Ashley Bertino is taken by Sheriff Deputies back to the county jail after a preliminary hearing in Silver Creek permitted the murder charge against her to remain. P-J photo by Gregory Bacon

SILVER CREEK – Ashley Bertino will stay behind bars following the death of her 12-year-old daughter last spring.

On Friday, Acting Hanover Town Judge Christopher Penfold ruled the prosecution established enough evidence for the second-degree murder charge against the 36-year-old Silver Creek mother to remain.

His decision came following a two-day preliminary hearing in Hanover Town Court, where the District Attorney’s Office had eight people in total testify.

WITNESSES TESTIFY IN COURT

Thursday, Mya’s school bus driver, the former Silver Creek Central School Dean of Students, 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 on Friday.

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

Johnson noted that she had known Mya and her twin sister since kindergarten. She later got to know their younger brother as well when he began school.

Johnson noted that Mya frequently visited the nurse’s office because her clothes didn’t fit, had soiled her undergarments, and sometimes didn’t wear any.

Johnson said Mya’s mother Ashley Bertino didn’t want Mya visiting the nurse’s office. “She didn’t like us,” Johnson said.

When Johnson was asked to describe Mya’s appearance in the last year of her life, Johnson said Mya’s hair didn’t appear to ever be brushed and she had bad body odor. “She looked unhealthy,” Johnson said.

The last day Mya had been in school, she complained that she had a belly ache and was gagging.

Johnson’s husband is the school resource officer for Silver Creek. She said when they heard about the emergency call to Mya’s residence 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 saying that he thought Mya was dead as he hugged her husband.

Mya’s sister did not show any emotion, but Johnson said she “might have been in shock.”

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

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

He was called to go 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 had happened from her perspective. Bertino’s Miranda Rights were not read to her. “It was just fact finding,” he said.

Following the two witnesses Friday, both the prosecution and the defense gave closing arguments.

First Assistant District Attorney Jeffrey DiPalma noted this was not a trial; it’s a preliminary hearing where the prosecution is required to show “reasonable cause” for the charge.

DiPalma said he believes the prosecution has established that Bertino showed “depraved indifference” in her daughter’s death. “This is not an ordinary indifference. This shocks the conscience of the normal person,” he said.

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

Assistant Public Defender Andrew Brautigam noted that Mya’s death “was a tragedy” but argued that the prosecution failed to show his client did anything criminal.

Following the closing arguments, Penfold verbally walked through the testimonies of all eight people who spoke and noted that the defense declined to bring any witnesses to the stand.

After issuing his ruling that the second-degree murder charge can remain, Penfold noted the case will move to the Grand Jury and that Bertino will be remanded back to the county jail without bail.

Penfold added this was a very emotional preliminary hearing. “In my 24 years on the bench this is by far the most serious case I’ve ever heard,” he said.

NEXT STEPS

After the hearing, District Attorney Jason Schmidt went over the next steps for the case. He said they will still bring the case to the Grand Jury where additional charges are possible. That’s expected in December.

Once the Grand Jury process is completed, should the District Attorney’s Office obtain 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 into the “discovery” phase, where evidence is gathered and shared with the defense. Once the legal challenges are settled regarding evidence, it can go to trial.

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

While Penfold has issued Bertino to be held at the county jail without bail, Schmidt said the County Court Judge can at any time review her status, following a request from the defense.

Schmidt thanked all of those who testified at the preliminary hearing and said it was obvious the community did 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 resources to this mother in order to help with the care of her own children. And this mother chose to reject this assistance that was offered,” he said.

Schmidt said Bertino needs to be held responsible for her actions. “It is just shocking to me. This is a preventable death. … The entire school district lived up to their responsibility. The one person that is supposed to have the legal obligation, the moral responsibility to do something about it did nothing, until it was way too late. It can’t go unanswered. That kind of action cannot stand,” he said.