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DA: Officer Nikolas Budimlic won't face charges in fatal shooting of Hofstra student Andrea Rebello

Nassau County Police at the scene of the

Nassau County Police at the scene of the off-campus shooting May 17, 2013, in Uniondale in which Hofstra University student Andrea Rebello, right, was accidentally shot and killed by a Nassau police officer. Credit: Paul Mazza; Handout

A Nassau district attorney's review of the police shooting that killed Hofstra student Andrea Rebello and the armed robber who took her hostage has ruled out criminal charges against the officer who opened fire.

The report said Officer Nikolas Budimlic was justified in using deadly force during the home invasion last May.

"Though the results were unquestionably tragic, criminal charges under these circumstances would be inappropriate and legally unsustainable," the report concludes.

But Rebello's family said the review -- based on police and witness interviews, 911 calls, police radio communications and forensic evidence -- should have involved a grand jury.

The 11-month investigation determined that gunman Dalton Smith, 30, of Hempstead ignored commands to drop his 9-mm Luger and threatened to kill both the officer and Rebello while taking turns pointing his gun at each.

The 28-page report, released Wednesday by District Attorney Kathleen Rice, provides new accounts from witnesses who were inside the off-campus rental house in Uniondale during the incident, airing Budimlic's account for the first time.

The Rebello family has filed notice that they plan to sue the county and its police force for wrongfully causing the 21-year-old junior's death.

"It seems that when he fired, he took a gamble with Andrea's life and she lost," Manhattan attorney David Roth said of Budimlic.

"We are disappointed that they did not put all of the evidence in front of a grand jury and let the grand jury decide," the Tarrytown family said in a statement.

Police and county officials declined to comment on the report, citing pending litigation. Rice's report puts blame for the student's death squarely on Smith, who had prior robbery-related convictions and was wanted for a parole violation at the time of the incident.

After 2 a.m. on May 17, 2013, Smith barged into the home that Rebello, a public relations major, shared with her twin sister Jessica and others, taking four students hostage at gunpoint while demanding cash and valuables.

One of the students said Smith told them they owed $10,000 to a "Russian guy" and he was responsible for collecting half that amount.

Budimlic, an eight-year veteran of the Nassau County Police Department, was among the first officers to respond to a 911 call placed by a roommate of Rebello's, whom Smith allowed to drive to an ATM for more cash.

After entering the house, Budimlic soon encountered Smith holding Rebello hostage. Smith hollered expletives and threatened to shoot the student and police, according to the report.

Authorities said previously that Smith was holding Rebello in a headlock while putting a loaded gun to her head. The officer pulled the trigger after Smith pointed the gun at him, police had said.

But the report offers new details, including how Budimlic was unable to contact dispatchers with his police radio as he took cover in a hallway behind a staircase. Other officers were outside the front door.

Budimlic said he went inside the house after Jessica Rebello suddenly ran out, yelling "He's upstairs!"

An account from another officer at the scene recalled how Smith, clad in a ski mask, pointed a gun at officers at the front entrance after Budimlic had slipped inside.

Officer Marlon Sanders, who was standing by the door, said he saw Smith grab Rebello by the hair and point the gun alternately at the student and at police.

According to Budimlic's account, he heard a man upstairs telling the officers outside to put their guns down and back up. "I got a real gun, I got real bullets. I'm going to kill them!" Smith said, according to Budimlic.

He said he saw Smith holding Rebello in a headlock and pointing a gun at her sister's boyfriend, John Kourtessis, with his other hand, after the suspect brought them downstairs.

Budimlic said Smith realized he was inside the house after Kourtessis spotted him and called out that police were there.

Budimlic said Smith started using Rebello as a human shield and turned the gun on him, telling the officer, "You're going to die!"

"Put the gun down, let the girl go!" Budimlic shouted, pointing his gun at Smith.

"I'm going to kill her and you!" Smith threatened.

As the standoff continued, Smith tightened his grip on the crying, terrified student's neck and switched between pointing his gun at Budimlic and Rebello.

As Smith tried to back toward a rear exit, Rebello began to turn her body away and Smith looked off-balance, according to the officer's account.

Budimlic fired two shots at Smith, before Smith released Rebello. But the gunman held on to his weapon and tried to aim at Budimlic, the officer said.

Budimlic stepped toward Smith and fired four more bullets before Smith fell. Budimlic fired the final two bullets at Smith when he saw he was alive and still holding the gun.

Police broke down the front door after hearing gunshots, the report said.

The Rebello family first raised questions about the shooting shortly after it happened.

Wednesday, Roth said discrepancies in Rice's report need further examination. He pointed to the part of the report where Budimlic described first opening fire with two bullets after Smith pointed his gun at Rebello's head.

Roth said that in the shooting's aftermath, a police official said publicly that Budimlic opened fire after the suspect pointed a gun at Budimlic. "Here, he's saying a gun is pointed at Andrea when he shoots. The day after, police said the gun was pointed at police when he shot," Roth said.

Police Benevolent Association President James Carver said more people could have died if not for Budimlic's actions.

"Police officers must make split-second decisions and don't have the luxury of sitting back and waiting," he said.

At the time of the home invasion, Smith had convictions for robbery, attempted robbery and weapons charges, records show.

Carver said Budimlic currently works in an administrative role at police headquarters, and no protocol changes have been made to department policies since the incident.

A police source previously told Newsday that police deadly force investigators found Budimlic was justified in shooting Rebello and Smith. The department hasn't made any findings public.

Rice's report did not make recommendations, but Nassau police were considering revamping communications procedures following the incident, sources said.

The Rebello family's lawsuit contends the police were "negligent . . . in failing to follow Nassau County police hostage protocols."

The Rebello family declined to comment. Budimlic and the roommates who survived the incident couldn't be reached.

With Robert Brodsky, Nicole Fuller and Chau Lam

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