INVESTIGATION INTO THE DEATH OF KURT ALBERT DOERBECKER

July 9, 2012 KATHLEEN M. RICE

DISTRICT ATTORNEY

CONTENTS
I. II. III. IV. V. VI. INTRODUCTION .................................................................................... 1 BACKGROUND INFORMATION AS TO KURT DOERBECKER......2 BAR/HOME INVASION/SHOOTING INCIDENTS......3 INVESTIGATION BY CRIME SCENE DETECTIVES.......19 SEARCH WARRANT....................20 AUTOPSY FINDINGS.......21

VII. BALLISTICS......23 VIII. LEGAL ANALYSIS.......23 IX. CONCLUSION.......27

I.

INTRODUCTION

This report follows an investigation, ordered by District Attorney Kathleen M. Rice and conducted by her staff, into the shooting death of Kurt Albert Doerbecker on August 30, 2011. The investigation included interviews with police officers and civilian witnesses as well as a review of physical, forensic, and ballistics evidence. For the reasons stated herein, the Nassau County District Attorneys Office (NCDA) has concluded that no potential criminal charges should be presented to a grand jury. On August 29, 2011, the weekend of Hurricane Irene, at approximately 10:23 p.m., a call was placed to the 4th precinct of the Nassau County Police Department (NCPD) to report a disturbance by a young man in his twenties at the Buoy Bar, located at 72 Bayside Drive in Point Lookout. At approximately 11:54 p.m., a Point Lookout resident (who lived a few blocks away from the Buoy Bar) called 911 to report a home invasion by a masked white male, in his early twenties, wearing a hat and camouflage clothing, and brandishing a sharp instrument. Police responded to both the home and the bar. A brief investigation revealed, among other things, that the man causing a disturbance at the Buoy Bar had returned there several times, at some point wearing a mask, hat, boots, and camouflage clothing. The police determined that the subject of both calls was Kurt Doerbecker,1 who lived in close proximity to the bar and home invasion locations. After the two incidents, Doerbecker was inside the Point Lookout waterfront house where he lived with his family. In the hours that followed, members of NCPD made numerous unsuccessful attempts to speak with Doerbecker at his home. Mr. Doerbecker, Kurt Doerbeckers father, indicated to

Throughout this report, references will be made to Kurt Albert Doerbecker (23 years old) and members of his family who share his last name. Doerbecker will be exclusively used as a reference to Kurt Doerbecker. Any reference to Mr. Doerbecker is to Doerbeckers father.

the police that there were rifles in the home. Members of the NCPD positioned themselves around the home, including the backyard. The police made numerous requests that

Doerbecker exit his home to discuss the situation. They received refusals and curses from both Doerbecker and his father. At approximately 1:30 a.m., Doerbecker climbed out a back window of the home and ran into the backyard where three uniformed officers from the 4th precinct -- Police Officers Shevach Berkovits, Oscar Walters, and Anthony Badolato -were stationed. Doerbecker had a knife in his hand. First, Doerbecker swung his hand at Officer Badolato. Then, despite orders to stop and drop the weapon, Doerbecker held the knife over his head and charged at Officer Berkovits and, finally, at Officer Walters. As Doerbecker was running at Officer Berkovits, Berkovits fired two shots at Doerbecker. As Doerbecker veered toward and charged at Officer Walters, Officer Berkovits fired one additional shot. That bullet struck Doerbecker in the back of his head, killing him instantly. An autopsy revealed that Doerbecker had .08 per cent alcohol in his blood. II. BACKGROUND INFORMATION AS TO KURT DOERBECKER Kurt Albert Doerbecker was born in 1988. He lived with his parents in Point Lookout. Mr. and Mrs. Doerbecker, through their attorney, John Cuti, Esq., declined to be interviewed for this report. Doerbeckers criminal history report shows that he has had two prior contacts with the criminal justice system. He was arrested on October 10, 2006, for Assault in the Third Degree in violation of Penal Law (PL) 120.00(1) and pled guilty to a disorderly conduct violation. On April 11, 2007, Doerbecker was arrested for Driving While Intoxicated in violation of Vehicle and Traffic Law (VTL) 1192.3. He was

convicted of Driving While Ability Impaired by the Consumption of Alcohol in violation of VTL 1192.1.

III.

BAR/HOME INVASION/SHOOTING INCIDENTS On August 29, 2011, Doerbecker, a man identified herein simply as C,2 Cs

girlfriend, and several friends were together at the beach. C reports that while they were at the beach, Doerbecker was saying random things, but nothing weirder than usual. Stating that he was going to drink vodka at home, Doerbecker left. C recalls arriving at the Buoy Bar, located at 72 Bayside Drive,3 Point Lookout, at approximately 9:00-9:30 p.m. While C was at the Buoy Bar, Doerbecker called him. C invited Doerbecker to join his group at the Buoy Bar. Doerbecker did so. The entire group was at the bar without incident until an altercation occurred between Doerbecker and C. The altercation was caused by what C characterized as

Doerbeckers inappropriate behavior towards Cs girlfriend. An argument ensued, and Doerbecker punched C in the face and ran down the block. C chased Doerbecker to Doerbeckers home, only a few houses away from the Buoy Bar. Presuming that

Doerbecker had entered his house, C yelled for Doerbecker to come back outside. Doerbeckers father came onto the front porch and threatened to call the police if C did not leave. C left and returned to the Buoy Bar where he told others what had transpired.

C was interviewed by NCDA on January 6, 2012. He was 23 years old on the date of the incident. To protect the privacy of the people involved, various individuals in this report are referred to simply by the initial of their first or last name. For the convenience of the reader, such "initial only" identifications are listed here: A Victim of home invasion; B Patron at Buoy Bar on August 29, 2011, overheard Doerbeckers threat to C; C Patron at Buoy Bar on August 29, 2011, had altercation with Doerbecker; K Valet at Buoy Bar, saw Doerbecker in mask and camouflage clothing; L Bartender at Buoy Bar, overheard Doerbeckers threat to C; and R Owner, with her husband, of Buoy Bar. 3 A bay borders the Buoy Bar and all of the residences along the North side of Bayside Drive, including the Doerbecker home.

