Ashley Bertino

A ruling by Judge David Foley involving him dismissing a murder charge against a Silver Creek mother is being appealed.

Earlier this year, a hearing was held in Chautauqua County Court where the Public Defender’s Office had challenged the validity of the second-degree murder charge against Ashley Bertino, who is now 37 years old.

Bertino’s daughter Mya Smith died April 29, 2024 from diabetic ketoacidosis, commonly referred to as untreated diabetes.

Prosecutors believe Mya’s life could have been spared if she was given basic medical care. They accuse Bertino of having a “depraved indifference to human life.”

Along with second-degree murder, Bertino was also charged with second-degree manslaughter and three counts of endangering the welfare of a child.

Bertino’s attorneys had argued that the symptoms that the child had exhibited were symptoms that only a medical professional would understand and that she shouldn’t be charged with second-degree murder.

“In addition to manslaughter second, we had charged murder two under a depraved indifference theory and Judge Foley dismissed that charge. He felt it was inappropriate,” District Attorney Jason Schmidt said in a phone interview. “Right now that decision is up on appeal and we are perfecting our brief. We’ve appealed it. We want to take it to the Fourth Department. We feel this is a good case for the court to consider to extend the depraved indifference theory to here.”

Public Defender Nathaniel Barone said they remain confident in having the second-degree murder charge removed. “We agree with the judge’s decision and the dismissal, and don’t believe that it should have ever been indicted,” he said.

Schdmit said he doesn’t think the Appellate Division will hear the case until the second quarter of 2026.

Bertino remains in the Chautauqua County Jail, with bail set at $250,000.