QUEENSBURY -- Warren County Judge John Hall on Thursday dismissed the second-degree murder charge filed against a Glens Falls man accused of killing his 15-month-old son earlier this year.
Hall ruled that there was not sufficient evidence that Gary L. Waite exhibited “depraved indifference to human life” through his actions in the hours before Jesse Smith was hospitalized with a serious head injury Feb. 13.
The dismissal does not end the case against Waite, since lesser charges of second-degree manslaughter and endangering the welfare of a child were not affected by the ruling and remain pending. Waite remained in Warren County Jail without bail.
The Warren County District Attorney’s Office -- which had contested the motion to dismiss -- can appeal Hall‘s dismissal, and District Attorney Kate Hogan has indicated an appeal will be pursued. Hall adjourned the case without date to allow prosecutors to pursue an appeal.
Waite, 28, has not been accused of intentionally killing the toddler, who died two days after he was hospitalized. He told police the boy fell and hit his head on a metal chair leg, and when he would not stop crying, Waite tossed him onto a sofa but he bounced off and hit his head on a wood floor.
Prosecutors have contended the injuries are not consistent with Waite’s version of events.
Waite’s lawyer, Marc Zuckerman, had asked Hall to dismiss the murder count because he believed Waite’s actions did not meet the legal standard of depraved indifference to human life that the murder charge required.
Hall found that the evidence showed that Waite telephoned the child’s mother -- from whom he was estranged -- expressing concern that the boy had fallen asleep after hitting his head, and that he sent a text message and made a phone call to his mother expressing concern about the child’s condition, the last of which prompted the mother to go to Waite’s home.
Hall wrote that the case law on the issue required the dismissal, since the evidence did not seem to show that Waite did not care about the boy’s welfare. The prosecution must show “utter indifference” and that he “did not care at all” about the victim, the judge wrote.
“The court finds that the people (prosecution) did not make out a prima facie case establishing that the defendant did not care at all about his child,” the judge wrote in an eight-page ruling. “The grand jury (that indicted Waite) had no reasonable cause to believe that the defendant acted in a way that could establish the essential element of depraved indifference.”
What constituted the legal threshold of depraved indifference has been in flux in New York for several years as mid-level appeals courts and the Court of Appeals heard cases on the issue, and Hall recommended in his decision that the state Legislature “consider amending” the law to clarify it.
Zuckerman said he agreed with the decision and said it took courage for Hall to dismiss the charge under the circumstances. He said he believed the Appellate Division would affirm the ruling on appeal.
“Legally, I think the manslaughter charge fits the facts as alleged better,” he said.
Hogan could not be reached for comment Thursday.
But she said earlier this week that her office planned to appeal the ruling to the Appellate Division of state Supreme Court in the event that Hall dismissed the murder charge, and believed that an expedited appeal could be heard in less than a month.
There is a stark difference between potential penalties for second-degree murder and second-degree manslaughter.
The former charge can bring a sentence of up to 25 years to life, while the latter is punishable by up to 5 to 15 years in state prison.