Will he or won't he? Evergreen Court judge could still toss DA's plea deal, order jail

Even though he approved a plea bargain that would keep two rabbis out of jail for their roles in sparking the fatal Evergreen Court fire, Rockland County Judge Kevin Russo has a wide range of options open to him at sentencing on Sept. 20 — including scrapping the deal and putting Nathaniel and Aaron Sommer behind bars.

Since District Attorney Thomas Walsh's office made no specific sentencing recommendation on the record and had the Sommers plead to what is called the "top count" of their indictments, it put the decision squarely on Russo's shoulders, said Syracuse Law School adjunct professor and former longtime Onondaga County prosecutor Rick Trunfio.

"Generally speaking, when somebody pleads to the top count, a judge has within his or her complete legal authority and discretion to sentence them to the sentencing range that the legislature has deemed appropriate," Trunfio said.

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For the second-degree manslaughter charges to which Nathaniel Sommer pleaded guilty, a class C nonviolent felony, that range is probation to five to 15 years in state prison. For Aaron Sommer's guilty plea to misdemeanor second-degree reckless endangerment, the range is a conditional discharge, three years probation, or up to a year in county jail. (One can't be sent to state prison for a misdemeanor conviction.)

If Russo decides to change his mind and dash the plea agreement, the only thing he's required to do, Trunfio said, is to give the Sommers the option to withdraw their guilty pleas.

Blowtorch and coals were used to purify Evergreen Court kitchens

Dozens of firefighters and their allies protested outside the courthouse on June 20 as the father and son rabbis admitted they used a blowtorch and burning coals to purify the Evergreen Court Home for Adults kitchens for Passover, actions that triggered the March 23, 2021 fire that killed Spring Valley firefighter Jared Lloyd, 35, and Oliver Hueston, 79, an Evergreen Court resident.

Nathaniel Sommer, 72, pleaded guilty to two felony counts of second-degree manslaughter and his son, Aaron, 29, pleaded guilty to second-degree reckless endangerment. They were charged $600 in court fees and, in exchange for the guilty pleas, would avoid jail time.

The plea bargain struck by Walsh triggered a firestorm of rage from the county’s fire service and beyond. Angry letters and petitions called for Walsh to resign. He was declared persona non grata at fire events across the county. The district attorney has yet to speak publicly about the plea deal and declined to comment for this article, directing inquiries to his office's public information officer, Chief Detective Peter Walker, who did not respond.

Specifically, The Journal News/lohud was seeking to learn whether, during negotiations over the plea deal, Walsh or his office had recommended jail time for either defendant, or if they had agreed to probation from the outset.

'Jail time was proposed'

While the DA's office continues to be mum, defense attorney Jacob Laufer answered questions through spokesman Hank Sheinkopf, a political operative whose clients have ranged from President Bill Clinton to New York Mayor Michael Bloomberg.

In an emailed response to questions, Sheinkopf said there were four or five court appearances in the Sommers case, with the prosecution and defense teams asking to confer, with Russo present, at each. The conferences would last 10 minutes or so, Sheinkopf said, after which Russo returned to the bench, indicated a conference had occurred, and announced the next court date in the case.

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"Jail time was proposed," Sheinkopf said, but it was eventually taken off the table.

"This was an evolving process, requiring evaluation of further evidence and the involvement of additional counsel," Sheinkopf added. "This included persuasive polygraph examination results and testimony from a nationally known and highly regarded arson investigator."

The nature of the relevant polygraph questions — the answers to which the arson analyst said were "not indicative of deception" — involved when and how the elder Sommer used the blowtorch and whether he deliberately failed to take standard fire safety precautions. The younger Sommer was asked if he used the blowtorch, and if his father used a blowtorch, to such an extent that it made any sink glow in the Evergreen Court kitchens. He answered no to both and the analyst said his responses were "not indicative of deception."

'Are the People satisfied?'

In Russo's courtroom on June 20, prosecutor Michael Dugandzic read through each man's allocution, basically the case against them, with the defendant replying "Yes" to each element of the case. Nathaniel Sommer answered "Yes" or "Yeah" 21 times as the prosecutor laid out his actions and their deadly impact that night. Aaron Sommer answered "Yes" nine times to the case against him.

Then the judge had a question for Dugandzic.

