 26, of Cohoes, and Phillip E. Gross III, 35, of Troy, told investigators they did not believe the officer was in imminent danger when he fired the rounds through Thevenin's windshield. Millington told investigators he was very close to the incident and saw Thevenin's car roll forward after the shots were fired, according to a person briefed on his statements to investigators. Abelove did not subpoena Millington or Gross to testify in front of the grand jury that cleared French.

Millington, who declined requests to be interviewed, took a civil service test to apply to become a Troy police officer, according to a person who knows him. Gross, who owns an auto repair shop in Troy, is the brother of a former Troy police officer who was sentenced to probation and resigned from the force last year after admitting he tipped off a drug dealer about a raid.

The fatal shooting took place about 3:15 a.m. on Hoosick Street near the Collar City Bridge after Thevenin's vehicle was boxed in by two police cruisers following a chase that police said began when he fled a traffic stop.

Police said the stop was prompted by French's suspicion that Thevenin was driving while intoxicated. Thevenin was not armed with a gun.

Abelove and police Chief John Tedesco have said that French followed his training, and the law, when he opened fire.

Thevenin did not have a gun, but the police chief said Thevenin was considered armed and dangerous because he was using his vehicle as a weapon.

"As you may be aware, the law prohibits me from discussing grand jury matters," Abelove said recently when asked about his decision not to require French to sign an immunity waiver before testifying in front of the grand jury.

The revelation about French's immunity from prosecution comes as Attorney General Eric Schneiderman obtained a court order authorizing his office to take custody "of the notes, minutes, and exhibits of any grand jury investigation into the death of Edson Thevenin."

The order was signed by Rensselaer County Judge Debra J. Young on May 11, two days after Abelove agreed to turn over his files to Schneiderman's office. The agreement settled a lawsuit filed by the attorney general to take over jurisdiction from Abelove in the ongoing investigation.

Andrew Safranko, an attorney for French, declined to address Abelove's decision to give the officer immunity.

"While this attorney general matter is still pending, based upon the secrecy provisions of the grand jury, I can't really comment at this time regarding the decision-making process or whether there was or was not immunity granted," Safranko said. "I can say, from every account that I've seen, every view of the evidence, that this was a 100-percent justified shooting. It was a lawful original (traffic) stop by Sgt. French that unfortunately escalated into the chase where he was ultimately pinned between the cars and fired only on his belief that he was going to go under the car."

It's unclear whether the grand jury's decision that the shooting was justified can be undone even if the attorney general's investigation raises questions about the circumstances of the shooting. A spokesman for Schneiderman's office has said the grand jury proceeding lacked "legal significance" but the attorney general has not said whether he will seek a court order to annul the grand jury proceeding.

"Normally, under the state criminal procedure law, any witness who testifies responsibly to questions in the grand jury has transactional immunity; they cannot be prosecuted for anything they testify about, so long as it's responsive to the questions," said Donald T. Kinsella, a former federal prosecutor.

Kinsella, who is not familiar with the details of the Troy shooting case, said it would be highly unusual for a prosecutor to not require a witness to sign a waiver of immunity before testifying before a grand jury investigating an incident that involves the witness.

"I've never heard of a prosecutor intentionally putting someone who might be accused of a crime in front of a grand jury and giving them an immunity bath," Kinsella said. "By giving him immunity, it taints the case if somebody has access to that testimony who is investigating this. It's going to taint the investigation because you can't use immunized testimony against someone and you can't develop leads from that testimony to use against them."

Schneiderman, in the lawsuit he filed last month seeking control of the investigation, claimed that Abelove illegally took the case to a grand jury after Abelove's office was notified that the attorney general was launching an investigation. Abelove personally presented the case to the panel five days after the fatal shooting.

Last month, Gov. Andrew Cuomo issued an executive order giving Schneiderman specific authority to probe "all unlawful acts or omissions or alleged unlawful acts or omissions by any law enforcement officer" in the shooting death of Thevenin. Cuomo signed the order after Abelove challenged an executive order last July giving the attorney general jurisdiction to investigate incidents in which unarmed civilians are killed during encounters with police.

The District Attorneys Association for the State of New York, which opposed Cuomo's July 2015 order, has not publicly taken a position or issued any statements related to Abelove's battled with Schneiderman in the Troy shooting case.

The governor signed the executive order in the wake of a series of fatal encounters between police and unarmed civilians in New York and across the nation.

The governor's order said the attorney general may intervene in a fatal police encounter when, "in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his death."

blyons@timesunion.com • 518-454-5547 • @brendan_lyonstu