QUEENSBURY -- Pretrial hearings scheduled for Friday in the case of a Glens Falls man accused of killing his toddler son were postponed as the defense and prosecution await a ruling on the murder charge in the case.

Gary L. Waite was scheduled to appear in Warren County Court, where Judge John Hall would decide whether his statements to police would be admissible at trial and whether police legally searched his home.

Instead, those hearings were postponed as Hall considers a motion filed by Waite’s lawyer, Marc Zuckerman, to dismiss the second-degree murder charge.

Waite is not accused of intentionally killing the boy, 15-month old Jesse Smith.

Court records show he told police the boy fell and hit his head on a chair leg, then when he would not stop crying, Waite tossed him onto a couch and the toddler bounced off and landed on a hardwood floor.

A doctor with whom the Warren County District Attorney’s Office consulted concluded the injuries did not match Waite’s version of events, District Attorney Kate Hogan said last month.

Zuckerman has questioned whether the evidence is legally sufficient to support the charge that Waite exhibited “depraved indifference to human life” leading up to the death.

Hall’s ruling is expected next week, with the hearings to be rescheduled once the decision is issued.

If the murder charge is dismissed, a lesser count of second-degree manslaughter would remain. A dismissal could result in a prosecutorial appeal though, which would result in the case being stayed.

Second-degree murder is punishable by up to 25 years to life in prison, while second-degree manslaughter brings a sentence of up to 15 years.

Trial in the case is scheduled to begin Oct. 29. Waite is being held in Warren County Jail without bail.

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