TROY — A judge on Monday rejected a motion filed by the state attorney general's office that sought to reargue the dismissal of criminal charges against Rensselaer County District Attorney Joel E. Abelove over his handling of a fatal police shooting case.

State Supreme Court Justice Jonathan D. Nichols summarily rejected the motion, filed last July, without issuing a formal written order that explained his decision.

The ruling by Nichols may not signal the end of the criminal exposure for Abelove, who lost re-election to a second term last month, because the office of Attorney General Barbara D. Underwood has also filed a notice of their intent to appeal the judge's dismissal of the case.

The motion filed nearly six months ago had asked Nichols to vacate his June 11 dismissal and reinstate the indictment that charged Abelove with lying to a grand jury and manipulating the investigation that cleared a Troy police sergeant in the fatal 2016 shooting of an unarmed DWI suspect.

Nichols ruled 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, which allegedly took place when he testified before the panel that indicted him.

Abelove was indicted a year ago in a case that probed 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. Abelove was charged with felony perjury and two misdemeanor counts of official misconduct.

The attorney general's office had also examined the circumstances of the fatal shooting, but the office did not seek to overturn the grand jury's decision that cleared the officer of wrongdoing. The grand jury proceeding had been clouded, in part, because at least two civilian witnesses who had called into question the police account of the incident did not testify before the grand jury.

Still, it would have been difficult to unwind the grand jury's decision because Abelove had given immunity from prosecution to Sgt. Randy French, the officer who fired the fatal shots.

William J. Dreyer, Abelove's attorney, declined to comment on the decision issued Monday.

"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’re reviewing the decision in order to determine next steps. We remain steadfast in our determination to hold Mr. Abelove accountable for his actions."

Nichols did not dispute that the attorney general's office had authority under an executive order issued by Gov. Andrew M. 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. The attorney general's motion said it was wrong to dismiss any of the charges.



