The Roxborough Rd. drug case
Updated: Friday, July 12 2013, 09:54 PM EDT
Rochester, N.Y. - Exclusively obtained transcripts of witness testimony and recordings of 911 calls are all part of a 13WHAM News investigation into a controversial drug investigation centered around a Roxborough Road home.
A Judge determined Rochester Police Officers conducted a“warrantless” search of that home and dismissed serious charges against the defendant. He also “called into question” the credibility and testimony of a Rochester Police officer.
This news investigation raises questions about communications between the Monroe County District Attorney’s Office and the Rochester Police Department.
For some, it also raises questions about police tactics, training, and conduct. For others it raises questions about how the case was prosecuted and prepared for the judge. Still others are questioning the recently-elected Judge’s decision and his reasoning for that decision.
In this comprehensive report you can view all of court transcripts obtained by 13WHAM News in the course of this investigation. You’ll also find links to our previous reports on this criminal case, relevant court documents, and all statements issued by officials on this case.
All of this information is presented so you can formulate your own questions and answers as to what happened in the Roxborough Road Drug Case.
Background on Roxborough Rd. Investigation
The case is People v. McNair and it began in mid-March with the arrest of Christopher Charles McNair. It ended in late August when McNair was offered and accepted a plea deal to a misdemeanor drug charge with a sentence of three years probation and no jail time.
An eight-count indictment filed weeks after McNair's arrest charged him with the most serious drug charge the state allows(Criminal Possession of a Controlled Substance 1st Degree, Class 1-A Felony) and the charge exposed McNair to the possibility of twenty years in state prison.
In early August, Monroe County Court Judge Douglas Randall issued a 16-page decision (attached) that dismissed most of the charges in that indictment on the basis that Rochester Police Officers made entry into McNair's Roxborough Road home some three-hours before obtaining a search warrant. Judge Randall's decision also went so far as to state that Rochester Police Officer Ryan Hartley's testimony was "sufficiently discredited" and on multiple occasions his "credibility is called into question."
13WHAM News first learned of this case and decision in late September. We later learned in our inquiries that Officer Hartley, Police Chief Sheppard, nor any other member of the RPD were informed of Judge Randall's decision nor the outcome of the criminal matter.
By the end of that week Monroe County District Attorney Sandra Doorley stated that she disagrees with Judge Randall's decision and also said on a local radio interview that, "I almost think it is reckless and irresponsible without support in the record to call this officer a liar."
In a subsequent media statement D.A. Doorley further stated that, "it is truly regrettable that Officer Hartley's integrity or honesty was called into question regarding this matter."
The Rochester Police Locust Club union stands by their officer's actions and credibility while also expressing a desire to clear the names of these officers whose credibility has been called into question. President Mike Mazzeo tells 13WHAM News he has gone "line by line" through all the testimony and can defend each and every action of his officers. Mazzeo also said he believes the Judge’s decision shows that the case “wasn’t prosecuted correctly” and he questions why Chief Sheppard hasn’t been more publicly supportive of his officers.
On September 28th, the same day D.A. Doorley released her statement to the media and conducted that local radio interview, Rochester Police Chief James Sheppard thanked Doorley for her "support and confidence" in these officers and acknowledged that he takes "very seriously" specific questions "raised about the integrity of our officers." The RPD is now said to be conducting "a complete, fair and impartial review of this case" and will discuss with the union about releasing those findings to the community once it is complete.
Officers Hartley and Osipovitch are presently not assigned to patrol duties.
An undisputed fact remains; Officer's located inside 375 Roxborough Road, McNair's residence, more than a half-pound of cocaine with a street value of more than $10,000, drug paraphernalia used to dilute, weigh and/or package that cocaine, a 12-guage shotgun, multiple shotgun shells, and some $1,900 in cash were also seized.
A 13WHAM News Investigation Continues:
Knowing the significant questions People v. McNair raises 13WHAM News spent the past two weeks closely examining evidence, testimony, court filings, and public statements by those involved in this case.
The information attached and below was presented during a suppression hearing in which the defendant challenges how evidence used against him was obtained in the course of this investigation.
At the conclusion of this hearing the judge determined only evidence supporting two traffic violations and the possession of a small amount of cocaine was legally sufficient to present at trial; all charges related to evidence seized inside 375 Roxborough Rd. were dismissed.
Below is a detailed narrative of what transpired with what we believe to be relevant testimony and evidence. Where possible we’ve added appropriate perspective from various parties involved.