Russo: “Are the People satisfied?”

Russo: “Thank you. I find the plea was made knowingly, intelligently and voluntarily.”

Dugandzic: “We are satisfied with the factual allocution, yes, Judge.

Lloyd's mother, Sabrail Davenport was not satisfied. She responded to the plea with four words: "disappointment, disgusted, heartbroken, and betrayed." Davenport said she wants jail time for the men whose actions cost her her son.

"He promised justice was going to be served," Davenport said of Walsh. "This deal is not justice."

Seeking linguistic distance from the plea

If Dugandzic was satisfied with the allocution, the transcript shows Walsh's office seeking to distance itself from the plea deal, even as it was making it happen. When Russo asked Dugandzic if he wished to put the plea on the record, he deferred to defense attorney Laufer.

Dugandzic: Judge, as has been conferenced in the past, the People's position on this case was to seek two manslaughter pleas for at least one of the defendants, which has been indicated at numerous conferences. The Court has indicated its position as to what the sentencing would be, and my understanding is that the defense and the Court are amenable for that disposition to occur today.

But when Laufer, in the absence of action by Dugandzic, took up the plea deal and stated the charges to which his clients would plead guilty, he made sure to include the prosecution's role.

Laufer: In both cases in satisfaction of the charges contained in the indictment following these discussions based upon the agreement of the defense and the District Attorney's Office, the Court has indicated that it would agree and go along with a sentence of probation for the defendants in connection with these guilty pleas.

What goes into a plea bargain?

Rick Trunfio was first chief assistant district attorney for the Onondaga County District Attorney’s Office in Syracuse, where he was responsible for the office's day-to-day operations. He read the transcript of the Sommers' allocution and read between the lines.

"It appears from the transcript that they had negotiations before the judge. The prosecutor said, 'Judge, we just want a plea to the top count.' That in some regard, gets them off the hook, because all of sentencing decision falls upon the judge," said Trunfio, now an adjunct professor at Syracuse University School of Law and Maxwell School of Citizenship and Public Affairs.

"If the prosecutor wants state prison time or some type of time, they would say that," Trunfio continued. "They would get on the record and say to the judge: 'Judge, you could sentence them to whatever you want, but we're asking for 3 to 6. We're asking for 4 to 12. We're asking for 5 to 15.' So they're making their intentions known.

"You could say, 'Judge, we believe that this case deserves state prison and the victims want state prison. And this case calls for state prison.' What you've done is now you're putting the judge on the spot."

That doesn't appear to be the case here, Trunfio said. Here, he said, "It looks like the defense attorney says, 'Judge, they just want a top-count plea. They don't seem to care about the sentencing. Will you commit to probation?' And the prosecutor agrees that, 'Judge, we're OK with that sentence. It's your decision.' So they're not pushing back on the sentence.

"I don't know if it's an agreement," he said. "I think that you look at it, it's a tacit agreement."

The victims' families in the Evergreen Court case said they were not consulted before the plea was presented to them as a fait acccompli, days before Russo signed off on it. When they asked for a trial, they said Walsh told them there wouldn't be one.

Who is Judge Kevin Russo?

Raised in Rockland, Judge Kevin F. Russo, 67, was elected to the County Court in 2016 after garnering 70,376 votes on the Democrat, Green and Working Family party lines, according to county results. His 10-year term expires in 2026 and he is paid $125,600 per year.

Russo had a private law practice from 1995 to 2016 and was a village justice for West Haverstraw from 2008 to 2016.

Two other Evergreen Court cases came to Russo’s court.

In February 2023, he dismissed charges against former Spring Valley Building Inspector Wayne Ballard, also the public works director. The following month, Russo dismissed similar charges against Ray Canario, a former building inspector and volunteer firefighter who had helped to fight the Evergreen Court fire.

Russo found the prosecution failed to prove the men knowingly filed false paperwork on village inspections with the state.

Including the Sommers, six people arrested with fanfare within months of the March 2021 fire have seen their charges dismissed or pleaded out.

Walsh dropped a reckless-endangerment case against Denise Kerr, the facility's director, who hired the Sommers to clean the kitchens despite their not having a permit to do so. He also declined to prosecute former employee Manual Lema, who had told fire dispatchers to ignore fire alarms during the cleaning and gave another man’s name as the contact who would call to give the all-clear.

