Attorney for Day School Responds to DA’s Charges
In the past three months, Carousel Day School, which has operated on West Avenue in Hicksville since 1956, has garnered a great deal of media attention.
On March 17, 2-year-old Olivia Raspanti died after choking on a carrot she retrieved from a bag underneath her teacher’s desk. Further examination into the tragedy sparked headlines that the West Avenue school’s day care program was not licensed. On May 20, following an investigation by the county district attorney’s office, Carousel’s owner and director Gene Formica and the school’s assistant director Kathryn Cordaro were arrested and charged with felony reckless assault of a child by a day care provider, reckless endangerment and running an unlicensed day care for toddlers; as of press time, no charges had been filed against Olivia’s teacher who remains employed at the school.
The Hicksville Illustrated News recently sat down with Carousel’s attorney Marc Gann to discuss the charges brought forth against Formica and Cordaro by District Attorney Kathleen Rice.
In her charging documents, Rice references Jeremy and Julia’s Law, seldom-used legislation passed by New York State a decade ago following the deaths of infants in Albany and Florida who died while under the supervision of day care providers. Gann, however, refutes this claim, stating that the aforementioned law does not apply in this particular case as there were no direct actions – or inactions – against Olivia by the day care provider.
“This statute involves either direct inattention or direct physical contact of some kind,” Gann said, adding that neither Formica nor Cordaro had anything to do with the circumstances that led up to Olivia’s death.
Formica, who has been grief-stricken by Olivia’s death, issued the following statement to this newspaper: “The death of Olivia was a tragic accident that deeply saddens all of us at Carousel Day School. We continue to grieve for her family and our thoughts and prayers remain with them, Throughout our long history in this community, we have been dedicated to the enrichment of children. We remain committed to high quality education and the health and safety of our students is our highest priority.”
Such was the case on the morning of March 17, said Gann, in disagreement with the DA’s charges that Carousel employees delayed reporting the emergency to 911. “I don’t believe there is any factual basis to support that. The statements I have of the witnesses provided to me by the district attorney’s office don’t say that at all,” he said. “Everything I know from speaking to people there, reading the statements taken by police at the time and the sequence of events circulating the 911 calls made, is that efforts were being made to get the carrot out of Olivia’s throat.”
He continued, “If there was any delay, and I do not believe there was, it was the result of trying to deal with the emergency situation and when there was a realization that additional help was needed it was immediately called for.” The attorney said he is working to obtain the 911 recordings from the morning of March 17 and believes further investigation should be made into what occurred from the time Olivia was transported by ambulance to Nassau University Medical Center and her time of death nearly six hours later.
In response to claims that Carousel was operating an illegal, unlicensed toddler program for children under 3 years old, Gann said that too has been inaccurately presented. A representative from the New York State (NYS) Office of Children and Family Services (OCFS) told this newspaper back in March that they did not know Carousel existed because the school did not have the license required to operate a toddler program for children under the age of 2 years, 8 months. In her charges, Rice alleges that Carousel refused to get the licensing it needed to operate a toddler program.
Gann said his client was not made aware that a specific license from OCFS was required for the toddler program and, as a result, believed the school was appropriately licensed and operating in full and complete compliance with New York State regulations. In fact, said Gann, a random routine visit four years ago by the state also found Carousel to be in complete compliance.
“The toddler program was in place at this time; the state observed the program. There is no issue that they were licensed by the New York State Department of Education and were in complete compliance with its requirements,” he said, adding, “If New York State, who saw and knew what they were doing there, felt that something was irregular, improper or unapproved, to me the burden should have been on them to tell Carousel they needed to address the issue.”
Gann continued, “That’s part of the confusion and problem here. You’ve got all these different agencies that don’t work together. You think you are in compliance with the one that you think is the umbrella that covers the others and you may be out of compliance with [another] and no one is telling you that.”
Late last month, three monitors were assigned to the school at Carousel’s expense after NYS OCFS tried to obtain a court order to shut down the school and, on June 9, State Supreme Court Justice Edward McCarty worked out an agreement between Carousel and OCFS officials to keep the school open until the semester ended June 18 by increasing the number of monitors from three to five. Gann said any issues raised by OCFS monitors have been immediately addressed. “There has been no hesitation on the part of Gene Formica, Kathy Cordaro or anyone at the school to address any area of concern that anyone had in regard to the way the school was operating,” he said.
According to Gann, as of press time, Carousel’s requests to obtain an application for the license from OCFS have gone unanswered. “You would think in a situation like this the application would be provided immediately upon request, even if it was going to be denied,” he said. Calls to OCFS were not returned as of press time.
Gann is scheduled to return to court at the end of June and had plans to meet with Rice next week to discuss the charges further and said he will not agree to any charge against his clients that pertain to criminal assault or criminal responsibility. He is standing firm on his belief that Formica and Cordaro should not have been arrested on criminal charges when, in his opinion, this should be handled as a civil case.
“This all comes back to the fact that there were carrots in the room that were accessible to the children. I don’t think anyone is disputing that; I certainly am not disputing that. Was it a mistake to bring them into the room? Sure it was … [but] it doesn’t change the fact that it was a mistake and not something that should rise to the level of criminal conduct,” he said. “I don’t understand the connection or the relationship of charging them individually with reckless assault. Should someone be held negligent? Yes. But I don’t understand how you can hold anyone criminally responsible. To punish these people criminally for this makes no sense to me.”
Gann added that he believes the DA, in regard to his case, is “engaging in significant grandstanding in an effort to generate publicity and to capitalize on something that is a tragedy all the way around.”