MARCH 14, 2012
A Tactical Unit of the Rochester Police Department is conducting surveillance on 375 Roxborough Rd around 7 p.m. based on information received a day prior. Officer Ryan Hartley testifies in court that the information came from a "concerned citizen" but further testimony reveals that the "concerned citizen" is in fact a "confidential informant" who was the subject of a police stop for not using a crosswalk.
We have no information as to what that confidential informant (C.I.) testified to as that occurs in a closed proceeding (Darden Hearing) but Judge Randall's decision indicates that "police found 56 bags of cocaine and a little knife" on the C.I. when he was stopped. The Locust Club Police Union puts little weight in this testimony yet Judge Randall did credit the C.I. in his decision.
Officer Hartley states that he saw Christopher McNair enter the Roxborough Rd. home with a key that unlocked a front porch door. He then saw McNair leave 15 minutes later at which point he instructed nearby uniformed officers to pull McNair over knowing he was driving without a valid driver's license. Upon observing McNair make a turn without using a signal properly, Officer Brandon Ince and his partner pull McNair over.
McNair speeds into a nearby parking lot on Chili Avenue, discards a small baggie of what was later determined to be cocaine, and is taken into custody. Officers remove the keys from his vehicle and transport them back to Officer Hartley at 375 Roxborough Road a little before 8 p.m.
By the end of March 14, 2012 officers had searched 375 Roxborough Road, discovered a large amount of drugs, paraphernalia, cash, and a shotgun with shells. McNair was charged and later indicted and the events of March 14, 2012 between approximately 8 p.m. and 11:30 p.m. become the focus of this suppression hearing and this 13WHAM News Investigation.
OFFICER HARTLEY'S TESTIMONY:
Officer Hartley's testimony (attached) describes his approaching 375 Roxborough Road with McNair's keys around 8 p.m.
HARTLEY: "...I went to the front porch, which was locked. I utilized the keys that were from the traffic stop to access the front porch. Once inside, I attempted to do a knock and talk on location to see if anybody was there and upon doing so, the front door went ajar and an audible alarm inside activated."
A.D.A. Peter Lewis asked: "Did you notice anything about the door knob when you went to do the knock and talk of the inner door?"
A. There wasn't one.
Q. What happened after that?
A. Upon hearing the audible alarm, I yelled inside to the house that the police were on scene. Is anybody inside the house? I didn't hear any movement inside the house. I didn't hear any running. I didn't hear anybody answer. The audible alarm continued. So, I was yelling over the top of that. Upon hearing nothing inside the house, we walked off the porch and our uniform support that was in the area stayed at that location along with my supervisor.
Q. At any point in time did you or anyone else in your presence actually enter the house itself?
Q. What did you do relative to the door that didn't have the doorknob, the inner door?
A. Pulled it closed the best that I could without the door handle.
Q. What happens next?
A. At that point, I left the location with Officer Osipovitch to draft a search warrant for the residence.
Officer Hartley later testifies that a Rochester City Court Judge signed a search warrant for 375 Roxborough Rd. at approximately 10:49 p.m. and that he returned to that home around 11 p.m. Between 8 p.m. and 11 p.m. testimony from Hartley and other police witnesses indicates that the no fewer than four police officers maintained a perimeter around 375 Roxborough Rd. and that nobody witnessed anyone entering or leaving the residence.
The subsequent search of the home after 11 p.m. revealed nobody inside but led to the discovery of drugs, paraphernalia, cash, a gun, and ammunition.
JUDGE RANDALL'S RULING:
A statement issued by D.A. Sandra Doorley (attached) indicates that "Judge Randall's strongly worded August 8th decision"that "called into question Officer Hartley's credibility compelled the District Attorney's Office to conduct an immediate review of this particular case."
Specifically Monroe County Court Judge Doug Randall's decision states: "Officer Hartley's testimony stating that no one 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, Nakeya Bell, Stephen Fischer and the timing of the 911 calls, the motion sensor alarm, the ADT Security alarm notifications, and the CAD reports related to what occurred inside the residence at 375 Roxborough Road on March 14, 2012."
The judge notes that testimony from Maggie and Nakeya Bell was "not impeached with any criminal history, nor prior inconsistent statements."
He continues by stating that, "This court determines that a warrentless search of the residence at 375 Roxborough Road did take place prior to securing and executing a search warrant and the people failed to present any evidence of exigent circumstances for the entry."
The Locust Club Police Union points to this statement as an indictment on the prosecution for failing to present evidence that supports the officers’ testimony and account of events.
The judge also notes multiples times on Page 13 of his decision that Officer Hartley's credibility is "called into question" and his testimony is "contradicted."
