SCHENECTADY – A Schenectady County grand jury on Friday cleared city police Patrolman Mark Weekes of any criminal wrongdoing in the cardiac-related death of a 36-year-old man who died in police custody last year after making dozens of cries for help that went unanswered.

"I can't breathe! Please!" Andrew Kearse told the officer to no avail on May 11, 2017, according to a video released by Attorney General Barbara Underwood, whose office announced the findings of the grand jury in a 185-page report. Gov. Andrew Cuomo appointed Underwood as a special prosecutor to examine the encounter between Kearse and Schenectady police.

Video footage taken from Weekes' patrol car cameras showed Kearse in the backseat breathing heavily and begging Weekes to roll down the window. At various times Kearse said he was dizzy, close to vomiting, numb and about to pass out.

Weekes was unmoved.

"Don't throw up in my car," the officer told him at one point.

Weekes, 33, an Air Force veteran who served in Afghanistan and flew more than 300 combat missions, explained that he learned in the military, police academy and throughout his professional experience that "if someone can speak, they can breathe," according to his sworn statement included in Underwood's report.

Weekes, who has been a city police officer for 10 years, said he suspected Kearse had asked him to lower the window in a ruse to escape. Earlier in the day, Kearse, who was on parole, had lied to a police sergeant only to flee and begin a chase that led to his arrest.

The grand jury determined Weekes' actions did not violate the law. The officer, on unpaid leave since July, testified voluntarily before the grand jury. State Police had previously exonerated him.

In 2015, Weekes survived a vicious on-duty attack by an ex-MMA fighter in which his skull was fractured. At the sentencing of his attacker, James Hilton, who received 13 years in prison, Weekes said the attack left him more guarded than ever in dealing with the public.

"Police officers are supposed to be and need to be approachable," Weekes said at the time. "It is difficult for me to trust anyone approaching me for assistance. I believe that what happened to me has affected my fellow officers, increasing their awareness to the potential detriment of police-community relations."

Andrew Safranko, the attorney for Weekes, said the police car's air conditioning was on the day Kearse died. He said Weekes may not have heard Kearse through the thick glass separating them in the car. The lawyer said Weekes "simply drove Mr. Kearse from the scene to the station" and did not deserve to face the same scrutiny as officers who have used deadly force.

"There is no question that the video of Mr. Kearse's death is troubling and difficult to watch," Safranko said. "However, watching the video cannot be done in a vacuum. Anyone who has heard Officer Weekes' account has agreed that his actions were proper. The whole event involving Mr. Kearse is a tragedy."

Angelique Negroni-Kearse, the widow of Kearse, clearly did not agree.

"I feel like the grand jury killed him again and his voice is being silenced," she told the Times Union Friday.

She said Kearse, a Bronx native, was a father of nine. The couple married 10 years ago and have four children. Represented by high-profile New York City civil rights lawyer Sanford Rubenstein, she is suing the city of Schenectady for alleged wrongful death for $25 million in U.S. District Court in Albany.

The attorney general stated: "After an exhaustive investigation, which we describe in detail in today's report, we concluded that there was sufficient evidence that a crime had been committed to warrant a presentation to a grand jury. The grand jury, however, declined charges; we are prohibited by law from discussing what occurred in the grand jury."

Kearse died of cardiac arrhythmia, a change from the normal sequence of electrical impulses that can lead the heart not to pump blood effectively.

Underwood's report said Stuart Zarich, a cardiologist from Connecticut, found it to be a "very unusual case of sudden cardiac death." The cardiologist said he believed Kearse would have survived had he received prompt medical treatment. Still, he acknowledged that without proper medical tools "even he would not have recognized from observation alone that Mr. Kearse required advanced cardiac life support measures."

The attorney general's report on Kearse death included recommendations, including that the Schenectady police department become a New York state-accredited law enforcement agency.

"This decision was made with full recognition that the probable cause determination would depend on the grand jury's assessment of several difficult factual questions, including PO Weekes' state of mind while Mr. Kearse was in his custody, and whether PO Weekes' failure to secure medical attention for Mr. Kearse prior to their arrival at the stationhouse was a cause (under the relevant legal standards) of Mr. Kearse's death," the report stated.

Underwood called on the state Legislature to act immediately and create a uniform statewide policy for every police department requiring officers treat breathing difficulties as medical emergencies.

