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Death of man shot by Buffalo police ruled a homicide, family attorney says

The Erie County Medical Examiner's Office has ruled the death of Jose Hernandez-Rossy, a man shot by Buffalo police, is a homicide, according to a lawyer representing Hernandez-Rossy's family.

"The medical examiner's office has ruled the death a homicide by gunshot wound, and that is consistent with the independent investigation conducted by my office," Nelson Torre told The Buffalo News Monday. Torre said that Hernandez-Rossy's certificate of death was issued May 18.

Hernandez-Rossy, 26, was fatally shot by Officer Justin Tedesco on May 7 during a confrontation with Buffalo police at Garfield Street and Hartman Place in the Black Rock neighborhood.

The finding by the medical examiner is a medical classification. It is not a legal or criminal determination. It refers to a death resulting from "a volitional act committed by another person, usually to cause, fear, harm or death," as specified in the Erie County Medical Examiner's 2013 Annual Report, based on guidelines set by the National Association of Medical Examiners. The shooting is under investigation by the state Attorney General's Office, which took over the case from the Erie County District Attorney's Office. No charges have been filed in the case.

Jose Hernandez-Rossy, left, and Buffalo Police Officer Joseph Acquino. (Provided photos)

"A medical examiner's determination of 'homicide' does not equal murder or any of the species of murder under the penal law," said Thomas H. Burton, the attorney representing Tedesco. "The same is true with a citizen defending themselves against a rape or a burglary or an arson. The medical terms do not supersede the legal definition. The two are like night and day."

Buffalo Police Officers Joseph Acquino and Tedesco stopped Hernandez-Rossy's vehicle after spotting him smoking a marijuana blunt while driving, according to police sources. During a struggle with Hernandez-Rossy, Acquino felt what he suspected was a handgun when he placed his hand on Hernandez-Rossy’s front pocket, the officer told investigators.

According to law enforcement sources, as Acquino and Hernandez-Rossy struggled inside the vehicle, Hernandez-Rossy stepped on the gas and the SUV hit the side of the officers' marked patrol car, narrowly missing a child on a minibike and crashed into the foundation of a house at Garfield Street and Hartman Place, causing the car's airbag to deploy.

Acquino's ear was nearly severed from his head and he shouted that he had been shot, according to police sources and witnesses. Hernandez-Rossy reportedly got free from Tedesco and fled on foot. Tedesco then fired three shots, fatally wounding him, according to witnesses and law enforcement sources. Hernandez-Rossy ran several blocks through backyards before collapsing.

In his statement to investigators, Acquino said he was shot, but no gun connected to Hernandez-Rossy has been found. Law enforcement sources have raised the possibility that Acquino's injury was caused by the airbag deploying.

[Photo gallery: Officer injured, suspect slain]

Hernandez-Rossy's death marked the first fatal shooting by a Buffalo police officer in 4 1/2 years.

Funeral services for Hernandez-Rossy were held over the weekend and his burial took place Monday, Torre said.

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