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What persuaded DA not to charge Rome cop whose baby died after he left the boy in car

Aug. 1, 2016
By Elizabeth Doran |

This is the home in the town of Western near Rome where a baby, Michael Fanfarillo, died after his father left him in the back seat of the car for eight hours after he forgot to drop him off at child care on June 6, 2016. (Patrick Lohmann | Michael Fanfarillo, 4 1/2 months old, died after his father left him in a car at the family home on June 6, 2016. Michael Fanfarillo, 4 1/2 months old, died after his father left him in a car at the family home on June 6, 2016.

UTICA, NY - Mark Fanfarillo was responsible for the death of his infant son on June 6. That much the Oneida County district attorney, Scott McNamara, knew. But was it a crime? For McNamara, the answer was "no," based on the law, some detective work and one telling, thoughtful act of a doting father just before the fatal mistake that would forever change his life. At 6:30 a.m. on that Monday, Fanfarillo, a Rome police officer, woke up, changed his infant son's diaper and played with him and his older son while his wife, Jessica, got ready for work. She left for her teaching job at 7 a.m., and Fanfarillo left shortly after to drive his sons to two different day care centers. When Fanfarillo arrived at his older son's day care in Whitesboro around 8 a.m., he checked in Brandon, 7. His 4 1/2-month-old son was sleeping, but the father did not leave him in the car. He picked up the baby's car seat and carried Michael into the center. Several day care workers gathered around the baby, remarking on how cute he looked. That small act - carrying his sleeping infant into the center rather than leaving him in the car for the two minutes - made a huge impression on McNamara. It helped show the district attorney that Fanfarillo was a responsible father who cared about his son. Scott D. McNamara, Oneida County District Attorney. Scott D. McNamara, Oneida County District Attorney. "He did what you would want him to do - what a good father would do and not what might have been easiest, which is to leave him in the car for a couple minutes," McNamara said. That was just one factor - although a telling one - McNamara said he considered when deciding last week not to charge Mark Fanfarillo in the death of his child, Michael Fanfarillo. The baby died after his dad forgot to take him to day care, drove to the family home in Western near Rome and then inadvertently left him in the car for more than eight hours on a summer day. To charge Mark Fanfarillo, McNamara said he'd need to prove the father knowingly left his child in the car. The DA said the law distinguishes between someone who leaves his child in a car knowing the child is there but not realizing the risk, and someone who walks away from the car after forgetting the child is in it. Rather than getting special treatment because he's a police officer as some have alleged, Mark Fanfarillo received extra scrutiny because he was a police officer, McNamara said. "We looked at him harder because as a police officer, he has the training and experience to know leaving a child in a car is a very dangerous act,'' he said. "We were looking at second-degree manslaughter rather than criminally negligent homicide for that very reason." Every piece of evidence, however, corroborated Mark Fanfarillo's claim that he forgot his baby was asleep in his car seat in the back seat that day, McNamara said. Forgetting, however horrific, would not stand up in court to get a conviction, he said. Babies left in hot cars is a tragic occurrence that happens more often than you might think. Since 1998, more than 680 children have died in hot cars in the United States, an average of 38 a year, according to Jan Null, a research meteorologist at San Jose State University who tracks such deaths. Null said his research also shows the child's father is the one most likely to forget the child in the car. Cars get hot fast. The high was 77 degrees the day Michael Fanfarillo died, according to the National Weather Service. That means the temperature inside a vehicle could easily have been more than 120 degrees, Null said. Parents from all walks of life and all different professions have left their children in hot cars by mistake, resulting in infant hyperthermia, typically the cause of death, according to experts. In some cases charges are pressed when the person who left the child has a history of prior neglect, or evidence of substance abuse. Sometimes, parents have knowingly left their child in the car knowing the risk but doing it anyway. These are the cases that typically result in charges and convictions. McNamara gave an extensive interview last week to | The Post-Standard to help explain in detail what happened the day Michael Fanfarillo died, how authorities investigated the case and how they decided not to charge the father. Mark Fanfarillo was supposed to drop his baby son off at a Rome day care center right after he dropped 7-year-old Brandon at a different center in Whitesboro. Instead, he forgot to drop off Michael and drove home, parked in his driveway, went inside, did a couple chores including shampooing a carpet and went to bed. (He typically worked nights, so he was used to sleeping during the day; he had not, however, worked the night before, the DA said.) At 4 p.m., Mark Fanfarillo got up, dressed and got ready to get his older son and bring him to soccer practice. As he left his home, his wife called. She was at the day care center to pick up Michael, but they said he'd never been dropped off that day. For a moment, Mark Fanfarillo didn't say anything, and then he realized he'd forgot their baby in the car that morning. Horrified, he ran to the car screaming "Oh my God, oh my God" over and over. A neighbor heard his cries, and ran over, calling 911 as Mark Fanfarillo tried to resuscitate his child with