LOCKPORT – A judge refused Thursday to dismiss any of the charges against a 14-year-old boy accused of setting a fire that killed a friend and did $5.25 million in damage to a Lockport industry.
Instead, Niagara County Family Court Judge John F. Batt gave the attorneys until Jan. 10 to work out a plea bargain for the boy. If those talks fail, he then will schedule a "factfinding hearing," the Family Court equivalent of a trial.
The Aug. 10 fire at HTI Recycling, a company that recycles tires, is considered the largest in Lockport history. It burned for four days and caused scores of residents to be evacuated from their homes by police order.
The blaze was started in the early evening, when two boys entered a vacant former office building on the Stevens Street side of the HTI property. Joseph Phillips, 14, was trapped inside the building; his body was found Aug. 12 but not positively identified until a week later.
The company's owner, Derek Martin, said while the blaze was still burning that he had evidence it has been set by kids.
In an interview after the last court date Nov. 29, defense attorney A. Angelo DiMillo asserted that Phillips set the fire in the presence of his friend – the defendant who now is facing charges that include criminally negligent homicide.
That claim was bolstered during an hour of oral argument Thursday, in which both sides cited a scenario that had Phillips starting two fires: one on the second floor, which they extinguished with the contents of a discarded bottle they found, and one on the first floor, which got out of control.
Assistant County Attorney John S. Sansone, the Family Court prosecutor, said eight of the 10 counts accuse the defendant of being an accessory to crimes committed by Phillips.
One of the other two is the criminally negligent homicide charge, which DiMillo tried to persuade Batt to dismiss.
“How did (the defendant) with criminal negligence cause the death of Joe Phillips? What did he do?” DiMillo asked the judge. “He certainly didn’t cause Joe’s death. … Joe had the lighters. Joe lit the fire. The second fire got out of control.”
Sansone argued that the boys agreed while walking down the street toward HTI that they were going to start fires. “They knew they were going in there to start fires and they didn’t bring anything to put it out. If that’s not criminal negligence, I don’t know what is,” Sansone said.
He said the defendant told police that as he left the building, Phillips was trying “desperately to put the fire out with his shirt.”
The defendant got out safely and later received a cellphone call from Phillips, which DiMillo previously described as "a desperate plea for help." The call went to voicemail, but the defendant played it for his mother, who reported it to Lockport police. That eventually led to charges against her son, who was 13 at the time of the fire.
Besides the homicide charge, the charges against the boy include third-degree burglary; third-, fourth- and fifth-degree arson; third-degree criminal trespass; and second-, third- and fourth-degree criminal mischief. The allegations included two fourth-degree mischief counts. Six of the 10 counts are felonies.
DiMillo said he made no request to have the criminal trespass count dismissed, thus admitting that his client was in the building.
Relying on a transcript of the Lockport police interview with the defendant and a sworn statement from a third boy, Sansone said the defendant and Phillips went to HTI on Aug. 10 with the intention of starting fires.
Sansone said the third 14-year-old told police that he had been inside the former office building twice himself, and said the other two boys had been in there five times. Sansone quoted the boy as saying, “I know Joe had started a fire in there once before. It was a piece of paper.”
Sansone said the defendant got onto the property by climbing a tree and jumping over a fence, while Phillips crawled under the fence. Sansone said it was the same method they’d used before to gain entry.
DiMillo said that on Aug. 10, Phillips was the only boy who had a lighter. The first fire on the second floor was started using a discarded book, DiMillo said, and was extinguished by using the contents of a discarded Gatorade bottle they found there.
Sansone said the defendant stated that the boys stayed in the building for about an hour before the second floor fire was started. DiMillo said Phillips started it with boxes and papers that he lit in a sink. Sansone said the flames spread up the wall to the ceiling and burned there in the shape of a circle. He said the defendant wouldn’t have been able to tell police that if he hadn’t been there.
The prosecutor also cited the third boy’s statement that the defendant came to his house after escaping and was “covered with soot.” Sansone said the defendant told his friend, “There was a lot of smoke.”
DiMillo said his client told police that he was in another room when Phillips started the second fire, a claim Sansone contended was false.
DiMillo said his client told police that after the first fire was put out, “We were about to leave and Joe said no.” DiMillo said after the second fire erupted, the defendant told Phillips to get out and then ran from the building himself.