SILVER CREEK, N.Y. (WKBW) — A Silver Creek woman charged with second-degree murder in the death of her 12-year-old daughter will have her case moved to a grand jury following a two-day preliminary hearing at Hanover Town Court.
Judge Christopher Penfold, who has served 24 years on the bench, called the case “by far the most serious” he has ever presided over.
Ashley Bertino faces charges related to the death of her daughter, Mya Smith, who passed away in April from untreated diabetic ketoacidosis. The Erie County Medical Examiner’s Office classified the cause of death as a homicide.
Mya was a student at Silver Creek Central School District and had two siblings.
After hearing testimony from eight witnesses, including school officials and medical experts, Judge Penfold ruled Friday afternoon that the case would proceed to a grand jury, where prosecutors will seek an indictment.
A coroner who testified said the cause of death is labeled as “medical neglect.”
In court, both the Chautauqua County District Attorney's Office and the defense shared closing statements.
First Assistant DA Jeffrey DiPalma argued that Bertino "acted recklessly" which led to Mya's death.
"Our job is to make sure that justice gets done here, and that's what we are striving to do. We are the voice for Mya at this point, because she's no longer here to tell her story," DiPalma said.
On Friday morning, the school nurse testified that she had known Mya since kindergarten and that Mya frequently visited the nurse’s office due to ill-fitting clothes.
An investigator from the Chautauqua County Sheriff's Office also testified, stating that he was called to the hospital where Mya was pronounced dead. He described Bertino as "a little bit upset" with "some tears in her eyes" when questioned.
The investigators said that Bertino said she had checked on Mya, noting she was breathing but not responding.
Throughout the hearing, testimony revealed concerns from the community about Mya’s well-being in the weeks leading up to her death.
"This should not happen. Mya Smith should be alive," Chautauqua County District Attorney Jason Schmidt said. "It's shocking to me that we you know, here we are in 2024 and you have an entire community—who'd you hear from? You heard from neighbors, the school nurse, the teachers. You had the school resource officer. You had the entire community trying to provide resources to this mother in order to help with the care of her own children."
The defense, however, argued that the evidence presented did not show any criminal wrongdoing on Bertino’s part. They pointed out that Bertino had scheduled a doctor's appointment for Mya the day after her death occurred.
Bertino remains in custody at the Chautauqua County Jail without bail. The case is now set to be presented to the grand jury, which will determine whether criminal charges will be formally filed.
The defense has declined to comment on the outcome of the hearing. Meanwhile, the District Attorney's Office is moving forward with efforts to secure an indictment.
