Judge's order accuses RPD officer of lying
Updated: Friday, July 12 2013, 09:09 PM EDT
Rochester, N.Y. --- It was a drug investigation in March and the focus was a man who lived on Roxborough Road in the City’s 19th Ward. Officers would find drugs and cash inside the home of Christopher Charles McNair who would later be indicted on charges that included Criminal Possession of a Controlled Substance 1st Degree; a Class A Felony that carries with it a possible twenty year prison sentence.
But that charge and most every other charge in the indictment was dismissed by a judge who called the search of McNair’s home “warrantless” and “unconstitutional.” Monroe County Court Judge Doug Randall also “called into question”Rochester Police Officer Ryan Hartley’s testimony on the witness stand multiple times and stated in one case that his account of the investigation was “sufficiently discredited.”
Judge Randall’s decision was issued about a month after Officer Hartley was sued for lying on a police report that led to all charges being dropped in an unrelated drug case. The City of Rochester, the Rochester Police Department, and fellow-RPD Officer Rob Osipovitch were also named in that civil suit.
Osipovitch was also involved in the McNair investigation on Roxborough Road and, to the best of anyone’s knowledge, both officers remain on patrol.
The Locust Club Police Union confirms no knowledge of any pending disciplinary proceedings or investigations against either officer as a result of Judge Randall’s decision.
Rochester Police Chief James Sheppard had no comment on Monday and acknowledged that he first became aware of Officer Hartley’s testimony following a 13WHAM News inquiry into the matter. He did promise to learn more about the situation and respond once he does.
Roxborough Road Investigation & Judge’s Order
Judge Randall’s order issued August 9th lays out testimony provided to the court by Officer Hartley and other witnesses during a proceeding to determine what evidence would be admissible at trial. Police officers obtained a warrant to enter McNair’s home around 11 p.m., but only after McNair was in custody after being pulled over for a traffic violation.
Officer Hartley reportedly secured a perimeter around McNair’s home and told the court he made entry only after that search warrant was obtained. He also told the court his interest in the Roxborough Road home and McNair was the result of a tip from a “concerned citizen,” who was later identified as a confidential informant.
Judge Randall’s decision later reads, “Said informant could not in any way be considered a ‘concerned citizen’ as characterized by Officer Hartley.”
Another piece of testimony and evidence that contradicts Officer Hartley’s testimony was obtained through an ADT Home Security System at McNair’s home that notified the 911 Communications Center that someone entered the home around 8 p.m. Subsequent motion sensors were triggered following that. Two neighbors across the street also testified that they saw police officers with flashlights inside McNair’s home around that same time.
"The alarm showed that entry was made into the house at approximately 8 p.m.,” said McNair’s lawyer Christopher Rodeman. “And the Rochester Police Department did not obtain a warrant until approximately 11 o'clock.”
Judge Randall’s decision at one point reads, “Officer Hartley’s testimony stating that no on entered the residence at 375 Roxborough Road until he returned with a signed search warrant is sufficiently discredited by the testimony of the confidential informant, Maggie Bell (neighbor), Nakeya Bell (neighbor), Stephen Fischer and the timing of the 911 calls, the motion sensor alarm, the ADT Security alarm notifications, and the CAD (911/police) reports related to what occurred inside the residence at 375 Roxborough Road on March 14, 2012.”
"I was alarmed by it but in this particular case, due to the posture of RPD, I wasn't surprised by it; this was pretty blatant,” Rodeman said.
All but a two charges in the indictment were dismissed and Rodeman said his client pled guilty to a misdemeanor charge and received three years probation as part of the deal. Court records indicate that McNair spent about three weeks in jail before posting a $50,000 bond in order to bail out.
"My client has moved on with his life and is gainfully employed and is trying to get through this,” Rodeman said.
Officer Hartley and Officer Osipovitch both were involved in drafting the search warrant according to Judge Randall’s decision and order.
The Other Lawsuit
"These officers should immediately be taken off the street and put at desk jobs,” lawyer John Parrinello said upon reading Judge Randall’s decision. Parrinello is representing Jeramie Barideaux in a civil lawsuit filed July 19th against the City, RPD, Hartley and Osipovitch.
Barideaux spent about four months in jail before seeing all the charges against him dismissed by New York State Supreme Court Justice Daniel Doyle. The charges stemmed from a car stop in July 2011 in which Hartley and Osipovitch claimed Barideaux rolled through a stop sign.
A subsequent search of his vehicle led to felony drug charges. But a city traffic camera clearly shows Barideaux did come to a complete stop, and thus Hartley and Osipovitch had no probably cause to search his vehicle.
Judge Doyle’s decision reads in part, “...based upon the review of the video, there’s no ambiguity at all that a car being operated…(by Jeramie Barideaux) did come to a complete stop before the police stopped the vehicle…”
"These people deserve to be taken off the street because apparently they have not read the 4th Amendment, they do not respect the 4th Amendment (and) they have violated the due process of individuals,” Parrinello said. "I can't believe the district attorney's office is unaware of this unconstitutional conduct on the part of Osipovitch and Hartley.”
D.A. Doorley Responds
After initially issuing a no comment through a spokesman, Monroe County District Attorney Sandra Doorley released this statement late Monday afternoon.
"As District Attorney, I have a responsibility to hold every citizen in Monroe County—including police officers and elected officials—to the same standard of conduct under the law. Issues of witness credibility are raised in hearings and trials every day, and this case was no different. In this case, the judge made a credibility determination and the case moved forward accordingly. With regard to witness testimony that remains in question, matters of that nature go through a thorough review process to consider action, and it would be improper for either myself or any of the attorney’s in my office to comment or speculate until that process is complete."
13WHAM’s efforts to reach Officer Hartley or Osipovitch through their union representatives were unsuccessful on Monday. While multiple law enforcement and legal sources indicate each remains on patrol, no official confirmation of that from the Rochester Police Department has been given.
Parrinello is asking for more than $300,000 in damages for Barideaux, who has rejected the initial counter offer from the City of Rochester.
McNair is said to be considering his legal options.