That night, a man identified herein as K4 was a valet at the Buoy Bar. Outside, K saw Doerbecker, whom he knew, running out of the bar while carrying a beer and being chased by a man we now know to be C. K learned that Doerbecker had punched C. A male bartender, identified herein as L,5 recalled that Doerbecker was at the bar and drank two beers there. During the evening, C approached L and reported that Doerbecker had hit him in the face. L recalls telling C to let it go. Sometime after his altercation with C, Doerbecker, again carrying a beer, returned to the bar dressed in what K described as conventional clothing, possibly shorts and a t-shirt. K informed Doerbecker that he could not come back into the bar that night. Doerbecker cursed, yelled, and, in Ks opinion, created a scene in an attempt to gain re-entry. After his requests were repeatedly denied, he left. Doerbecker returned a short time later, again yelling profanities, and began charging the rear entrance to the Buoy Bar. Once again, K stopped Doerbecker and told him to go home and come back the next day. Although Doerbecker continued to yell profanities and was more aggressive than he had been earlier, he did not use any physical force. Doerbecker left the bar. Doerbecker returned to the front of the Buoy Bar again. He did not attempt to gain entry but, rather, walked back and forth in front of the Buoy Bar several times and then left the area. Doerbecker returned to the Buoy Bar a final time. This time, however, he

approached from the bay side of the bar and was wearing a hat, boots, camouflage-and-

4 5

NCDA interviewed K, a nephew of the owners of the Buoy Bar, on January 6, 2012. NCDA interviewed L on January 11, 2012; he provided a written statement on August 30, 2011. He had worked at the Buoy Bar for approximately eleven years, knew Doerbecker by face, and was familiar with his family.

black clothing, with a bandanna covering his face up to his eyes. Despite the change in clothing and the bandanna, K recognized Doerbecker. K recalled asking Doerbecker if he had not had enough already. According to K, Doerbecker turned and began to walk back in the general direction of the Doerbecker house. In at least one of Doerbeckers returns to the bar, bartender L and a patron, B, heard him claim that he had a knife and planned to use it against C.6 Ls recollection was that Doerbecker said he was going to come back and stick it in [Cs] gut. After Doerbeckers final return to the Buoy Bar, K reported Doerbeckers actions and clothing to R,7 Ks aunt and an owner of the Buoy Bar. At approximately 10:23 p.m., R called the NCPDs 4th precinct from her nearby home and reported a disturbance at the Buoy Bar.8 Police Officers Vincent Adamo and Brian Delaney responded to the Buoy Bar in two marked NCPD cars. They spoke with both patrons and employees there. K told the officers what he had seen. Bar owner R also told Officer Delaney what she knew of the incident. She said that the person who caused the disturbance was from the neighborhood, was named Kurt, and had come to the bar that night wearing an army-style jacket, a hat, and something covering his face. She also pointed in the direction of where she believed Kurt lived. Officer Delaney learned that C, the man punched and threatened by Doerbecker, did not want to press charges and refused to speak to the police.

Although Ls recollection is that C was present in the parking lot when Doerbecker threatened to stab C, C states that he does not recall seeing Doerbecker after chasing him. C was aware, however, that Doerbecker returned to the Buoy Bar that night. C says that the bar staff informed him that when Doerbecker returned to the bar he was wearing camouflage clothing, he was armed with a knife, and he threatened to stab C. C agreed to remain in the Buoy Bar until some time had passed and Doerbecker was gone. C recalls arriving home from the bar at approximately 12:00 or 12:30 a.m. When C left the bar, he noticed the police there. 7 NCDA interviewed R on January 9, 2012. The Buoy Bar is owned by R and Rs husband. 8 This call was not recorded because it was made to the 4 th precinct and not to 911. Officers were dispatched to the Buoy Bar at 10:24 p.m.

Officer Delaney asked when the bar would be closing. R indicated that it would close in approximately 15 minutes. The officer said he would park outside of the bar to ensure that it closed without incident. R asked Officer Delaney to move his car because one of the neighbors, who takes issue with the bar, had cameras that point towards that location.9 The officer therefore parked in front of a nearby establishment, Fishermans Catch. R then went to her nearby home. Doerbecker did not return while Officer Delaney remained outside the bar. Although no single witness recalled the exact time, all witnesses

statements are consistent with the bar closing shortly before 11:00 p.m. Once the bar closed, Officer Delaney went back on patrol. K recalls that when he left the Buoy Bar to go home at approximately 11:30 p.m., a police car was idling outside. A woman identified herein as A10 was in a second-floor bedroom of her Point Lookout home, in close proximity to the Buoy Bar. At that time, she heard a noise. In retrospect, she believes that the sound she heard was lawn chairs being knocked over in a spare bedroom. A went to check on her four-year-old son, who was in an upstairs bedroom, and on her mother, who was downstairs. After verifying that both were fine, she began to go back upstairs to her bedroom. As A was ascending the stairs, she noticed that the front door to her home was ajar. A had left her front door unlocked because she expected her two sons, ages sixteen and nineteen, to come home soon. She had spoken with them on the phone about ten minutes earlier and confirmed that her older son had picked up her younger son from a Sweet Sixteen party.

Homicide Detective William Brosnan attempted to retrieve any video tapes. He learned, however, that because the taping system had a short time loop, no video evidence was available. In the detectives opinion, based on the direction in which the camera was pointed, it would not have recorded the Doerbecker incidents. 10 A was interviewed by NCDA on January 17, 2012. Doerbecker had once worked with one of As sons.