13WHAM News notes that a prior ruling by Judge Randall in an unrelated and still pending homicide case out of Brighton(People v. Wyant) was unanimously overturned by the Appellate Division. Law enforcement and legal sources have raised that as a reason one might question Judge Randall’s judgment and credibility. Judge Randall, who is in the first year of his term on the bench, has not responded to a request for comment likely due to ethical guidelines for judges.
MAGGIE BELL'S TESTIMONY:
Maggie Bell is a 69 year-old grandmother who lives at 378 Roxborough Rd, directly across the street from McNair's home at 375 Roxborough Rd. She tells the court that she remembers the events of March 14, 2012 very well because it was the day her daughter's father died. She states that she was at church all day and returned home around 8 p.m. Her testimony begins with questions from McNair's lawyer Christopher Rodeman.
Q. When you went back home, did you notice anything at 375 Roxborough Road?
A. Well, on my way home I saw all the police cars down there and I was wondering if anything had happened to one of my kids or something. Then as I approached the house, I saw the police walking around the house and then they went inside of the house and I went on in my house.
Q. And they went inside the house. Was that 375 Roxborough Road?
Q. And did you see how they went through the house?
A. They went through the front door.
Q. When they went through the front door, did you know if they actually went into the house through the front porch?
A. They went in the front porch and then in the house.
Q. Through the front door that's on the house?
Q. So, they actually went into the physical house itself?
Q. After you observed this, what did you do?
A. I went on inside my house.
Q. Did you have occasion to go back outside on the front porch at some point?
A. Yes, I went back outside and they was in the house with the flashlights.
Q. You could see flashlights in the house?
Q. Is that a yes?
A. That's a yes.
Q. You observed flashlights across the street at 375 Roxborough Road?
Q. You saw policemen enter the house, right?
Q. And do you recall approximately how many?
A. No, I don't. I don't know exactly how many because there was some outside and some in the house.
Q. But you definitely saw police officers with flashlights inside the house?
Maggie Bell's testimony on cross-examination from Assistant District Attorney Peter Lewis later continues:
Bell: The door was opened and you can see the flashlights. You can see the light from the flashlights.
Q. Okay. And where was the light coming out of? Was it these windows here, the windows themselves? There's four
A. The reflection from the flashlights was coming from the door and the windows.
Maggie Bell later answers direct questions from Judge Randall that reveal she wears glasses but had them on that night and that she was standing in her driveway with a clear and unobstructed view of 375 Roxborough Road.
The Locust Club Police Union, and D.A. Doorley, point to consistencies in Bell’s testimony that support Officer Hartley’s “knock and announce” approach to the door as Bell does testify that she heard that from across the street. However, the Locust Club raises additional questions about her seeing more than one police car on the scene when she returned home as they know of only one marked patrol car assigned to that address at 8 p.m.
NAKEYA BELL'S TESTIMONY:
Nakeya Bell is Maggie's daughter and she tells the court that she remembers March 14, 2012 because it was "the day before my father's funeral." She reports arriving home around 8 p.m. as well, that she lives at 378 Roxborough Rd. with her mother (Maggie) and daughter, and that because of the death in her family she remained outside in the driveway with friends and family members much of the evening talking and also observing the police activity at 375 Roxborough Rd. We pick up her testimony when she is questioned by McNair's lawyer about seeing police enter the home around 8 p.m. (NOTE: see questions about this testimony and timeline below)
Q. Do you recall approximately how many police?
A. I'm not sure. I saw three in the doorway. One was on the steps. One was right in the front of the door by the steps and one was entering, going this way, but it was more than three cops inside of the premises.
Q. Did you observe anything on the second floor?
A. No. Just the officers on the steps.
Q. When you say on the steps, was that on the steps located inside the residence?
A. Inside the house, yes.
Q. And those steps lead to the second floor?
Q. Did you observe any flashlights?
Q. Do you know how many flashlights you observed?
A. Well, all of the officers, the two -- the three that I saw standing there, yes, but it was officers upstairs because you could see the lights, the flashing of the lights on the upstairs part of the house.
Q. Okay. You could see that through the windows?
Q. And that's a yes?
---LATER SHE IS ASKED:
Q. Could you see clearly through the front door 375 Roxborough?
A. Yes, that's how I'm aware that their stairs is right when you open the door.
Q. Had you ever been inside that residence before?
13WHAM News notes that questioning of Nakeya Bell also reveals some inconsistencies as to how long officers were in the home and around the home. She admits not paying close attention to an exact timeline of events and questioning from lawyers does not appear to pin down a definitive timeline.