The cases against Kerr and Lema, who were arrested in June 2021, were resolved before the calendar turned to 2022. Both received adjournments contemplating dismissal and testified before the grand jury.

Judge Kevin Russo has jailed others

Aside from the Evergreen Court cases, Russo oversaw the corruption trial of then Spring Valley Trustee Vilair Fonvil. He found Fonvil guilty of stealing nearly $12,000 from the village summer camp program and sentenced him to a year in the county jail in 2018.

He sentenced Robert Williams to life without parole in 2022 for murdering the mother of his baby and her mother on the property of the Tolstoy Foundation nursing home facility in Valley Cottage.

Russo recently acquitted South Nyack resident Wendy Jean of second-degree murder of Gregory Dubuisson of Nyack in 2020 — a decision that rankled Walsh. But Russo convicted Jean for possession of a weapon, a gun. On June 21, Russo sentenced Jean to 6 1/2 years in state prison for the class C felony.

A two-part process

When Russo approved the Sommers plea deal, it was the first half of a two-part process that won't play out fully till September. In the meantime, Trunfio said, the county's probation department is compiling a pre-sentencing report that will guide Russo at sentencing.

That process could take up to six weeks. They interview victims and victims' families. They interview the defendant. They collect victim-impact statements. They gauge the defendant's degree of remorse. And they look at the defendant's history, their educational background and job history, their criminal history. All of that will be given to Russo and to defense attorney Jacob Laufer before the Sept. 20 sentencing.

It will be up to Russo to weigh competing concerns, Trunfio said.

"From a judge's point of view, they've got a defendant that has no (criminal) history, they're religious, this was an accident. It was a stupid, reckless move, but it was an accident. Nobody intended anything," he said. "This probation decision, I think that everybody involved thought this probably isn't a stretch."

But there are other voices to consider on Sept. 20, he said.

"What they may not have factored in is the strong feelings of the volunteer firefighters and of the civilian that died, their family's feelings," Trunfio said. "It's going to be very interesting, but it all happens on the 20th."

Russo will look at the facts of the case, the results of the defendants' conduct and any statements made at the sentencing hearing by victims and the defendants.

"If any of that causes the judge to hesitate to impose the sentence he agreed to, he will contact lawyers and warn them that he will allow the defendant to withdraw his plea," Trunfio said. "Then they start over. Maybe a new deal or maybe a trial."

Such a move is not common, he said, "but it’s always a possibility on a case like this, where there is community uproar and the victims will speak against it at sentencing."

The sentencing won't be pleasant for Russo — who'd have to justify his no-jail decision in front of grieving families — nor for Walsh and his team.

"It's going to be awkward because the victims have a right to speak at sentencing, under the New York criminal procedure law," Trunfio said. "It'll be very awkward."

Will he or won't he?

If Russo has a change of heart about the plea deal, the defense will be given time to consider its options, including withdrawing the defendants' pleas.

Difficult calculations could need to be made, Trunfio said.

"Let's say the judge says, 'I can't give probation, but I'm going to give some local time in jail. I'm going to do weekends in jail. I'm going to do six months in jail.' Well, the defendant may not withdraw their plea because if they go to trial, they're facing 5 to 15 years," Trunfio said. "So there's a lot of nuance there."

Something could happen on sentencing day, but Trunfio said judges tend to give warning to the defense if such a change of heart has occurred.

"If there is an adjournment of the sentencing, then you know something's probably going on, in terms of changes," Trunfio said. "But the withdrawal (of the plea) has to be done on the record in court."

That means more than two months of wondering: Will he or won't he? And if the case could be changing with the season come September.

Said Trunfio: "A lot of judges say, 'I'm the judge. I was elected to use my judgment and apply the law within my discretion. And based upon the facts and the law, this is what I feel is right.' (From the transcript), he seemed really comfortable with that. Now the nuance is, I don't know if he's comfortable with that because the prosecution's not jumping up and down saying 'They should go to jail.'"

Reach Peter D. Kramer at pkramer@gannett.com. Reach Steve Lieberman at slieberm@lohud.com.

This article originally appeared on Rockland/Westchester Journal News: Rockland judge could still drop Evergreen Court fire plea bargain