Andrea Fortuin maligned, Ken Fortuin applauded in court
The Enterprise — Marcello Iaia
Huddle: Judge Peter Lynch, left, confers with the attorneys involved in the sentencing of Kenneth Fortuin in Albany County Court after his attorney, Cheryl Coleman, leaning furthest over the bench, asked to stop the emotional reading of a victim impact statement. Coleman’s associate attorney, Kathryn Conklin, stands beside her in white, and Deputy Chief Assistant District Attorney Cheryl K. Fowler looks on from the far side of the bench.
The Enterprise — Marcello Iaia
Extemporaneously, defense attorney Cheryl Coleman, left, speaks at length about the plight of her client, Kenneth Fortuin, beside her, who was sentenced last week in Albany County Court for obstructing firefighting and lighting his Knox home on fire. She spoke of him as “tender,” blaming his crime on depression she attributed to his ex-wife.
ALBANY — Half of an Albany County courtroom was packed last Thursday morning by friends and family of Kenneth Fortuin, set to be sentenced for burning his Knox home and keeping firefighters from responding.
On the other side of the aisle, most of the seats were empty. In the back row, Andrea Fortuin sat with four supporters. She had been married to Kenneth Fortuin; together, they had two children. Their divorce was finalized on Feb. 7, two days after he set fire to the house and four outbuildings they jointly owned.
The courtroom drama centered around the couple’s discord: After Andrea Fortuin read a victim’s impact statement, Kenneth Fortuin’s lawyer — who couldn’t get the judge to stop the reading — alleged that “she almost killed him.” Twice, the roughly 45 supporters of Kenneth Fortuin broke into applause as court officers tried to quell the outburst. While those being sentenced frequently apologize to their victims, Kenneth Fortuin made no apologies to his ex-wife; his lawyer had maintained he was the victim, not she.
The sentence had been arranged earlier as part of a plea deal and, when it was finally announced by Albany County Court Judge Peter A. Lynch at the end of an emotion-packed 50 minutes, there were no surprises.
Lynch sentenced Fortuin to two-and-a-third to seven years in state prison for the felony arson charge, and to a conditional discharge for obstructing firefighting operations, a misdemeanor. Lynch also ordered Fortuin to pay restitution, which he said earlier was set by the outstanding mortgage. “I have signed a restitution order in the total sum of $149,625.54 for the benefit of the Erie Insurance Company of New York to be paid through the Albany County Probation Department at the rate of $500 per month beginning...60 days following his release," said Lynch.
Andrea Fortuin told The Enterprise this week that she “did not reap any reward from insurance.” She said her settlement, in the end, is exactly the amount stated on the divorce agreement that Kenneth Fortuin signed on Nov. 13, 2013; he was to have paid it in 90 days, at which point he would have owned the farm “free and clear,” she said.
The property at 75 Saddlemire Road was assessed last year, before the fire, at $194,000, which is 62 percent of the full value of $312,903; it is currently assessed at $124,300 with a full value of $200,484, according to Russell Pokorny, the Knox assessor. “I reduced the value of the property to the value of land we had on the roll,” Pokorny said this week.
Lynch last Thursday also issued a no-contact order of protection for Andrea Fortuin and the Fortuins’ daughter that will last until June 18, 2029.
Outside the courtroom, after the sentencing, Kenneth Fortuin’s lawyer, Cheryl Coleman, told The Enterprise, “He’ll be out in nine months to a year…Both sides knew that.”
She explained this was typical for a nonviolent felony. “When the minimum gets below two years, you become eligible for certain programs,” she said.
Although Coleman requested that Fortuin be admitted to the CASAT (Comprehensive Alcohol and Substance Abuse Treatment) program since his crime was “in some way alcohol-fueled,” the judge said he couldn’t order CASAT because Fortuin’s was not a drug offense; Lynch said he would leave that determination to the Department of Corrections.
Coleman said afterward that Fortuin could get counseling and become part of a work-release program, “easing into more time in the community.”
“He can be home with his family in a year,” she said.
In making the plea deal, she said, “One thing we gave up was our right to the shock program.” That is a highly regimented prison program with rigorous physical activity for offenders convicted of nonviolent crimes, which can reduce jail time. With shock incarceration, Fortuin would have been out in six months, Coleman said. “The D.A. didn’t want that,” she said of District Attorney David Soares.
Fortuin, 49, had been in Albany County’s jail since his arrest on Feb. 6, with bail set at $150,000, twice what the district attorney’s office had requested.
A Hilltown native and contractor, Fortuin burned the house at Saddlemire Road where he had grown up and later lived with his wife and children. The farm had been leased by his parents for a quarter of a century, and then was bought by another couple before Andrea and Kenneth Fortuin purchased it in 1997.