She closed the door and turned to continue walking upstairs. As A did so, she observed a young man on the top of the stairs wearing a white or light gray bandanna that covered his face from his cheekbones down. The man held a sharp, shiny, approximately six-to-eight-inch long metal object. He had dark colored pants and a zipped-up, camouflage green jacket. The man jumped into a crouching position at the top of the stairs and

displayed the sharp object in his hand. A, still at the bottom of the stairs, yelled Get out of the house! The man then jumped the three or four steps to the landing near the front door where A was standing. He ran past her, through the front door, and out of the house. The man stopped on the front porch of the home; A once again yelled for him to leave. At that time, the intruder was still holding the sharp shiny object, which A described as a weapon. The man ran off. At no time did the intruder speak to A. A called 911. At approximately 11:54 p.m., having left the Buoy Bar, Officer Delaney received a radio notification concerning the invasion of As home. At

approximately 11:59 p.m., Officer Delaney was the first officer to arrive at the scene of the home invasion. Officer Delaney spoke with A. She told Officer Delaney, and he

transmitted over the police radio, that the man who entered her home was a white male, 58 to 59 tall, who wore some type of gray cloth covering his face, an army-style camouflage jacket, and dark pants. A further stated that the intruder had a sharp, shiny weapon, possibly a knife or a screwdriver, in his hand. Officer Delaney remained at the site of the home invasion with A and wrote out a supporting deposition for her.11 At 12:05 a.m., Officer Adamo broadcast over the police radio that Officer Delaney should be advised that this was the same man who was at the Buoy Bar earlier and caused the disturbance.
11

As deposition was dated August 30, 2011, and timed 01:05. The deposition indicates that the intruder was holding what appeared to be a screwdriver or an ice pick and wearing a green jacket with dark pants, a solid colored baseball cap with no logo on it, and a light gray cloth covering the bottom of his face.

Sometime after finishing her conversation with Officer Delaney and returning home, R learned that another police officer wished to speak with her. Arriving at the Buoy Bar at approximately 12:13 a.m., Officer Jared Baretti, from the 4th precinct, met R. R recalls an officer mentioning a home invasion and also asking R to describe the person who had caused the earlier disturbance at the bar. R told him that she did not want to be involved because she was friendly with Doerbeckers mother.12 She did, however, provide the name of Kurt Doerbecker as the person who had caused the commotion at the Buoy Bar earlier in the evening, and she related what K had said as to Doerbeckers clothing. R said that she did not know where Doerbecker lived. At 12:18 a.m., Officer Berkovits13 transmitted over the police radio that the name of the subject from the Buoy Bar was Kurt Doerbecker. Using police shorthand for a person who had required police assistance because of mental problems, Berkovits added that Doerbecker was known to the neighbors as a 10-62. R called Doerbeckers mother to inform her that the police were interested in speaking to Doerbecker. R urged Doerbeckers mother to cooperate with the police. R spoke with her for some time, and she called her back several times. According to R, Doerbeckers mother initially indicated that Doerbeckers father was talking to him and that Doerbecker said that he had not done anything. The mother indicated that she did not know what to do. R could hear Doerbeckers father yelling in the background. While R was on the phone with Doerbeckers mother, Police Officer Edward Carlson from the NCPDs Bureau of Special Operations (BSO) arrived at the Buoy Bar. R
12 13

During her interview at the NCDAs Office, R said that she continued to socialize with Mrs. Doerbecker. Police Officer Berkovits had heard police radio reports of both the disturbance at the Buoy Bar and the home invasion. On his way to the home invasion location, Officer Berkovits heard a radio transmission asking for an NCPD car to respond to the Buoy Bar. Berkovits therefore went to the bar. He was interviewed by the Nassau County District Attorneys Office on September 13, 2011. Present at the interview were ADA Mitchell Benson, ADA Melissa Lewis, ADA Jennifer Contreras, Detective William Brosnan of the NCPD Homicide Squad, PBA Attorney William Miller, and Second Vice President of the PBA Kevin Tobin.

handed him her phone and Officer Carlson then spoke to Doerbeckers mother. Officer Carlson gave Doerbeckers mother his own cell phone number so she would have a contact in the police department if she chose to cooperate. Officer Carlson asked Mrs. Doerbecker to tell her son to come outside their house. The conversation between Officer Carlson and Mrs. Doerbecker then ended.14 Meanwhile, at the Buoy Bar, Officer Berkovits spoke to Sgt. Nicholas Stillman. Officer Adamo returned to the bar. The bartender, L,15 agreed to accompany Officer Adamo down the street to identify Doerbeckers home. Adamo estimates that approximately ten minutes after the initial call concerning the home invasion was placed, L pointed out the Doerbecker house to the officer. L then walked alone back to the bar and went home. Officer Adamo believes that his was the first marked car at the Doerbecker residence; K-9 units, less than a block away at the home invasion location, arrived within moments. (K-9 officers had tried unsuccessfully to trace the scent of the home-invasion perpetrator, who had fled on foot.) Officer Adamo knocked on the front door of the Doerbecker home several times. No one answered the door and the house remained dark. Additional police cars and officers began arriving at the Doerbecker residence. Specifically, Officers Anthony Badolato, Shevach Berkovits,16 Oscar Walters, Rachel Miller, and Sgt. Stillman, all from the 4th precinct, arrived. Officer Adamo and Sgt.

Stillman went to the back door of the house and knocked several times, again with no answer.
14

Later, Officer Carlson received a call on his cell phone from Doerbeckers father. Officer Carlson requested that Mr. Doerbecker ask his son to come out of the house and speak to the police. During this conversation, Mr. Doerbecker told Officer Carlson that he had rifles in the house. (Officer Carlson later spoke to Doerbeckers father outside of the home, in person; Mr. Doerbecker again said that he had rifles in the house.) 15 L recalls that, as he was closing the bar, two police officers pulled up. The officers indicated that there had been a home invasion nearby. 16 According to the police mobile data transmissions paperwork, Berkovits arrived at the Doerbecker residence at 12:20 a.m.

