ORANGE COUNTY DISTRICT ATTORNEYS PRESS RELEASE, 7-10-12

The Orange County Grand Jury has determined that Newburgh City Police Officers Eric Henderson and Nicholas Cardinale were justified, pursuant to Article 35 of the Penal Law, in using deadly physical force when they shot Michael Lembhard to death on March 7, 2012. No criminal charges will be filed against either of the police officers and a No True Bill of Indictment was filed on July 10, 2012 in Orange County Court. We will not be holding a press conference to discuss this case. To hold a press

conference necessarily requires a question and answer period. In an uncontrolled setting the District Attorney could inadvertently disclose Grand Jury testimony. It is a crime to disclose such testimony. The District Attorney has a legal and ethical duty to fully and fairly present evidence to a Grand Jury made up of 23 citizens of Orange County. It is those 23 citizens, not the

prosecutor, who determine whether or not to file criminal charges. Many people are not familiar with Grand Jury proceedings. Each year 276 of our citizens serve on 12 separate grand juries. Each of the 23 Grand Jurors is chosen at random by a County Court judge. A Grand Jury proceeding is not the same as a trial and there are several significant differences between a Grand Jury and a trial jury. At the time Grand Jurors are selected they cannot be questioned by the District Attorney. They cannot be challenged or excused by the District Attorney. Trial jurors are extensively questioned and can be excused.

During the presentation of a case Grand Jurors can ask questions of the witnesses and of the prosecutor. Trial jurors cannot ask questions.

The District Attorney cannot make either an opening statement or a summation to the Grand Jury as he does at a trial.

The Grand Jury requires a lesser burden of proof to return an indictment. It does not have the higher burden of proof beyond a reasonable doubt that is required at trial.

To return an indictment only 12 of the 23 members of a Grand Jury must agree. A trial jury verdict requires the unanimous agreement of all 12 jurors.

Grand Jury proceedings are secret. Neither the District Attorney nor any Grand Juror can disclose the testimony or deliberations. It is a felony to do so. Trial jurors can discuss all aspects of the trial, including their deliberations, after they have reached a verdict.

The Grand Jury is an independent body.

It does not work for the District

Attorney or the police. Any prosecutor who might attempt to impair the integrity of the Grand Jury would himself face penalties.

It is the policy of the Orange County District Attorneys Office in any police officer involved shooting, whether or not it results in a fatality, to present such a case to the Grand Jury. The Grand Jury, not the District Attorney, is charged with the responsibility of reviewing evidence and making the determination of whether the police officers use of deadly physical force was justified, or, in the alternative, should result in criminal charges being filed against the police.

The Grand Jury has concluded its investigation and returned a No True Bill as to Police Officers Henderson and Cardinale. This means that the Grand Jury has found the officers

actions in using deadly physical force against Michael Lembhard was justified by Article 35 of the Penal Law and that they acted in self-defense. The Grand Jury determined that no criminal charges against the officers are warranted after an extensive examination of the evidence.

This Grand Jury met on six dates and heard testimony from twenty-four witnesses. These included civilians, police officers, and expert witnesses. They also reviewed ninety-six exhibits of evidence presented to them during the proceedings. Grand Jury proceedings, by law, are secret. The investigation into the death of Michael Lembhard, conducted and

developed outside the Grand Jury process, is not bound by any such rule of secrecy.

The following is a synopsis of the evidence obtained in the course of the District Attorneys investigation. It is not a synopsis or summary of the Grand Jury testimony. The information that follows comes from our review of police reports, court documents, lab reports and interviews of witnesses.

On March 7, 2012, at approximately 11:30 p.m., four members of the City of Newburgh Police Departments anti-crime unit were patrolling on Liberty Street, in the City of Newburgh. They were in an unmarked SUV in plain clothes wearing vests that were marked Police. One of the duties of the anti-crime unit is to apprehend individuals who are wanted on arrest and/or bench warrants issued by a court. While on Liberty Street, the

officers observed Michael Lembhard on the landing outside of a house at 55 Liberty Street. All of the officers were familiar with Michael Lembhard and knew that he had several outstanding warrants: one arrest warrant for threatening his girlfriend with a knife, and four bench warrants for failure to appear in court on 10 different criminal charges. Upon observing Mr. Lembhard, the officers stopped their Chevy Tahoe. Two of them, Rola and Henderson, immediately pursued Michael Lembhard who entered the residence at 55 Liberty Street. A third officer radioed police headquarters to

advise that they were in a foot pursuit of Michael Lembhard. The first officer to get to the front door, P.O. Eric Henderson, kicked in the front door and entered the residence followed closely by Police Officer Brandon Rola. The Criminal

