Judge dismisses proof in case in which cops advised man to break into home of ex-girlfriend

Gary Craig | Democrat and Chronicle

Show Caption Hide Caption Man breaks in at cop's advice; woman responds with gun A boyfriend called the cops after his girlfriend locked him out. But the situation escalated when the police told him he could break into the home.

Moments after arriving at the city house, Rochester Police Officer Korey McNees offered a solution for the man standing outside who wanted to retrieve items from his uncooperative girlfriend who'd earlier changed the locks:

Just break into the house, McNees said.

The boyfriend did, and his estranged girlfriend, Catherine Bonner, responded by pointing a 9mm rifle out the window. She was charged with criminal possession of a weapon and menacing a police officer — but a judge's ruling Tuesday dealt a severe blow to the prosecution's case.

McNees' insistence over 20 minutes that the boyfriend could break into the home contravened both Rochester police policy and apparently state law, state Supreme Court Justice Charles Schiano Jr. ruled. Prosecutors "have been unable to point to any New York Statute, rule, regulation or case law, providing authenticity for Officer McNees' advisement," Schiano ruled.

Also, Schiano determined, police illegally searched Bonner's home after her arrest, finding the 9mm rifle. He ruled that the rifle could not be used as evidence in a trial.

Police body-worn cameras captured the exchanges with police and the boyfriend. McNees told the man time and time again in conversations outside of Bonner's Genesee Park Boulevard home that, if the boyfriend lived there, then he was in his legal right to kick in a door or break a window. He was seeking the return of some possessions: a small refrigerator, an air conditioning unit, and gift cards.

But, as Schiano noted in his ruling, the police paid no heed to Bonner's claim that the boyfriend no longer lived there, nor did they acknowledge the boyfriend's statement that he did not receive mail there. He has a home in Livonia; his driver's license, which police did not check, shows that address.

Bonner's attorney, David Pilato, had contended that evidence in the case should be suppressed because the police actions before, during, and even after Bonner's arrest were clearly unconstitutional.

Prosecutors differed saying Bonner had no cause to stick the rifle out the window, even if the police were in the wrong when telling the boyfriend he could break in.

Pilato said Tuesday that the criminal possession of a weapons charge is surely moot because of Schiano's ruling — since prosecutors can't use the weapon as evidence. He said the menacing charge is also severely weakened.

Assistant District Attorney Michael Bezer said, since the alleged menacing happened before the search, those allegations can still be prosecuted.

Should the case go to trial, key evidence will surely be the body-worn camera video and McNees' continued advice to the boyfriend that he could break into the home — the very advice that Schiano determined appears to have no foundation in law or policy.

At a hearing last month, McNees defended his handling of the matter, claiming that both police policy and state law supported his advice. Police leadership this year instead issued a directive, advising just the opposite of the actions McNees took.

New policy bulletin on civil incidents issued

In March of this year, the department issued a policy bulletin telling officers that, when responding to a civil domestic incident when one party is locked out of a home, they "will not advise citizens that they have a right to 'break in' to the residence, or that (police) members will stand by while he or she does."

The directive, issued in response to the Nov. 13 incident, reminds police that they likely can't determine who is an actual resident while at the scene and that encouraging someone to break in "can possibly create a violent confrontation" between the parties.

Previously, a broad policy directed police to "not use the powers of their office to render assistance" in matters that are clearly civil. The policy did not go into detail about the type of situation McNees confronted.

The March directive, Pilato said this week, clearly proves that McNees was in the wrong. Yet at the pre-trial hearing last month, Pilato said, McNees testified that "he's been trained on this and he has been doing this for 17 years."

Police declined to comment on whether there was any disciplinary action involving the officers with the Nov. 13 incident.

A domestic call

The night before the Nov. 13 incident, Bonner and her boyfriend had a volatile disagreement. He left the house in his car. She accused him of running over her foot and breaking it. He maintained she ran into the car as he was speeding away.

A relative of Bonner called 911, and, according to court papers, police responded and talked to her. This domestic confrontation, Pilato contends, is central to understanding what happened Nov. 13.

Before noon on Nov. 13, the boyfriend returned, wanting some items he'd left there. He found the house locked and the locks changed. Bonner would not let him in. The Democrat and Chronicle is not identifying the boyfriend because there are allegations of domestic violence for which he was not criminally charged. Attempts to contact him by phone were also unsuccessful.

He called the police. McNees and another officer responded to what they realized was a civil — and not criminal — matter.

Based on comments from the boyfriend, the police determined that he was a resident of the house. He had been staying there with Bonner, but the home was actually owned by her mother.

During April's pretrial hearing, McNees testified that he knew from his training that there is a New York law stating that "if you live somewhere for 10 consecutive days, you're allowed to gain entry into your own home.

"You can go in there," McNees said. “He can go kick the door in, go to the fridge, open a beer, sit down, and start watching television."

As Schiano noted in his ruling, neither defense nor prosecutors have found any such law.

Pulling the weapon

On Nov. 13, McNees talked to Bonner through her door, but she refused to let the police in. Pilato said she has been the subject of past domestic abuse — even her boyfriend told police that she has had difficult relations in the past — and was fearful of opening the door with her boyfriend there. Bonner told McNees of the previous night's confrontation.

The boyfriend also told the police of the previous night's incident, revealing that Bonner was accusing him of an act of domestic violence, which he denied. The police did not check on the report, and McNees continued to tell him he was within his right to break in.

"We weren't there for that incident," McNees said at the pretrial hearing. "We were there to help him retrieve property."

The boyfriend did tell police that Bonner owned a firearm, and he also once asked the officers if they could provide a report that he could simply take to small claims court to try to retrieve his goods.

McNees told him, again, that he was in his right to break in, whether through a door or window. "You will not be arrested for damaging the property," he said.

Finally, the boyfriend smashed the glass of a lower-floor window, prompting Bonner to stick the gun through it. Officers pulled their own guns and Bonner first ran upstairs in the house, then, at police orders, came back downstairs and laid down on the floor. After busting open a door, police found her still on her stomach inside the house and arrested her.

Pilato contended that McNees' insistence that the boyfriend was in his legal right to break in, plus Bonner's state of mind, caused the chaotic response.

"There's no dispute that she was at the hospital the night before after suffering a broken foot," Pilato said. "She was pleading to police that she doesn't feel safe. She was extremely fragile mentally. She could not believe that law enforcement was helping her boyfriend, who had broken her foot, break into her house."

'Sweep' of house results in firearms charges

Bonner did not point a gun at police, as the criminal charge contends, Pilato maintained.

In court papers, Assistant District Attorney Bezer said the decision to break a window and enter the house ultimately rested on the shoulders of the boyfriend.

"Rather than going through the door or suing (Bonner) in small claims court, (the boyfriend) chose to break the window," Bezer wrote. "In response, (Bonner) chose to respond irrationally by pointing a loaded rifle at (the boyfriend) and Officer McNees."

It doesn't matter whether McNees had any foundation for his claims that the boyfriend could legally break in, Bezer wrote.

"Regardless of whether or not Officer McNees provided sound legal advice, (the boyfriend) made the decision to enter through the window," Bezer wrote.

In his legal filings, Pilato has argued that the police caused Bonner to react as she did. He acknowledged that he had not found criminal cases of a similar nature.

Pilato wrote: "There is not a great deal of case law dealing with this scenario; presumably, and hopefully, because most police officers do not encourage break-ins when responding to domestic requests for the return of property."

GCRAIG@Gannett.com