Murder charges over child’s death remain | News, sports, jobs

OBSERVER Photo by Gregory Bacon Ashley Bertino is returned to the county jail by Sheriff Deputies after a preliminary hearing in Silver Creek allowed the murder charge against her to remain.

SILVER CREEK – Ashley Bertino remains behind bars after the death of her 12-year-old daughter last spring.

On Friday, Acting Hanover Town Judge Christopher Penfold ruled that the prosecution had presented sufficient evidence to allow the second-degree murder charge against the 36-year-old Silver Creek mother to proceed.

His decision came after a two-day preliminary hearing in Hanover District Court, where prosecutors brought a total of eight people to testify.

WITNESSES TESTIFY IN COURT

On Thursday, Mya’s school bus driver, the former dean of students at Silver Creek Central School, the county’s chief medical examiner, the county coroner who responded to the scene, and a nurse from Silver Creek Pediatric all testified on behalf of the prosecution.

Two more people testified Friday.

The first was Jennifer Johnson. She is the registered nurse at Silver Creek Central School.

Johnson noted that she had known Mya and her twin sister since kindergarten. Later she also met their younger brother when he went to school.

Johnson noted that Mya frequently visited the nurse’s office because her clothes did not fit, her undergarments had been soiled, and sometimes she was not wearing any.

Johnson said Mya’s mother Ashley Bertino did not want Mya to visit the nurse’s office. ‘She didn’t like us’ Johnson said.

When asked to describe Mya’s appearance in the last year of her life, Johnson said that Mya’s hair appeared to have never been brushed and that she had bad body odor. ‘She looked unhealthy’ Johnson said.

The last day Mya was at school, she complained that she had a stomach ache and was gagging.

Johnson’s husband is the Silver Creek school resource officer. She said when they heard about the emergency call to Mya’s home at 23 Oak St. around 6:45 p.m., she and her husband went to the scene.

Johnson said Mya’s younger brother was in tears and said he thought Mya was dead when he hugged her husband.

Mya’s sister showed no emotion, but Johnson said she did “Maybe he was in shock.”

When Mya was placed in the ambulance, Johnson said she did not see Bertino.

After Johnson spoke, Sheriff’s Office investigator Eric Vara was brought to the witness stand.

He was called to Brooks Hospital after Mya was taken there the night she died.

Vara said he and his partner had a 30-minute conversation with Bertino to find out what happened from her perspective. Bertino’s Miranda rights were not read to her. ‘It was just fact-finding’ he said.

After the two witnesses Friday, both the prosecution and defense made closing arguments.

First Assistant District Attorney Jeffrey DiPalma noted that this was not a trial; it is a preliminary hearing in which the prosecutor must appear “reasonable reason” for the indictment.

DiPalma said he believes the prosecution has established that Bertino was showing “depraved indifference” at the death of her daughter. “This is no ordinary indifference. This shocks the conscience of the normal person,” he said.

DiPalma claimed that Bertino “I failed to get medical help until it was too late.” Mya died of diabetic ketoacidosis, a complication of untreated diabetes.

Assistant District Attorney Andrew Brautigam noted Mya’s death “was a tragedy” but argued that the prosecutor could not prove that his client had done anything criminal.

After closing arguments, Penfold orally reviewed testimony from all eight people who spoke and noted that the defense refused to bring witnesses to the stand.

After ruling that the second-degree murder charge can remain, Penfold noted that the case will move to the grand jury and Bertino will be remanded to the county jail without bail.

Penfold added that this was a very emotional preliminary hearing. “In my 24 years in court, this is by far the most serious case I have ever heard.” he said.

NEXT STEPS

After the hearing, District Attorney Jason Schmidt discussed the next steps in the case. He said they will still take the case to the grand jury, where additional charges are possible. That is expected in December.

Once the Grand Jury process is completed and the District Attorney’s Office receives an indictment, Bertino will be arraigned and then her bail status will be reviewed by the County Court judge.

After that, Schmidt said the case will move to the case “discovery” phase, during which evidence is collected and shared with the defense. Once the legal challenges regarding evidence are resolved, it can go to trial.

But Schmidt does not expect a trial anytime soon. “Given the severity of this, looking through the timeline, I don’t expect to see this on our trial calendar here until sometime towards August of next year, and that may even be ambitious,” he said.

While Penfold ordered Bertino held in jail without bail, Schmidt said the district court judge could review her status at any time, following a request from the defense.

Schmidt thanked everyone who testified at the preliminary hearing and said it was clear the community was doing its best to help Mya. “It’s shocking to me that here we are in 2024 and you have an entire community … trying to provide this mother with resources to help care for her own children. And this mother chose to decline this offered help,” he said.

Schmidt said Bertino should be held accountable for her actions. “It’s just a shock to me. This is a preventable death. … The entire school district lived up to its responsibility. The only person who is supposed to have the legal obligation, the moral responsibility to do something about it, did nothing, until it was far too late. It cannot go unanswered. These types of actions cannot last,” he said.