Procedure Law, Sections 120.80 and 530.70, permits the police to use reasonable physical force and enter into premises to execute arrest warrants and bench warrants. The first floor of 55 Liberty Street was a single 24 x 15 room used as both a kitchen and living room. There was no

separation between the areas; it was a single open area immediately accessible upon entering through the front door. Once inside the residence, Michael Lembhard ran into the kitchen area of the room. He then engaged in a physical struggle

with Officer Henderson who was attempting to place Lembhard under arrest. Officer Henderson was able to wrestle Michael

Lembhard to the floor of the kitchen area. Officers Henderson and Rola then attempted to pull Michael Lembhards hands out from under his body so that they could handcuff him. As Officer Rola lifted Michael Lembhards left side, Lembhard swung at him with a large kitchen knife that he had in his hand. Rola immediately yelled knife, and he and Officer

Henderson released Lembhard out of fear of being stabbed by Lembhard. Michael Lembhard then quickly moved from the kitchen area into the adjoining living room area of the one open room where he then held the large knife to his own throat. He was positioned approximately eight to 10 feet from Officer Cardinale who had entered the residence shortly after Henderson and Rola. All three officers were pointing their guns at Mr. Lembhard. Officers Henderson and Rola were positioned in the kitchen area of the room slightly behind Lembhard and Officer Cardinale was positioned at the opposite corner of the room near the entry door. The officers repeatedly commanded Michael Lembhard to drop the knife; he refused, yelling at the officers that he was going to kill himself and that they should shoot him. Lembhard continued holding the knife to his own throat.

At this point Officer Giudice entered the residence and was positioned near Officer Cardinale close to the front door. He was armed with a taser. He did not believe that he had a clear shot at Michael Lembhard with the taser. Giudice also did not know if the electrical shock from utilizing the taser could cause Michael Lembhard to stab himself in the throat. Therefore, Giudice did not fire his taser. After a short period of time Michael Lembhard yelled, fuck it. He charged directly at Officer Cardinale while pointing the Police Officer Giudice was in the

knife towards Cardinale.

entryway near Cardinale. Cardinale was facing Lembhard when he opened fire. Henderson was behind Lembhard when he fired almost simultaneously. In a matter of several seconds both Officers Cardinale and Henderson each fired eight shots from their semi-automatic handguns. Each gun was loaded with 13 rounds of ammunition. Michael Lembhard was struck by 13 of the 16 shots fired by the two officers. Mobile Life was called to the scene and transported Michael Lembhard to St. Lukes Hospital where he was pronounced dead. The total time that elapsed, from the first radio call to headquarters advising that they observed Mr. Lembhard outside

the house, until the shots were fired, was approximately four minutes. An autopsy was performed by the Orange County Medical Examiner. The autopsy revealed that Michael Lembhard was

struck in the front, left side, and back by the shots fired at him. Three of the shots caused a total of nine wounds. These three bullets all entered Mr. Lembhards arm, exited the arm, and reentered his torso. Officer Cardinale fired from almost a face-to-face position and Officer Henderson fired from a position behind Mr. Lembhard. Blood samples were taken from the body and sent to a lab for toxicological testing. The results showed that at the time of his death Michael Lembhard had a substantial level of Delta-9 THC (the active ingredient of Marijuana) and also a substantial level of Phencyclidine (known as Angel Dust or PCP) in his blood. The residence at 55 Liberty Street was processed by members of the City of Newburgh Police Department Crime Scene Unit along with the New York State Police Forensic Identification Unit. In the living room area, a large kitchen knife was recovered and sent to the New York State Police Laboratory in Albany for further examination. A palm print and two fingerprints were

found on the knife. These were compared to the known prints of Michael Lembhard and determined to be a match.

We note that family members recovered items of evidence that were missed by the police. These were turned over to law enforcement and processed as evidence.

Michael Lembhards death was tragic. The Grand Jury has concluded a full investigation and determined that no criminal charges be filed against the police officers who shot him. Any questions regarding the duty status of these police officers should be directed to the City of Newburgh. As noted initially, the District Attorney will not be answering questions from the press on this case. The Grand Jury heard much more detailed and extensive testimony in this case. We cannot, by law, disclose the testimony or any other aspect of the Grand Jurys inquiry. We are satisfied that all of the evidence in this case was fully and fairly presented to the Grand Jury.