On Feb. 5, Kenneth Fortuin had felled trees to block firefighters from getting to his property off Street Road, and was in a standoff with police for hours. Using armored military vehicles, the police surrounded him in his pickup truck in a field near his house the morning of Feb. 6. He surrendered just after 7 a.m.
Soon after, fundraisers were organized — one for Kenneth Fortuin by Hilltown neighbors, and one for Andrea Fortuin by friends in Schenectady, where she had a yoga studio, which she recently closed.
Andrea Fortuin, who spoke to The Enterprise through her friend Renee VanKuren, said in February that she had been selling her share in the property on Saddlemire Road to Kenneth Fortuin, and a judge had set the closing date for Feb. 14; the papers had been drawn up.
Andrea Fortuin had previously declined making comment, saying she had promised her children they would stay out of the public eye. In court on Thursday morning, before the proceedings started, she told The Enterprise that to lie in court would be perjury and that, by reading her victim’s impact statement, she would at last be telling the truth to the world. “This is the end of a nightmare,” she said.
This week, she provided The Enterprise with police reports, pictures, and text messages that backed up the statements she made in court.
The session began just before 9:30 a.m. Coleman and the chief assistant district attorney, Cheryl Fowler, who prosecuted the case, approached the bench as Coleman asked the judge not to allow Andrea Fortuin to read her statement, claiming she was not a victim and she had ulterior motives. Coleman said that Kenneth Fortuin was well liked in his community and, having been suicidal, he depends on that support.
In open session, Fowler said Andrea Fortuin had the right to read her statement, as she had an interest in the property that was destroyed.
“It’s our position Mrs. Fortuin is not a victim either legally or in reality,” asserted Coleman, stating she had not lived in the house on Saddlemire Road for two years and that Andrea Fortuin is being paid in full with the restitution funds. If there is a victim, Coleman said, it was her client; what he regrets most was his treatment of the firefighters.
Judge Lynch said he would allow Andrea Fortuin to make her statement, as she was a property owner at the time of the fire “and clearly as a matter of law is a victim in this case.” Considering her a victim, he said no photographs of her could be taken.
Andrea Fortuin’s statement
Holding her written statement, Andrea Fortuin walked to the witness stand, wearing a print dress with a black blazer.
Her ex-husband, wearing an orange prison jumpsuit, was seated at a table before the bench. He listened to her statement with his head slightly bowed, his chin resting on the index fingers of his clasped hands, his wrists shackled.
“Many would have you believe that he just snapped or had a bad day,” Andrea Fortuin said, “but I believe this was an act of malice and hatred that had been planned out for some time.”
She said she knew him best for 23 years and he was a man of his word: “When he says he will do something, you can count on it — he will.”
Andrea Fortuin went on, “Over the past two years, as we navigated the divorce, he stated, and I quote, ‘I will burn the whole f---ing place down and you will get nothing — yes, nothing.’ True to his word, he did. This is just one example of the many threats he made to me and my kids through the years. Plain and simple, Ken is a bully,” she said.
Because of the resulting financial hardship, Andrea Fortuin said, she had to close one of her two yoga studios in which she provides “holistic wellness” for needy people like traumatized veterans and those suffering from substance abuse. “I’ve since closed one location, leaving many clients without services,” she said.
She also said that she both emotionally and financially supported her children while her ex-husband would not help; she said both of their children lived with her.
“When I left, he refused to help support our children...,” she said. “Having this settlement was going to bring much relief financially.”
As the Feb. 14 closing date approached, she said, she grew hopeful.
But then the events of Feb. 5 intervened. “We each received a text message from Ken, telling us what he was doing,” said Andrea Fortuin. “To me, he sent a lengthy rant” with a picture of the house in flames. To their son, she said, he sent a message with a picture of the horse barn fully engulfed.
Her voice broke with emotion for the first time as she described her “beautiful daughter” collapsing to the floor on seeing that picture.
The things he said by cell phone to his stepson, her son, who was at the scene, Andrea Fortuin said, are “unmentionable and most would say even unforgivable.”
After the fire, all of her children were anguished and embarrassed as the news reports played over and over, she said.
Finally, she spoke of the “betrayal we all felt as the community rallied around this man, holding a benefit to pay for his legal fees while I was now on the brink of bankruptcy and forced to pay mortgage payments on a house that no longer existed, a house that he destroyed, while unsure of how I would be able to support my kids.”
What was lost in the fire was far more than what was contained in the five burned buildings, she said.
Her children, she said, “felt abandoned not only by him but many of the family members and much of the community they grew up in.”