At the direction of Sgt. Stillman, Officers Badolato and Berkovits went to the backyard of the Doerbecker home to secure the rear of the house. Sgt. Stillman also requested, via police radio, that members of BSO respond to the scene because a homeinvasion suspect was holed up in the house. Doerbeckers father came to the front door at roughly 12:45 a.m. Mr. Doerbecker initially said that he did not know if his son was home and expressed displeasure with the police being at his home after midnight without a search warrant. He also indicated that he was a libertarian. Police requested that Mr. Doerbecker ask his son, Kurt Doerbecker, to come to the door. Mr. Doerbeckers response was to slam the door shut. Approximately five minutes later, Mr. Doerbecker returned to the front door and acknowledged that his son Kurt was in the house, but claimed that he was sleeping. Mr. Doerbecker said that he would not force his son to come out. Sgt. Stillman told Mr. Doerbecker that the police needed to speak to Kurt Doerbecker because they believed he had been in a house that he should not have been in. Mr. Doerbecker refused to comply with the requests of the police. At 12:54 a.m., Sgt. Stillman transmitted that Doerbeckers father advised him that Doerbecker would not come out and that the subject (i.e., Doerbecker) was armed with a knife. Officer Adamo told Mr. Doerbecker that they just wanted to talk to Kurt Doerbecker. Mr. Doerbecker responded, Fuck you, you cant come in. Officer Adamo observed a female, who he believed was Doerbeckers mother, come to the front door and ask what was going on. She, too, refused to allow the police inside the home to speak to Kurt Doerbecker.

10

At one point Kurt Doerbecker himself came to the front door wearing a black t-shirt and black shorts. Officer Adamo asked him to come outside so that they could speak to him. Doerbecker responded, Fuck you; get a warrant. I'm not coming out. Sgt. Stillman then told Doerbecker that they would wait outside for him. Doerbeckers response was something like, Bring me lunch. The Doerbecker home is located on the beach, and the area between the rear of the home and the water is almost completely open. The land closest to the house has tall grass. Between the tall grass and the bay is sand. A path runs along the side of, and then from the back of, the house to the water. The rear of the house was comprised mostly of windows, and the officers were concerned that they might be vulnerable to a threat coming from the windows. Both Officers Berkovits and Badolato knew that one of the incidents under investigation was a home invasion with the perpetrator possibly brandishing a weapon. Officers Berkovits and Badolato took cover behind two pillars, located close to the shoreline. Neither officer had his weapon drawn. From their vantage points, both officers observed figures moving inside the Doerbecker house. Other than the flicker of a television, there was minimal light emitted from inside the house. The backyard was dark as there were no outside lights on. Officer Berkovits used the strobe option on his flashlight to illuminate the area. A male, who Officer Berkovits now knows was Doerbeckers father, came out onto the porch at the back of the house and yelled for the flashlight to be turned off. As this was

transpiring, an officer in the front of the house shouted for Mr. Doerbecker to return to the front so that officers could speak with him. Officer Berkovits saw a figure walking back and forth inside the house. Next, Officer Berkovits saw Mr. Doerbecker go toward the front

11

of the house, turning on lights in the house as he moved. Officer Berkovits then lost sight of Mr. Doerbecker. Other units, including members of BSO, arrived. At some point, Sgt. Stillman directed Police Officer Oscar Walters17 to the rear of the Doerbecker residence. He used his flashlight to illuminate the way. As he walked into the backyard, he saw movement and asked whoever was there to identify himself. Officers Berkovits and Badolato identified themselves. Officers Walters, Berkovits, and Badolato each took cover behind separate pillars in the yard. According to the NCPD Serious Incident Time Log, at approximately 1:30 a.m., there were at least fourteen members of the NCPD at or near the Doerbecker home. Approximately 45 minutes had elapsed from their first contact with Mr. Doerbecker. At this point, Sgt. Stillman told Sgt. Jacqueline Lewis from the 4th precinct and Lt. John Kelly from BSO that the home invasion case would be a squad pick-up, meaning that the 4th precinct Detective Squad would either request an arrest warrant or would wait to arrest Doerbecker on another date.18 That information was then passed along to the officers on the scene. Indicating that they understood that the events were coming to an end and the police would soon leave the scene and return to other duties, officers, including Officer Adamo, had moved from the front of the house to an area across the street. At 1:27:41 a.m., just prior to the shooting, Sgt. Stillman requested, via radio, that Officer Badolato meet him at the back of the house. Officer Badolato then left his behind-

17

Officer Walters had heard the description of the home-invasion perpetrator and recalled that the description included that the suspect was a male wearing dark clothing and armed with a weapon, possibly a knife. 18 The decision not to enter the Doerbecker home was legally correct. Except in exigent circumstances, the police are prohibited by Supreme Court precedent from making a nonconsensual entry into a persons home to arrest him, unless the police have an arrest warrant. Payton v. New York, 445 U.S. 573 (1980).

12

the-pillar position and walked closer to the back of the house to meet Sgt. Stillman on the pathway. Officers Berkovits and Walters remained in the backyard.19 At 1:27:57 a.m., Officer Berokovits transmitted over the police radio that there was movement on the second floor of the house. Officer Badolato saw the lights on the first floor of the house go on and heard a male voice say, You have to speak with them. A second male responded, in an agitated manner, Fine, I will go. I will fucking go, give me a minute. Officer Badolato then saw Sgt. Stillman walk towards the front of the house and the lights in the house go off. Approximately 15 seconds later, Officer Badolato heard what sounded like rustling and a window being opened. Officer Badolato was no longer behind the pillar near the water; he was still close to the rear of the house near the path where he had been speaking to Sgt. Stillman. Officer Badolato drew his weapon and his flashlight. Suddenly the upper portion of a man, now known to be Kurt Doerbecker, emerged from the just-opened window. Officer Badolato immediately stated, Do not move, show me your hands.20 Fearing for his safety, Officer Badolato then tried to take cover behind an outdoor shower near the house. Doerbecker came out of the window, jumped up, and swung his hand at Officer Badolato. According to Officer Badolato, Doerbecker was within five feet of him. Officer Badolato swung back at Doerbecker but did not make contact. As Officer Badolato swung his hand, Doerbecker began to run. Officer Badolato holstered his weapon and began what he believed would be a foot pursuit by running after Doerbecker.