"I want to be clear: a complaint about breathing difficulties should not be dismissed because the arrestee is able to talk," Underwood said.

Underwood recommended the Schenectady police department revise its policies so it is clear that

people under arrest receive emergency medical help whenever they are in need of it, even if the need does not arise from the use of force against the suspect.

"Regardless of the grand jury's decision, Mr. Kearse's death was a tragedy that never should have happened, and reforms must be made to prevent similar future tragedies," the attorney general stated.

Underwood's report and the video showed the sequence of events on May 11, 2017 as follows:

oagreport-andrewkearse by MikeGoodwinTU on Scribd

At about 4:30 p.m., Schenectady police Sgt. Dean DeMartino tried to pull over Kearse after Kearse allegedly sped in his white car and ran a red light at State Street and Fehr Avenue. Kearse led the sergeant on a more than half-mile car chase until Kearse stopped at the home of a friend on Ward Avenue. When the sergeant arrived and spotted Kearse at the scene, Kearse initially told the sergeant he was not the driver of the vehicle. The sergeant went to check dashboard camera footage to see if that was true and asked Kearse to stay put. Kearse took off into the friend's home and backyard and ran through several properties before police caught up with him.

Kearse resisted being handcuffed. As officers, including Weekes, tried to get Kearse to stand and walk to Weekes' car, Kearse told them he could not walk and needed to breathe. Officers, in turn, carried Kearse to Weekes' patrol car on Donald Avenue.

"You can't outrun the police, man. We're too fast for you," Weekes told Kearse, as he sat in the backseat of Weekes' car heading back to Kearse's friend's home.

At the home, Weekes spoke to officers for about seven minutes. Kearse called out to Weekes and other officers 17 times from inside the car.

"I can't breathe!" Kearse said. "Excuse me sir, excuse me sir. Please . . . Please roll down the

window. Please!"

Weekes did not respond for more than a minute. He opened the driver's door and asked, "What?"

Kearse again asked Weekes to open a window. Weekes did not respond. He shut the door.

"Please, please. Officer, officer, officer, officer!" Kearse asked.

Two minutes later, Weekes opened the door. He asked, "What's wrong?"

Kearse said he needed something. Weekes responded: "Is it hot? Probably shouldn't run next time."

Kearse called out twice again.

"Yeah what . . . what do you want?" Weekes asked Kearse.

"I really can't breathe, officer. Please!" Kearse responded.

"Slow down your breathing. Take deep breaths. You'll be fine," Weekes told Kearse.

Kearse called out "officer" five more times but received no response from Weekes, who closed the door and drove back to the police station two minutes later.

During the drive, Kearse rolled back and forth, leaned on his side and back. He begged Weekes to open the window. He said he was dizzy, would throw up, needed fresh air, was going numb and could not breathe.

"Goddamn ... I'm gonna...," Kearse told Weekes.

"You think this might have to do with you running from the police?" Weekes responded.

"Please open a window. Please!" Kearse asked,

"I'm not opening the window," Weekes said.

Kearse repeatedly called out to Weekes, said he could not breathe and, at some point, made a retching sound, crying out, "Ahhhh!"

Moments later, Kearse cried: "Officer, officer, officer ... I can't breathe officer!"

Kearse slumped into the corner of the seat. He did not speak again.

Several minutes later, Weekes made a right turn. Kearse's body fell back onto the seat.

After arriving at the back of the police station, Weekes asked for help with Kearse from Officer Ross Flood. They pulled Kearse from the car, held him on the side of the vehicle and placed him on the sidewalk.

"Get up man, come on, get up man, come on," one of the officers told Kearse.

A supervisor asked Weekes if Kearse was breathing and if anyone had checked for a pulse.

At one point, Weekes said, "The whole way down he was doing that 'I can't breathe, I can't breathe' thing . . . wanted me to open the window. I'm not gonna roll that down . . . now he's unresponsive."

Weekes began CPR on Kearse six minutes after arriving at the station. Officers used a defibrillator to try to resuscitate him.

A voice can be heard on a police radio saying, "Expedite the medics."

EMS workers arrived and worked on Kearse at the station. They took him to Ellis Hospital, where Kearse was pronounced dead at 7 :47 p.m.