At this point, Fortuin’s narrative was interrupted. Coleman approached the bench to say the next part of the statement, of which she had a copy, dealt with crimes for which Kenneth Fortuin hadn’t been charged.
“I do know there was one incident with the State Troopers,” responded Fowler.
“I don’t think she has carte blanche,” said Coleman.
The judge had the court’s copy of Andrea Fortuin’s letter marked as Exhibit One, noting the portion the defense had objected to. The judge also said he had received 78 letters in support of Kenneth Fortuin that will be part of the proceeding, without any restrictions, and so denied Coleman’s request, telling Andrea Fortuin she could continue.
She did, saying that, for years, she “worked hard to protect Ken’s reputation.” She went on to describe a series of abuses.
“If his food wasn’t cooked just right, he would throw it,” she said. “He often broke things.” One day, she said, their son came home to find several of his guitars smashed.
“His threats had us all living on edge, like walking through a minefield,” she said.
“He also threatened to shoot various farm pets,” she said; the most damaging was when he told their then-12-year-old daughter he would shoot her beloved pony, she said.
She went on, “He also threatened he would kill me if I left him...On the day I finally did leave, he tried to make good on that promise.” Andrea Fortuin said that her husband reached for a favorite gun — a 9-millimeter pistol that he always kept loaded — which she had moved beforehand. (She surmised that was the very gun he had used to keep first responders at bay on Feb. 5.)
He said, “I have more,” Andrea Fortuin claimed; she ran from the house and called 9-1-1, she said. When police came to the house and asked if she wanted him arrested, she said “no,” Andrea Fortuin said, although his “arsenal” of guns was confiscated — 17 guns were listed on the Jan. 15, 2012 police report — and she got an order of protection; one year later, he got his guns back.
“I didn’t want my kids to see their father hauled off in handcuffs,” she said.
“I’ve been very quiet about what went on behind the scenes in our family for years,” said Andrea Fortuin.
She went on, “When Ken was drunk and angry, he was dangerous...The only thing the community saw was the model of a man who was so wronged because his wife left him. The events of February fifth and sixth were inevitable. He didn’t do this because I left. I left because I knew this or something like this was going to happen...Ken held us all financially and emotionally hostage. And I take no pleasure in seeing him self-destruct. I have forgiven and must move on...”
Cheryl Coleman’s rebuttal
Both lawyers then made brief statements on the plea deal. Fowler said the negotiated plea was “a quick turnaround” for several reasons. One, she said, was “the negotiations were very favorable for Mr. Fortuin based on his quick...accepting of responsibility.” She also noted, “Part of the plea bargain called for restitution,” and he was waiving shock incarceration.
After the details of the restitution were gone over, Coleman launched into a passionate statement in defense of her client, as a reaction to his ex-wife’s statement.
“I seldom ask to be heard in the event of a negotiated plea,” she said.
Coleman went on, “As someone who, many years ago, went through a bad divorce, I can only say that anyone who hasn’t been through one doesn’t really understand what just happened and anyone who has been through one knows exactly what just happened.” While Coleman said her client took responsibility for his actions, she went on, “It can’t be looked at in a vacuum.”
She asked, “What happens to a person... when his spouse systematically takes away from your financial ability, your dignity, and then uses the things you love the most to hurt you?”
Coleman said her client “denies 100 percent the vicious and baseless allegations made.”
She also said, “When 100 people say you’re a jerk, maybe you’re a jerk.”
She contrasted this with the 200 people she said had stood up for her client, attending a fundraiser and writing letters in his support.
She called his Hilltown supporters “salt-of-the-Earth people.” In a close community, she said, “They know what he went through. They know what he was subject to.”
Coleman went on to say that they knew what happened on the night of Feb. 5 was “an act of self-destruction.”
“When your ex-wife degrades you, first by flaunting an affair, and secondly, after the split, refusing him access to his children, who he continued to support...” Coleman alleged.
Andrea Fortuin said this week, “There was no affair. I left Ken because of the issues between Ken and I.”
Coleman went on, alleging that Andrea Fortuin had said “awful, horrible things” to her ex-husband. She said her client, for example, was hurt when his trips with his daughter to Home Depot that he had treasured were described to him by his ex-wife as something their daughter merely endured, being forced by her mother to go.
Coleman described what she called an “extortion-type e-mail” she said Andrea Fortuin had sent to Kenneth Fortuin’s family, saying that, if he didn’t accept a plea bargain, “she would publicly trash him. And, as you see, she did that anyway,” said Coleman. “We get it. It was always going to happen.”
Andrea Fortuin showed that e-mail to The Enterprise this week; it was a lengthy description of unfolding events from her point of view, containing no threats.