19

Officer Berkovits states he could not hear the substance of the conversation between Sgt. Stillman and Officer Badolato. 20 According to Officer Badolato, the initial commands he gave to Doerbecker were purposefully loud to ensure that Officers Berkovits and Walters would hear him and know that someone, not NCPD, had emerged from the house. Both Officers Berkovits and Walters state that they heard Officer Badolatos commands, as did NCPD members who were positioned in the front of the house.

13

When Officer Berkovits heard Officer Badolatos commands, Officer Berkovits emerged from behind his pillar and began to make his way towards the path. Once he reached the path, Officer Berkovits used his flashlight to illuminate the area. He could then see that Doerbecker had a bandanna covering his face and that he was wearing dark colored clothing. Officer Walters also recalls that Doerbecker was dressed in dark clothing and had his face covered with a handkerchief, with only his eyes visible. Officer Berkovits observed a shiny and bright knife in what he believes was Doerbeckers left hand and recalled the radio notification for the knife-wielding perpetrator of the home invasion. Doerbecker ran at full speed towards Officer Berkovits until the two were face-toface. Officer Walters recalls that Doerbecker came straight down the path until he was directly in front of Officer Berkovits. Officer Berkovits then began to retreat. Officer Berkovits was looking towards the house, and was face-to-face with Doerbecker, who was running away from the home in the direction of the shoreline. While Doerbecker had his arm raised over his head with a lightreflecting object in his hand, Officer Berkovits yelled multiple times for Doerbecker to stop. Officer Berkovits does not recall unholstering his weapon, but does remember holding the gun with one hand and pointing it at Doerbecker while his other hand held his flashlight. Officer Walters observed Officer Berkovits with his gun drawn and holding his flashlight, yelling, Stop, Stop! Officer Walters observed Doerbecker, with his arm in the air holding an object that appeared to be a knife, charging at Officer Berkovits. Officer Walters recalls that, as Doerbecker ran towards Officer Berkovits, a shot was fired. Officer Berkovits continued to retreat until he fell into a seated position on the sand. As he fell, an additional shot was fired and Doerbecker suddenly veered east towards

14

Officer Walters. Just after the second shot was fired, Doerbecker appeared to flinch, then charged towards Officer Walters. Officer Walters did not have his weapon drawn initially, but drew it as Doerbecker began to charge him. Officer Berkovits observed that Doerbecker still had his hand above his head and could see that he was still holding the knife in his hand as Doerbecker ran towards Officer Walters. Officer Berkovits remembers thinking that he had a clear shot at Doerbecker. Officer Walters acknowledges that he was about to pull the trigger of his own gun when he heard Officer Berkovitss third and final shot. After the last shot, Officer Berkovits saw Doerbecker drop to the ground. Officers Badolato, Berkovits, and Walters saw a knife (later recovered by Detective Jeanette Nardo) on the ground next to Doerbeckers body. Officer Berkovits recalls the knife had a twelve-inch blade and a white handle.21 He also observed blood and that Doerbecker had been struck by a bullet. From the location of the home-invasion, Officer Delaney heard the shots. Officers in front of the Doerbecker house, as well as others who were near the Buoy Bar or had established a perimeter near the house, heard yelling followed by several shots. 22 More specifically, Officer Adamo heard a male voice shouting, Police, dont move! Sgt.

Stillman recalls hearing, Police, dont move! Get on the ground! Drop it! Officer Miller

21

A photograph of the knife, positioned next to a ruler, shows the knife (including its handle) to have a length of just over twelve inches. The blade alone measures slightly less than seven inches. 22 Although there was a lack of uniformity among the officers at the scene as to how many shots they heard, the NCDA has determined that three shots were fired. While some officers cannot recall the number of shots, no one recalls more than four shots. While Officer Berkovits believes he fired two shots (one before and one after Doerbecker began charging at Officer Walters), he remembers actually pulling the trigger only one time. Officer Badolato recalls hearing four shots. BSO Sgt. Herman believes he heard three shots. Officer Adamo recalls hearing three, or possibly four, shots. After extensive searching in the backyard, three shell casings were located. Officer Berkovitss gun had a magazine with a twelve-bullet capacity. When examined by the Westchester Police Department, there were nine bullets in the cartridge. There is no suggestion that anyone other than Officer Berkovits fired a weapon during this incident.

15

and Officer Baretti both heard, Police, dont move! yelled twice. From outside of her house, bar-owner R heard what, from previous hunting experience, she knew to be shots. Immediately prior to the shots, she recalls hearing a lot of screaming. Shots fired was first transmitted over the police radio system at 1:30:23 a.m. and all weapons were holstered. Members of BSO and Emergency Services Unit (ESU) began entering the backyard, where the shots had come from. Seconds after the shots were fired, all of the lights in the house went off. Officer Berkovits does not remember getting up from the sand, but he remembers his weapon being drawn and Doerbecker not moving. Berkovits looked at Officer Walters, who holstered his weapon. Officer Badolato described Berkovits as petrified and white as could be after the shooting. Both Officers Walters and Badolato indicated that they did not speak to Officer Berkovits about what had just transpired. Sgt. Stillman came to the backyard from the front of the house and ordered Officer Berkovits to holster his weapon. Officers Berkovits and Badolato, visibly shaken, came out of the backyard together.23 Officer Walters, also visibly shaken, emerged from the backyard separately and initially took cover behind a police vehicle near the front of the Doerbecker house with other officers, including Officer Adamo, Officer Miller, Officer Gregory Caserta, and Sgt. Lewis. At approximately 2:06 a.m., Officers Berkovits, Badolato, and Walters were

evacuated from the scene via ambulance. All of the officers in front of the house took cover while the Doerbecker family stayed in the house. Officers Adamo and Caserta saw a second-floor window opening on the front of the residence.

