April 22, 1999
Section: Regional
Edition: Fulton Montgomery Schoharie; First
Page: B-07

Shooting case remains open


Gazette Reporter

ALBANY - A Watervliet police officer who shot and killed a man who was aiming a pellet gun at him last summer appears to have acted justifiably, a prosecutor said Wednesday. "The case has been reviewed thoroughly by several prosecutors in this office and, from everything we have seen so far, this appears to have been a justifiable shooting, as tragic as it is," said Chief Assistant District Attorney Lawrence P. Wiest. But the investigation into the actions of Watervliet Police Officer Joseph N. Torre, who fatally shot 36-year-old Brian Myers in the chest last July 16, is still open and no official ruling has been made, prosecutors said. The case has not been presented to a grand jury and may not be, Wiest said. "We do not have a policy that every time there is a shooting when a police officer is required to shoot someone that it automatically goes before a grand jury," Wiest said. "If there is any concern, we might designate it as a case that should go before a grand jury." Since the district attorney's office works closely with police agencies, cases involving shootings by police officers can be presented to a grand jury, to allow an independent body to review the case. No decision has been made as to whether the case will go to a grand jury or if the shooting was so clearly justifiable that a grand jury presentation would not be warranted. Wiest said it is up to his boss, District Attorney Sol Greenberg, to decide whether to close the case without a grand jury probe. A decision is expected in the near future. A lawyer representing Myers' relatives said the family will be "incensed" if a grand jury investigation isn't conducted in the case. "If there's nothing to hide, let's show this to a grand jury. [Prosecutors] should be anxious to show this to a grand jury. A decision [not to present the case to a grand jury] would be suspicious," said Albany attorney Randall E. Kehoe. "I would rather hear the findings from a grand jury, not have this be a policy decision made by one politician. Investigation is the mission of a grand jury, why not let [the grand jurors] investigate?" Kehoe said Myers' mother, Rita, and the mother of Myers' two children have both sent letters asking the district attorney's office to submit the case to a grand jury. Watervliet police officials have said that Torre was justified in using deadly force because Myers was waving a BB gun at him and refused to put it down. Myers threatened to kill Torre, authorities have said. Myers was moving out of the half of the two-family home at 211 Seventh Ave. in Watervliet that he shared with his girlfriend, Cheryl Mosseau. An upstairs neighbor called 911 at about 11:45 p.m. July 17 and reported that an unwanted visitor was refusing to leave the porch and was causing a disturbance. The caller told police that the man was armed with a BB gun. When police responded, Myers emerged from a narrow alley between 211 and 213 Seventh Ave. and pointed what, in the dark, appeared to be a handgun at Torre. Torre repeatedly told Myers to drop the gun, but he refused. Witnesses who were listening to the police radio heard a police officer at the scene ask the dispatcher how she knew the gun was only a BB gun.

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