The customer who ran out of an Amherst bank and fired five or six shots at a fleeing armed robber on Christmas Eve will not be charged with a crime.

Erie County District Attorney Frank A. Sedita III said he decided not to file charges or present the case to a grand jury because he believes the man acted reasonably and within his legal rights in shooting at the robber.

Sedita and Senior Trial Counsel Thomas M. Finnerty pointed out that the customer, whose name wasn’t released, is a mature 63-year-old and doesn’t have a criminal record.

They also noted he waited until the robber was outside the bank and wasn’t near anyone before yelling at him to stop and then firing.

“This man was clearly not acting as a cowboy, was not acting as a vigilante, was not acting in a reckless way,” Sedita said in an interview.

Earlier this month, Sedita asked Finnerty to review the case file after Amherst police opted not to charge the gunman with reckless endangerment or another crime.

The Dec. 24 robbery took place just before 9:15 a. m. at the Citizens Bank branch at 3180 Sheridan Drive, near Bailey Avenue.

The robber displayed a gun as he ordered the 10 or so patrons and employees inside the bank to raise their hands before demanding money from the tellers, police said. The cus-

tomer, who has a legal pistol permit, told Amherst police he didn’t take out his gun inside the bank because he didn’t want any employees or customers to get hurt, Finnerty said.

He also told police he waited until the robber was running outside along the side of a building, where no one else was around, before firing five or six shots at him.

He told police he yelled, “Halt,” and held out his handgun long enough that the fleeing robber could see he was armed before opening fire, Sedita said.

“The citizen here took very careful and specific efforts to make sure innocent bystanders weren’t endangered,” the district attorney said.

One bullet hit the wall of the building and the others presumably hit the ground, Finnerty said. No one was shot, and the robber hasn’t been caught.

The customer cooperated with police and did not retain a lawyer.

Finnerty recommended against charges for the customer, and Sedita concurred.

In New York, the law on the use of deadly force is complicated and depends on several factors.

Sedita and Finnerty said their decision came down to a few key points:

The customer had reason to believe deadly force was needed to effect a citizen’s arrest; he had reason to believe the man fleeing the bank had just committed a robbery; and the shooting was neither willfully negligent nor reckless in putting bystanders at risk.

“We feel that the use of deadly physical force was justified,” Sedita said.

Sedita said he felt it was unnecessary to bring the case to a grand jury.

However, he did bring to a grand jury the case of Amherst homeowner David D’Amico, who shot and killed a drunken intruder in his home last March

28. A grand jury cleared D’Amico in the death of David W. Park, an Albany teacher, who entered D’Amico’s home and refused to leave even after D’Amico said he warned him that he was armed.

“If someone had been wounded or killed under these circumstances,” Sedita said of the shooting following the bank robbery, “I think I would be compelled to present this case to a grand jury.”

swatson@buffnews.comnull