Judge Randall credits Nakeya Bell's testimony by stating that, "Ms. Bell estimates that the officers were in the house approximately one half hour prior to exiting the house, closing the front doors, and establishing a perimeter around the residence. Ms. Bell did see the officers (re-enter) the residence a couple of hours later."
The Locust Club Police Union raises additional questions about Nakeya Bell seeing multiple police cars on the scene around 8 p.m. Neither Maggie nor Nakeya Bell appear to testify that they heard an audible burglar alarm that Officer Hartley and the 9-1-1 center documented. Additional questions from the union focus on what they believe was inadequate cross-examination.
STEPHEN FISCHER'S TESTIMONY:
Stephen Fischer is a 911 Center Technician and he was called to the witness stand to substantiate, explain, and present exhibits related to activity at 375 Roxborough Road around 8 p.m. on March 14, 2012. Fischer testifies specifically to what Judge Randall describes as, "...the timing of the 911 calls, the motion sensor alarm, the ADT Security alarm notifications, and the CAD reports related to what occurred inside the residence at 375 Roxborough Road on March 14, 2012."
Most notable in this testimony appears to be the report of not one but two ADT Security alarms at that home; the first being a front door burglar alarm that was also an audible alarm, the second included a motion sensor alarm from the same ADT Security system.
13WHAM News obtained the recordings of two calls, from two different ADT representatives, to the 911 center that evening. Mr. Fischer states the following in court when asked by McNair's lawyer:
Q. Mr. Fischer, approaching you and handing you Defendant's Exhibit J2 admitted into evidence, the CAD report, what particular CAD report am I showing you?
A. You're showing me a CAD report relating to the address of 375 Roxborough Road relating to a burglar alarm.
Q. And what time did the call come in?
A. 2000 hours and 54 seconds, which would be eight p.m.
Q. And does this particular CAD report indicate that there was a motion detector activation on the first floor?
Q. Approximately what time was that recorded by the system?
A. Seven minutes after eight.
Q. Thank you.
13WHAM News points out that no detailed examination appears to have occurred that explains the typical time lapse that occurs between when an ADT alarm is triggered and when the 9-1-1 call is initiated by that security system. No ADT representatives testified in court and no questioning of Mr. Fischer addressed what’s involved in alarm calls to the 9-1-1 center.
D.A. DOORLEY'S DEFENSE OF OFFICER HARTLEY:
In addition to a media statement released on Friday September 28, 2012 (attached) D.A. Doorley made a six-minute on-air call to WHAM1180-AM's Bob Lonsberry. Her office also issued an additional statement on October 8th in response to repeated 13WHAM News inquiries.
“The Office of the District Attorney considers this matter concluded, and would once again like to thank Officer Hartley for his continued service to the community," that most recent statement reads.
"I reviewed the file, I reviewed every piece of paperwork in the file and I strongly disagree with Judge Randall's decision," Doorley told WHAM1180's Bob Lonsberry. "I don't believe there was enough evidence that came out during the course of that hearing to come out and call Officer Hartley a liar."
"Was that evidence of people going into the house not convincing to you?" Lonsberry asked.
"Well exactly," D.A. Doorley responded. "Officer Hartley testified that he got the key, he opened up the front door he walked through, well the door of the porch, he had gone in to open up the interior door to clear the house. The alarm went off. Once he realized that no one was home the house was then secured, they went and they proceeded to get the warrant."
D.A. Doorley later elaborated by saying, "There was no door handle or door knob on that door and the officer testified, he opened the front door, walked onto the porch, knocked to say knock-announce. The door had opened, the alarm went off, he called inside to see if anyone was home. No one wasn't, he then left and went and secured a search warrant."
In addition, D.A. Doorley said, "My reading is that there were a lot of consistencies between, between all of the prosecution witnesses and the neighbor witnesses who testified on behalf of the defense."
As to the judge's decision, "I believe that the judge made a credibility decision not in our favor and yes I disagree with it."
Lastly stating on the air that, "I almost think it is reckless and irresponsible without support in the record to call this officer a liar."
D.A. Doorley’s Office October 8th statement addresses that comment in this way:
“As I stated during a recent interview, the media reports asserting that Officer Hartley lied were reckless and irresponsible. The fact that two people come to different conclusions from the same testimony and evidence is not unusual, but this hardly supports a finding that someone intentionally lied.”
It should also be noted that the Locust Club Police Union credits D.A. Doorley for her support but also for her personal involvement in an unrelated case presented before a judge earlier this month. In that case D.A. Doorley personally handled the suppression hearing where Officers Hartley and Osipovitch testified. The Locust Club states that the judge rendered a decision instantly in favor of the prosecution.
D.A. Doorley has declined repeated interview requests from 13WHAM News.