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'Joe chose to stay': Attorney defends boy, 14, on trial in arson death of best friend

LOCKPORT – A 14-year-old boy on trial for the death of his best friend in a giant fire in Lockport left the courtroom Wednesday when a photo showing the remains of Joseph Phillips was introduced as evidence and tacked to a bulletin board.

The boy sat alone, looking agitated, outside the Niagara County courtroom. His parents, who had been sitting with him at a separate table from the two defense lawyers, remained in the courtroom to hear the testimony of Michael Knowlton, a state fire investigator who made the official ruling of arson in the Aug. 10-13 blaze at HTI Recycling, a tire recycling plant.

Meanwhile, Phillips' mother, Ann Phillips, looked on stoically through the day's testimony. She sat alone much of the time, while at various times there were as many as 20 spectators in the courtroom who appeared to be friends of the family of the defendant.

Defense attorney A. Angelo DiMillo said the defendant, who told police he left the burning building, cannot be held responsible for the death of the friend he left behind. That's because Phillips started the fire himself and could have run away, too, DiMillo said in his opening statement.

"Joe chose to stay," DiMillo said. "He didn't appreciate the danger involved. He could have run out of the building just as (the defendant) did."

Joe Phillips

The boys entered the abandoned office building on the Stevens Street side of the HTI Recycling property late in the afternoon of Aug. 10, with the intention of starting a fire with papers, DiMillo told Family Court Judge John F. Batt, who is presiding over the non-jury trial.

DiMillo said the prosecution cannot prove the charge of criminally negligent homicide that heads the list of 10 charges against his client.

DiMillo said that his client, when interviewed by police, said the reason for the intrusion was "to have fun, I guess."

"The last time he saw Joe, he was trying to use his shirt to put (the fire) out, which may not have been the smartest thing to do," DiMillo said.

He said his client ran to another friend's home looking for water to extinguish the blaze. That friend, another adolescent expected to testify in the trial, had been in the HTI building with Phillips the previous week, starting small fires with papers, according to DiMillo.

The Lockport Fire Department, which battled the fire for four days, had previously estimated the damage at $5.25 million. Assistant County Attorney John S. Sansone, in his opening statement, gave a $13 million damage figure.

County Attorney Claude A. Joerg said that figure was derived from HTI's insurance claim. The Fire Department's estimate was based in large part on the replacement price of the equipment lost in the gigantic blaze.

The trial was scheduled for Wednesday and Thursday, although the case may carry over to March 16, 17 and 20 if the testimony isn't completed.

The defendant told police that there were two fires, one on the second floor, which the boys extinguished with liquid from a discarded Gatorade bottle they found. The second, on the first floor, was the one that got out of control.

Phillips, trapped inside the building, made a desperate cellphone call to the defendant a few minutes later, but it went to voice mail. Later that evening, when the other boy heard the message, he played it for his mother, who called Lockport police. The tape is expected to be played during the trial.

Testimony Wednesday from Marc E. Kasprzak, director of emergency communications for the Niagara County Sheriff's Office, indicated that a Lockport police officer near the fire scene phoned in a report at 7:06 p.m. Aug. 10, 30 minutes after the fire was first reported, indicating a person may have been caught in the building.

Worst feared after a charred body is found in debris of Lockport fire

Phillips' remains were found Aug. 12, although they couldn't be identified until a week later.

The fire burned for three days and was finally extinguished Aug. 13, with help from 60 fire departments from four counties. Scores of residents near the epicenter of the fire on the Stevens Street side of the HTI property were ordered to evacuate their homes, but no one other than Phillips was hurt.  Damage was contained to the tire recycling plant, where four buildings were destroyed.

In the trial - a "fact-finding hearing," in Family Court parlance - the defendant is charged with criminally negligent homicide in the death of Phillips, as well as nine other counts of burglary, arson and criminal mischief.

In an unsuccessful attempt to get Batt to dismiss the charges, DiMillo argued Dec. 20 that Phillips brought a lighter to the scene and was the one who started the fire, meaning his client is in effect being charged as an accomplice. He repeated that argument Wednesday.

Batt scheduled the trial after the sides were unable to work out a plea bargain.

If the defendant is convicted of any of the 10 counts, Batt could sentence him to as long as 18 months in a state juvenile detention facility. Criminally negligent homicide, arson and burglary are not on the list of crimes for which juveniles can be tried in adult courts in New York State. An adult convicted of the most serious charge in this case would face a maximum 15-year prison sentence.

Ann Phillips declined to be interviewed at the trial.

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