Murder charge out in tot death case

A judge has granted a defense motion to dismiss a second-degree homicide charge against a Glens Falls man accused of killing his 15-month-old son in February, according to lawyers involved with the case.

Warren County Judge John Hall Jr. ruled Thursday that Gary Waite, 28, did not show "depraved indifference," a key element to proving the charge of second degree homicide against a defendant.

Warren County District Attorney Kate Hogan said Friday her office plans to appeal the decision.

The Appellate Division in Albany could either affirm Hall's ruling or reverse it, in which case, the second-degree homicide offense would be reinstated. No trial date has been set.

Waite's attorney, Marc Zuckerman of Bolton Landing, lauded the ruling.

"We're happy with the decision, it was the correction legal decision, and the judge divorced himself from the popular opinion, and focused on the law," said Zuckerman.

The lawyer contends that his client made phone calls and sent texts to his mother and sister in a bid to get help for the boy. Once his sister came over, she told Waite to call 911 for help, but after dialing the number, he was too distraught to speak, and handed the phone to her to talk to the dispatcher.

"The fact that Gary picked up the phone and called is enough to take it out of depraved indifference," said Zuckerman. "If a person shows any concern at all, it's not depraved indifference."

The defendant still faces a charge of felony second-degree manslaughter and endangering the welfare of a child, a misdemeanor. If convicted of the manslaughter offense, he faces 5 to 15 years in prison, while the second-degree homicide conviction would carry a sentence of 25 years to life, according to Zuckerman.

Police have alleged that Waite threw his son Jesse Smith onto a couch, causing the child to fall off and hit a hardwood floor. Jesse died Feb. 15 at Albany Medical Center Hospital after police said Waite inflicted skull factures and brain injuries on the child.

Zuckerman said his client, who has pleaded not guilty to the charges, maintains his innocence.

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