23

Sgt. Herman described the uniformed officers emerging from behind the house as solemn and not speaking.

16

Members of the NCPD who were interviewed virtually all indicated a serious safety concern at this juncture in light of the gunfire, the unknown number of occupants in the house, the sudden and complete darkness of the house, and the earlier repeated statements of Mr. Doerbecker that there were firearms inside the home. Officers took cover in various positions around the house. Approximately five minutes after the shooting, Doerbeckers father came out of the house. There were several BSO officers who had remained at a distance from the house and had not been involved in the negotiations with the Doerbeckers or the activities in the backyard. BSO Sgt. John Herman24 was near a neighbors house at the time and had heard shouting and shots. Sgt. Herman ran to the side of the Doerbecker house where he observed Mr. Doerbecker yelling. Mr. Doerbecker asked Sgt. Herman what had happened. Sgt. Herman recalls responding, Shots were fired and I believe your son is injured. Sgt. Herman described Mr. Doerbeckers behavior as extremely belligerent at this time. Sgt. Herman recalls Mr. Doerbecker saying that he was a sovereign nation and a libertarian, and that (as he had previously told Officer Carlson) he had rifles in the house. Mr. Doerbecker then went back into the house and the lights in the house went off. Officer Caserta then saw someone open the window at the front of the house and peek through the blinds. BSO and ESU used the spotlights on their trucks to light up the house. Multiple officers reported windows in the house opening and closing after the shots had been fired. Mr. Doerbeckers behavior was described by Sgt. Lewis as belligerent and uncooperative. Lt. Kelly contacted a hostage negotiator.

24

Sgt. Herman received the call to respond to Point Lookout at approximately 12:55 a.m. He believes there were other members of BSO and ESU near the scene who were not directly involved in the events.

17

Because of Mr. Doerbeckers belligerence, the repeated plunging of the house into darkness, and the purported presence of rifles, the police determined that they had to take action to secure the house and ensure the safety of all officers and civilians involved before commencing any further investigation or tending to Doerbeckers body. Sgt. Herman and Lt. Kelly verbally requested that everyone come out of the house so that NCPD could check the backyard. Sgt. Herman heard Mr. Doerbecker say, If my son has been shot, we will handle it in court.25 BSO officers moved a police truck from up the block to the portion of the street directly in front of the residence to provide cover and set up a perimeter while they tried to get the Doerbecker family out of the house. Just prior to 2:30 a.m., Mr. and Mrs. Doerbecker came out of the house onto the stoop. According to Officer Gibbons, Mr. Doerbecker said that he was going back into the house at 2:30 a.m. and he wanted everything wrapped up by then, i.e., within mere minutes. Mr. Doerbecker further told police that they had until 2:30 a.m. to go into the backyard. In order to gain control of the situation and minimize the risk of further bloodshed, the police decided to create a diversion on the west side of the stoop while Mr. and Mrs. Doerbecker were still outside, and then have two officers obtain physical custody of them. In order to do so, members of BSO dropped at least one helmet. Then two uniformed officers

physically seized both Mr. and Mrs. Doerbecker and placed them into separate patrol cars. Understanding that there were still at least two additional people (Doerbeckers brother and grandmother) in the house, Officer Carlson and Sgt. Herman, both clad in full gear and helmets, entered the home. When Officer Carlson told Doerbeckers brother that there was an incident with Doerbecker, his brother responded, not again, and then left the
25

As noted, the Doerbecker family has declined to be interviewed for this investigation. During this immediate post-shooting activity, it is unclear (beyond Sgt. Hermans remark) what the Doerbecker family knew or believed about their sons condition.

18

home without difficulty. Doerbeckers elderly grandmother was permitted to remain in the house. At approximately 2:45 a.m., AMT Brian Ferrucci, Jr., pronounced Doerbecker dead. Shortly thereafter, Detective Brosnan of the Homicide Squad informed Mr. and Mrs. Doerbecker that their son was dead. Mr. Doerbecker initially had no reaction. Mrs.

Doerbecker began to scream and did so for quite some time. She also stated, All he did was jump out a bedroom window. At some point Mr. Doerbecker yelled at the officers, You have been bullies all your life, liars, all your life. He then unsuccessfully attempted to bypass the crime scene tape and gain reentry to his house. IV. INVESTIGATION BY CRIME SCENE DETECTIVES Detective Jeannette Nardo of the Crime Scene Search Section (CSSS) of the NCPD was notified of the situation at approximately 2:35 a.m. by Det. Robert Nill of the 4th precinct Detective Squad. Det. Sgt. Joseph Aquilina, Det. Nardo, and Det. Brian Bunster met at the scene, which was already taped off, at approximately 3:55 a.m. Det. Nardo walked down the path of the house towards the beach. There was very little lighting (all CSSS detectives described the beach behind the house as very dark), but Doerbeckers body was visible on the sand. There was a hat and a knife with a white handle near the body. At least one uniformed officer was standing in the backyard guarding the scene. Detective Nardo videotaped and photographed the area. In both the video and the photographs, a baseball hat and a knife with a white handle can be seen in close proximity to Doerbeckers body. A bandanna tied around Doerbeckers neck is also visible. Detective Nardo placed cones on the sand near items of interest and additional photographs were taken. No bullets were recovered from the sandy area, but three spent shell casings were

