Penny Myers, her husband, Bennett, and her family were the victims of an arson last December when Dino Bruscia allegedly set their Amherst home on fire. One of their sons were also repeatedly harassed and called derogatory slurs in the months leading up to the incident. Prosecutors on Monday charged Christian McCaffrey with a hate crime of aggravated harassment. Bruscia was also charged Monday.
READ MORE: TWO CHARGED AFTER THREATS AND ARSON AGAINST JEWISH FAMILY
Neither the harassment nor the arson charges are considered violent crimes. Because of that, both of the defendants are out of jail because of New York State's bail reform laws that took effect at the start of the year.
"For the last seven months we have been living in fear knowing that these men are free," Penny Myers said after Monday's arraignment. "That they could try again. We have been told it will be months more before they come to trial. Our fear will continue until they are safely behind bars. They are free and we are not."
They are pleading for state lawmakers and the governor to fix the law and give judges discretion to put certain people behind bars, such as McCaffrey and Bruscia.
"These men being free is a travesty," Myers said. "They are a danger not only to us but all of Western New York."
WBEN attempted to contact Assembly Majority Leader Crystal Peoples Stokes and New York State Senator Tim Kennedy for comment but did not hear back as of late-Monday afternoon.
Erie County District Attorney John Flynn shared the Myers family disgust over the bail status, particularly with the arson charge against Bruscia.
"The arson in the third degree is, under the new bail statute as of January 1, a non-qualifying offense," Flynn said. "I have no right to even ask for bail and a judge can't put bail on there. I personally believe that arson is a violent crime. You've heard me say time and time again. I've got no problems with misdemeanors and non-violent felonies having no bail. If there's certain circumstances where there should be, I think a judge should have discretion. As a general rule, I have no problem with misdemeanors and non-violent felonies not being on the bail list."
Prosecutors said Bruscia used a flare gun to start a fire at the Myers home. Myers claimed there was an attempt to kill their entire family in the fire.
There has been efforts to rollback some of the reforms implemented by the state. Republicans in both state houses held hearings on ways to improve the law. Lawmakers have added some charges which would require bail, such as sex trafficking, possession of a weapon on school grounds, vehicular assault, hate crime arson in the third degree, and more.
Flynn said there was not enough evidence to charge Bruscia with a hate crime.
"Instead of picking and choosing different charges to add on, all they needed to do was mimic the penal law that has a list of what violent offenses are," Flynn said. "That's the easy way to do it but they chose not to do that and tried to pick one at a time and add it on...Giving judges discretion would be even better."
Both defendants in this case are not allowed to contact the Myers family. If they do, they would be in jail and require bail in order to get out.
McCaffrey faces four years in prison for the aggravated harassment charges, one of which is a hate crime. Bruscia faces 15 years in prison if convicted of arson.