CPR, the DA said. "He tried valiantly to save his child by giving him mouth-to-mouth," McNamara said. "You can hear his cries on the 911 call. You can only imagine what it's like to hear a parent trying desperately to save his child's life." "I wouldn't wish that on anybody,'' McNamara said, "to have it be your own mistake that caused your child to be in that condition. He was emotionally distraught, as anyone would be who had just realized their son is dead and their negligence caused it. He knew it was his fault. He didn't deny that." What did the DA's office do to check out what happened? And how did the district attorney determine Mark Fanfarillo's horrific and deadly mistake wasn't something else? What could have caused that to happen? A key factor that lead to the child's death appears to be a change in routine, McNamara said. Michael's mom had stayed home with him when he was first born, returning to work a month or so before his death. She typically took Michael to day care, except on Mondays when Mark Fanfarillo usually had the day off. Of the 22 days Michael had been at day care, Mark Fanfarillo had dropped him off three times, the DA said, explaining that the day care center kept detailed records. And this was the first Monday in three weeks he was to take Michael - the Monday before was Memorial Day and the Monday before that his wife had the day off. What did authorities do to confirm what happened? McNamara outlined in detail some of the steps they took: They checked the house to confirm Mark Fanfarillo's story about shampooing the rug and going to sleep. They found the rug wet and the bed was rumpled and unmade. They seized his computer and cell phone and checked to be sure he was not doing something else, like texting, during the time he said he was asleep. He hadn't used his computer or cell phone during that period. They asked responding officers if they smelled alcohol or if Mark acted under the influence, and they all said no. They asked him to submit to a voluntary blood test for drugs and alcohol, which he agreed to do within an hour of Michael's death. They found no evidence of drugs or alcohol. They talked to his ex-wife, mother of his older son, who said he was a "very doting father." They checked his history for caring for his children (for example, had he ever left one of his kids in the car before?). They found nothing bad. They talked to his supervisor, and checked to see if he had any incidents at work. They found nothing negative. They determined Mark Fanfarillo was possibly sleep-deprived as he had a young child and worked nights. They talked to his wife, who was interviewed with her mother, without her husband. She said she didn't want him charged, that it was a tragic error on his part. All the facts supported a memory lapse, McNamara said. The DA said he also consulted with the head of the Oneida County child advocacy center and another deputy who had interviewed Mark Fanfarillo. McNamara said he's never met Mark Fanfarillo. He said he never spoke to the father as it would have been a conflict if he had to prosecute him. McNamara said he researched other cases in New York state and across the United States that he said backed his theory that he'd have to prove Mark Fanfarillo ignored a known risk. He also spoke to the Herkimer County District Attorney Jeff Carpenter, who had a similar case in 2014 where charges also weren't filed. In that case, Carpenter decided not to file charges against 33-year-old Alan Lyon of Dolgeville, who left his 15-month-old Sophia Lea Marie in his car June 4, 2014 forgetting to take her to the babysitter's. Carpenter said at the time "simply forgetting" isn't enough for prosecutors to file criminally negligent homicide charges. In Mark Fanfarillo's case, McNamara said emotions never played a part in his decision not to prosecute and he never considered whether the death of the man's son was punishment enough. "I never even got to that point because there wasn't any evidence to pursue a criminal charge," he said. The decision not to charge Mark Fanfarillo has been unpopular with many, McNamara said. He's taken many of the calls from people who are irate, and believe the father should be punished and the child should have justice. "There is nothing I can say that will ever convince the people who believe that way,'' McNamara said. "Is there justice? Justice would be turning back that clock to 8:30 that morning and saying to Mark 'hey, don't forget your son.' " For the Fanfarillos, life will never be the same, the DA said. "All their hopes and dreams - all that is shattered for this family,'' McNamara said. "I try not to think about how difficult their life is now. I feel their grief." The district attorney said he finds it impossible not to think about the eight hours that baby was in the car. "I did it again today," he said. "I go through it in my mind - what did that little boy go through during that time? Was he crying, was he screaming? I want to believe he just fell asleep and that's it." "I want to make it easier for myself and for the community by believing that,'' McNamara said. "But I can't get there. " Still, McNamara believes anyone can make the same mistake. "Our memories and our brains are not perfect,'' he said. "Things get miscoded, and we make mistakes." McNamara said he's thankful when his children were babies, the rules still allowed for them to be put in the front seat in a car seat. Now, babies have to be in rear-facing seats in the back seat because air bags can hurt a baby in the front seat. "I hope to God I never have anything like that happen again in Oneida County, or anywhere actually,'' McNamara said. "It seems like if we can put a Rover on Mars we can put an alarm on a car seat that goes off to remind a parent the child is there." No charges against Rome cop whose baby died after being left in car for 8-plus hours

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