Troy

The attorney for a 22-year-old man who was shot and injured by Troy police during a traffic stop last week said his client was not armed at the time of the incident.

Mark S. Mishler, who is representing Dahmeek McDonald and his family, also sent a letter Monday to Rensselaer County District Attorney Joel E. Abelove demanding that Abelove recuse his office from overseeing the investigation into the shooting, including any review of the case by a grand jury.

Mishler said he made the request in part because Abelove is the target of an ongoing investigation by state Attorney General Eric Schneiderman. The attorney general since February has been probing Abelove's handling of an April 2016 shooting in which a Colonie man was killed by a Troy police sergeant after the man, Edson Thevenin, allegedly fled a DWI traffic stop.

Schneiderman's office has been examining whether the sergeant, Randall French, was pinned between his police cruiser and Thevenin's vehicle when he opened fire. Thevenin was not armed, but police officials and Abelove said they concluded the suspect was using his vehicle as a weapon.

Under an order from Gov. Andrew Cuomo, Schneiderman is also investigating whether Abelove, who rushed the case before the grand jury that cleared French, handled the investigation properly. The Times Union reported earlier that Abelove did not require French to sign an immunity waiver when he testified before the grand jury. Abelove also put the case in front of the grand jury after Schneiderman's office, under the authority of a 2015 executive order, notified the district attorney it wanted to intervene in the investigation.

Mishler said the cloud over Abelove's office requires that another agency oversee the investigation of McDonald's shooting.

"It is impossible for you or your office to conduct a fair and impartial investigation of this matter," Mishler wrote in the letter to Abelove. "In addition, it is inconceivable that the public could have any confidence in the integrity of any investigation into this incident in which you or your office are involved."

Mishler said that McDonald, who was shot twice by at least one officer, told him that he was not armed when police pulled him over. Troy police and Abelove's office have repeatedly declined to comment on their investigations or to say whether any weapon was recovered from McDonald, who was wanted for a parole violation, or from the vehicle he was driving.

"Your involvement in a new case involving the use of deadly force by a Troy police officer ... while you are under investigation for allegedly undermining a previous similar investigation, presents — at least — a gross appearance of impropriety," Mishler wrote.

Mishler also said that even without the attorney general's investigations of the Thevenin shooting, Abelove would still have a conflict because there "can be no dispute that your office and the Troy Police Department work together every day on a wide range of cases and investigation," he wrote. "You and the Troy PD are too inextricably and deeply intertwined with each other for you to conduct a proper investigation of the use of deadly force by a Troy police officer against a civilian."

Cuomo cited the same public concerns about district attorneys and local police when he signed the 2015 executive order that enabled Schneiderman's office to intervene in cases in which unarmed civilians are killed during confrontations with police.

Cuomo signed the executive order after a series of fatal encounters between police and unarmed civilians in New York and across the nation. The order gave Schneiderman the power to conduct independent investigations in fatal police encounters when, "in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his death."

The governor's order said a basis of the intervention would be to alleviate "public concerns ... that such incidents cannot be prosecuted at the local level without conflict or bias, or the public perception of conflict or bias."

The order did not give Schneiderman's office authority to intervene in cases where police use deadly force but no one is killed. However, Cuomo could issue an order in any specific case giving the attorney general jurisdiction. Last week, a spokesman for Cuomo said their office is monitoring Troy's investigation of McDonald's shooting "and we'll take action as appropriate."

Abelove's spokesman said Monday the office would not comment on Mishler's letter "as it relates directly to an ongoing case.''

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