The part of the e-mail dealing with the plea bargain reads: “I spoke with District Attorney Cheryl Fowler this week. She needed to let me know what the charges were and wanted to know if I had anything to add or if I thought what she was offering as a plea was acceptable. My response to her was that I am not going to push for anything, nor am I going to stand in the way. I am going to concentrate on me and my kids.”
Coleman told the judge her client’s acts were “a culmination of a feeling you’ve got nothing to live for.” She said her client had tried counseling to stop his self-destructive thoughts, but to no avail.
“What finally happens when he gets up the nerve, he gets himself good and drunk. He sets the place on fire and he takes that gun and tells everybody in a series of texts he’ll put it to his head.”
Coleman said his message was: “The only decision I have left is whether to put this gun in my ear or my mouth.” The only reason he didn’t pull the trigger, she said, was because of the people who cared about him.
“The people who cared about him — and they’re here — saved his life that night,” said Coleman. “It was only the caring of the people who tried to pull him up against this pulling down. He’s a stand-up guy. He’s a tender guy.”
Coleman went on about Andrea Fortuin, “She can say what she wants. It’s not true.” Referring to the 45 people in the gallery, Coleman went on, “A hundred-plus people are here, Your Honor, to give support to what is true.”
Coleman concluded, “She can’t hurt him anymore…I think she almost killed him. And I’m glad he’s alive and we know he’s going to thrive at the end of this.”
Ken Fortuin’s statement
Kenneth Fortuin put on glasses in order to read his statement. He faced the judge but addressed the crowd behind him, saying, “Thank you all for coming and supporting me.”
To the judge, he said, “Thank you for treating me as a human being.”
He went on, “I’m sorry for letting down so many people. Some of them are right back there now: friends, family, customers who have become friends, and also you, sir...”
His voice low and even, Kenneth Fortuin continued, “What I did was horrible. I destroyed the family farm that my siblings and I — there are eight of us — grew up at. I destroyed the farm where Andrea and I raised three unbelievable children. I felt I was alone with what I was dealing with, that I was the only one who had ever been there. I have learned that I was so wrong.”
Fortuin said he hired “a great therapist” to help him while he was in jail and the therapist is now using Fortuin’s story to help others, and Fortuin himself may speak about his experience to “help even more guys.”
“I know what I did that night was wrong. I was dealing with a lot of pain and anger,” he said. “I allowed Andrea and her negativity to take space in my head and poison my good and positive thinking. Her negativity is not going to influence me anymore.”
He said of his children, “They are the core of my life…I miss them very much…Hopefully, they will soon have the desire for me to be back in their life...I firmly believe that they need their mother; because of this, I would never do anything to hurt her...I had convinced myself they did not need me.”
Kenneth Fortuin said of burning their house on Feb. 5 that he did everything he could think of to keep people from getting physically hurt. “The only one I wanted to hurt was me...,” he said. “I lost nearly everything except the clothes on my back and my pickup truck.”
He also said of Andrea Fortuin, “I wanted to get back at her financially. The way she would have lost out is if I had actually pulled the trigger that night. She has since got her money and, again, I am the only one that was hurt....I lost everything I have ever worked for and loved and, trust me, I worked harder than most. Just ask the people back there behind me.”
Fortuin said he had planned to kill himself and even left a note for one of his brothers on where to spread his ashes. “And I texted my kids good-bye,” he said through tears.
After he regained his composure, he went on, “I’m not exactly sure why, but I couldn’t follow through with it. All I can think is that, thankfully, there was a higher power there that followed me as I watched what I had done. He settled me as I was bawling my eyes out and my handgun was pressed against my head.”
Since being in jail, Fortuin said, he had become friends with a woman in Arkansas who writes him every week or more and gives him spiritual support.
“When God pushes you to the edge,” Fortuin said, reciting the advice he had gotten in one of her letters, “trust Him fully because only one of two things can happen: Either he will catch you when you fall or teach you to fly.”
Fortuin repeated the frequently quoted aphorism, then said, “Wow...”
“God must have caught me on that night and now he is teaching me how to fly,” said Fortuin, sniffling.
It was awkward for him to wipe his tears, since his wrists were manacled together; he raised both hands to wipe his face.
“This whole experience will make me stronger...I will be climbing that ladder and climbing all the way to the top with my head held high,” he said.
“I had no idea there would be such a big showing...Thank you all for the support,” Fortuin concluded, his words swallowed by applause from his backers.
After the judge pronounced his sentence, Fortuin was escorted out of the courtroom to more applause as one supporter called out, “Love you, man.” Those who clapped were not smiling. Some wept; others wore looks of regret or sorrow.
Outside in the hallway, Coleman, whose legal career has also included being a prosecutor and a judge, said, “I’ve never seen anything like this in 28 years.”