19

recovered and invoiced. Members of CSSS used a metal detector, a shovel, and a sifting screen in an attempt to locate additional ballistics evidence in the sand. They did not recover anything else. As the sun began to rise, Sgt. Aquilina noticed that there was a hole in a rear window of the home immediately next to the Doerbecker house. Members of the CSSS unit entered that neighboring residence and recovered a bullet from a baseboard in the dining room. (At the time, no one was home at the residence where the bullet was recovered.) Det. Richard Rinaldi of the CSSS took measurements and prepared a diagram of the scene. Later, after the police had secured a search warrant, Det. Rinaldi prepared a sketch of Doerbeckers bedroom. A representative from the Medical Examiners officer arrived at the scene shortly after CSSS and photographed Doerbeckers body. Det. Bunster then responded, at Sgt. Aquilinas direction, to the location of the earlier home invasion. Det. Bunster met with the homeowner, A, took photographs, and examined the crime scene. Det. Bunster determined that the intruder had gone into a room and opened the drawers to the dresser and thrown a game console on the floor. V. THE SEARCH WARRANT On August 30, 2011, Detective James Hendry26 requested a warrant to search the Doerbecker home for evidence connected to the burglary that had occurred at As residence. The search warrant, signed by Honorable Joseph Calabrese at approximately 3:44 p.m., stated that Hendrys affidavit established probable cause to believe that certain property is unlawfully possessed . . . or constitutes evidence or tends to demonstrate that an offense was

26

Det. James Hendry, Homicide Squad, was the affiant on the search warrant and assisted in its execution.

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committed, or that a person . . . participated in the commission of . . . Burglary and therefore authorized a search of the Doerbecker residence. After learning that the search warrant had been signed, Sgt. Aquilina, Det. Nardo, and Det. Bunster returned to the scene to assist in its execution. Det. Nardo entered the home of the deceased and observed and photographed a block set of knives on the counter in the kitchen. Some of the knives in the knife block, like the knife recovered near

Doerbeckers body, had a white enamel-type handle and were the same size, shape, and design. Det. Nardo observed that one knife was missing from the set. The entire wooden butcher block, which contained eleven assorted knives and one pair of scissors, was collected. Doerbeckers bedroom, in the basement of the home, was searched. Under a

mattress, Detectives Nardo and Hendry found wet clothing, including a green jacket, camouflage pants with a belt, a white bandanna, and brown boots. The incongruous

location of the wet clothing suggested that it had been placed there in an effort to hide it. Other items taken from Doerbeckers bedroom included an Ace bandage, a lighter, a small smoking pipe, and a set of keys. The bedroom and seized items were photographed. VI. AUTOPSY FINDINGS An autopsy was performed on the body of Kurt Albert Doerbecker on August 30, 2011, by Dr. Brian OReilly of the Nassau County Medical Examiners Office. 27 Dr. OReilly determined that the cause of death was a penetrating gunshot wound to the head with perforation of the brain. The external examination of the body revealed that a single bullet had penetrated the rear of Doerbeckers head with no obvious exit wound. The entrance wound shows no stippling (i.e., spotting, speckling, dotting), gunpowder residue,
27

NCPD Homicide Detective Robert Dipietro was present at the autopsy.

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burns, or barrel impressions.28 The direction of the wound is from back to front, slightly right to left and slightly upwards. A bullet was recovered and noted to consist of a

deformed, partially copper-jacketed, grey metal bullet marked at the base with the letters O/D. It was placed into a labeled container, sealed, and transferred to the Nassau County Police Department. Dr. OReilly noted that Doerbecker was wearing a blue and white bandanna around his neck. A small pocket knife was recovered from the right pocket of the shorts

Doerbecker was wearing. While there was no additional trauma noted to Doerbeckers body, a two-centimeter superficial red-tan abrasion on the dorsal aspect of the right hand and a one-centimeter oval red-tan superficial abrasion was noted over the left elbow. The autopsy report indicates that Doerbecker had a blood alcohol level of 0.08%. VII. BALLISTICS Detective Scott Kovar of the NCPD Evidence Management Unit delivered the following ballistic evidence29 (assigned NCPD case number 11CR0066602 and Firearms number 11-0523) to the Westchester Police Department: Item #1: Item #2: Item #3: Item #5: Item #10: Item #12: Item #13: .40 caliber S&W Speer WP discharged cartridge casing; .40 caliber discharged cartridge casing; .40 caliber discharged cartridge casing; .40 caliber deformed C/J bullet, 141.0 GRS, 6/R;30 .40 caliber C/J bullet, 141.0 GRS, ?/R (from the morgue); a magazine marked FS # 523 T-12; and 9 S&W .40 caliber Speer, WP CJ-HP cartridges described as ammo with gun.
28

The absence of these factors indicates that the gunshot wound was not inflicted at close range and is thus consistent with Officers Berkovits, Walters, and Badolatos description of events. 29 Non-ballistic evidence was retained by the Property Bureau of the NCPD. 30 This item was recovered from the dining room baseboard inside a home next to the Doerbecker residence.

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In addition to the above items, Officer Berkovitss .40 S&W caliber Sig/Sauer # AGU00360 handgun was given to the Westchester Police Department. Detectives Frank M. Nicolosi and Anthony S. Tota, both senior firearms examiners with the Westchester Police Department, performed ballistics examinations and tests. Their examinations concluded that Officer Berkovitss weapon was operable and that items 1-3 and 5 and 10 were all fired from that weapon. VIII. LEGAL ANALYSIS It is uncontroverted that Police Officer Berkovits used deadly physical force against Kurt Doerbecker and thereby caused his death. In any possible criminal prosecution, the central issue would be whether that deadly physical force was justified. Once a justification defense is raised, the burden of proof rests with the People to prove, beyond a reasonable doubt, that the individual who used a weapon was not justified in the use of deadly physical force.31 Specifically, the People would have to demonstrate beyond a reasonable doubt that Officer Berkovits did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary. People v. Umali, 10 N.Y.3d 417, 424-26 (2008). As detailed below, the evidence uncovered during the NCDAs investigation demonstrates that the People could not remotely meet that burden. The defense of justification is set forth in Article 35 of the Penal Law. In relevant part, subdivision 1 of PL 35.15 provides that: A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person
31

Justification is a defense, rather than an affirmative defense. PL 35.00. Accordingly, the burden is on the People to disprove such a defense beyond a reasonable doubt. PL 25.00(1); People v. Steele, 26 N.Y.2d 526, 528-29 (1970); People v. Forbes, 75 A.D.3d 608 (2d Dept. 2010).

