Albany

Rensselaer County District Attorney Joel E. Abelove may have expressed doubts that a DWI suspect was "armed and dangerous" as he was fatally shot by a Troy police officer last year, according to an investigation by the state attorney general's office.

The cryptic inference about the state's ongoing investigation was revealed by the attorney general's office in a court filing in which the agency indicated it's using a grand jury to examine potential criminal charges in the case, and that Abelove should not be entitled to review any evidence related to the grand jury's review.

The attorney general's office is probing the circumstances of the shooting, Abelove's alleged interference with a state investigation of it and his "treatment of witnesses and evidence," according to court records.

The court filings by the attorney general are in response to a petition that Abelove filed two months ago challenging the constitutionality of Gov. Andrew Cuomo's order in July 2015 that gave Attorney General Eric Schneiderman the authority to intervene in cases when unarmed civilians are killed during confrontations with police. The attorney general is seeking dismissal of the petition and has offered — in sealed filings — to show the details of its criminal investigation of Abelove to the judge reviewing the petition.

The civil case between Abelove and Schneiderman marks the first legal challenge of the governor's 2015 order involving unarmed civilians killed by police.

Abelove became embroiled in a confrontation with Schneiderman's office last year when he rushed the police-shooting case before a grand jury that cleared the Troy police sergeant who shot Edson Thevenin.

Thevenin, 37, was shot as he fled a DWI arrest in April 2016. Troy police officials said he drove forward and pinned Sgt. Randall French's legs against his police cruiser before the officer opened fire. Two civilian witnesses, who did not testify before the grand jury, told investigators they did not believe French was in imminent danger when he shot Thevenin. The investigation is examining whether the car rolled forward after Thevenin was shot.

John W. Bailey, Abelove's attorney, said his client has requested to testify before any grand jury that may review evidence in the investigation of his handling of the case.

"Joel Abelove is emphatic at no time has he ever expressed any doubt that Mr. Thevenin was using his car as a weapon and it threatened the safety and-or life of a police officer," Bailey said. "From the moment he became involved in this, it was clear to him that Mr. Thevenin was using his car as a weapon and was threatening the safety and life of a police officer. If anyone is saying otherwise, they either don't know what they're saying, or they're lying."

Schneiderman's office had notified Abelove of its decision to review the case and accused Abelove of doing an "end run" around Cuomo's order. Months later, the investigation broadened from a review of the shooting case to a separate criminal investigation into Abelove's handling of the case.

Abelove has asked a court to strike down the attorney general's investigation on the grounds that Cuomo's order was unconstitutional and that the county district attorney had full authority to investigate the shooting, in part, because the Thevenin was allegedly using his vehicle as a weapon when he was shot.

"Abelove's attempt to halt the OAG's investigation of his conduct is premature and any arguments about the OAG's authority to conduct its investigation should be directed to a criminal court, should charges be filed against DA Abelove," the office of the attorney general wrote in a recent memorandum filed in state Supreme Court in Albany County. "DA Abelove should not be allowed to use these proceedings as early discovery of a potential criminal case. Should (Abelove) be charged with any crimes, he will have an opportunity to challenge the constitutionality of those crimes and the OAG's jurisdiction to prosecute DA Abelove."

The probe of Abelove's handling of the case intensified when state investigators used search warrants to seize his county-issued cellphone on March 16. Less than a month later, the investigators obtained another search warrant that was used to obtain copies of Abelove's emails through his county government account.

The search warrants are being overseen by Columbia County Court Judge Jonathan D. Nichols, who has declined to release copies of the records filed with his office in the case.

Abelove did not require French to waive his immunity from prosecution when he testified before the grand jury that cleared him five days after the shooting, the Times Union first reported last year. The grand jury could not have indicted the officer without that waiver.

In February, Cuomo issued an executive order giving Schneiderman's office authority to investigate Abelove for his handling of the case along with other law enforcement officials involved in the shooting investigation.

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