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from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person. Subdivision 2 of that section further provides that: A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to [PL] section 35.30 [police officer making arrest or preventing escape]. Deadly physical force is defined in PL 10.00(11) as physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury. Therefore, a person may use deadly physical force upon another individual when, and to the extent that, he or she reasonably believes it to be necessary to defend himself or herself, or a third person, from what he or she reasonably believes to be the use or imminent use of unlawful deadly physical force by such individual. As noted, although in most cases an actor claiming justification has a duty to retreat (rather than confront and oppose deadly physical force), such a duty exists only if the actor knows that with complete personal safety, to oneself and others, he or she may avoid the necessity of [using deadly physical force] by retreating. PL 35.15(2)(a). Further, as provided in PL 35.15(2)(a)(ii), a police officer attempting to make an arrest has no duty whatsoever to retreat. The totality of the evidence supports the conclusion that the shooting of Kurt Albert Doerbecker was legally justified. When Officer Berkovits intentionally used deadly

24

physical force against Doerbecker, he acted upon a reasonable belief that Doerbecker was armed with a knife and was about to use deadly physical force against Officers Walters, Berkovits, and Badolato. PL 10.00(13) defines a dangerous instrument as any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury. A large, raised knife, held by a charging man, certainly fits that definition. Further, courts have repeatedly held that the use of a knife constitutes the use of deadly physical force as a matter of law. See, e.g., In re Crystal S., 74 A.D.3d 823, 825 (2d Dept. 2010); People v. Terrero, 31 A.D.3d 672, 672-73 (2d Dept. 2006); People v. Mothon, 284 A.D.2d 568, 569 (3d Dept. 2001); People v. Steele, 19 A.D.3d 175, 17576 (1st Dept. 2005); People v. Davis, 118 A.D.2d 206, 209 (4th Dept. 1986). The facts here clearly demonstrate that the knife that Doerbecker was holding, and which was found on the ground next to his body, was being used as a dangerous instrument readily capable of causing death or other serious physical injury. After trying to strike Officer Walters, Doerbecker grasped the knife by the handle and held it up above his head in a menacing manner. He then ran at two other officers and repeatedly ignored police orders to stop, show his hands, and drop the weapon. Additionally, Officer Berkovits would be permitted to introduce evidence of Doerbeckers violent and threatening actions throughout the night, of which he had knowledge, in order to establish his state of mind and perception of imminent danger. People v. Wesley, 76 N.Y.2d 555, 559-61 (1990); People v. Locicero, 87 A.D.3d 1163 (2d Dept. 2011). Moreover, a proper evaluation of the actor's belief requires a determination of

25

reasonableness that is both subjective and objective . . . . The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude. People v. DiGuglielmo, 75 A.D.3d 206, 21516 (2d Dept. 2010) (citation omitted), affd 17 N.Y.3d 771 (2011); see People v. Goetz, 68 N.Y.2d 96, 114 (1986); People v. Daniel, 35 A.D.3d 877, 878 (2d Dept. 2006); People v. Torres, 252 A.D.2d 60, 65 (1st Dept. 1999). The determination of whether Officer

Berkovitss fear of imminent deadly physical force was reasonable must be based specifically on the circumstances that he faced at that precise moment without the benefits of retrospection. People v. Goetz, 68 N.Y.2d at 114-15; People v. Locicero, 87 A.D.3d at 1164. From the perspective of Officer Berkovits, Doerbecker was a potentially violent individual, who was armed with a weapon, who had punched a patron at a nearby bar and then threatened to stab that patron, and who had menaced a homeowner with a sharp object in a home invasion. Officer Berkovits also knew that people in Doerbeckers community regarded him as a 10-62, or a mentally unstable person. Moreover, Officer Berkovits was aware that Doerbecker was not willing to speak to the police voluntarily as they had requested, and that he had instead climbed out of a back window and attempted to flee into the dark backyard. Upon climbing out of that window, Doerbecker first physically

threatened Officer Badolato. Ignoring numerous verbal commands to stop prior to any shots being fired, Doerbecker, with a knife in his hands, charged at Officer Berkovits, and then at Officer Walters, both times in a threatening manner, thereby causing Officer Berkovits to fire his weapon.

26

Moreover, when the standards outlined above are applied to the specific facts uncovered by the NCDAs investigation, it becomes readily apparent that it would not be possible to prove beyond a reasonable doubt that Officer Berkovits knew that he could retreat with complete personal safety not only to himself, but also to Officer Walters. Indeed, in a dark backyard, Doerbecker was brandishing a large knife in a threatening fashion, charging towards Officer Walters, and ignoring repeated orders to stop. Retreat was simply not a reasonable option. Furthermore, because they were attempting to make an arrest, retreat (even if it were a reasonable option) was not required. The officers here had probable cause to believe that Doerbecker had committed a crime earlier that evening, namely, the home invasion at As home.32 While the police did not try to enter the Doerbecker residence forcibly without a warrant, once Doerbecker climbed out the window, he was unquestionably subject to arrest for that serious crime. IX. CONCLUSION The accounts given by Officers Berkovits, Walters, and Badolato are consistent and credible in describing the events that led up to and caused Officer Berkovits to discharge his weapon. Their statements are also consistent with the physical evidence that has been obtained, and they are further consistent with what was overheard by others not in the backyard. The NCDA is unaware of any evidence that contradicts or impeaches the version of events described by the officers. Thus, there is no significant factual dispute requiring consideration by a Grand Jury. The facts presented in this report clearly establish that the use of deadly physical force against Kurt Doerbecker was entirely justified. Therefore, the
32

The police demonstrated that they had probable cause to believe that Doerbecker committed the burglary when they sought a search warrant from a County Court judge, who issued the warrant precisely on the ground that probable cause existed to believe that evidence of a burglary might be found in the Doerbecker residence.

27

investigation into the death of Kurt Albert Doerbecker is now being closed and no criminal charges will be sought by the NCDA.

28