QUEENSBURY -- The Glens Falls man accused of killing his 15-month-old son has refused a plea offer that would require him to plead guilty to murder, and a trial has been scheduled for October.
Gary L. Waite will not plead guilty in the case, because he is “adamant that he is innocent,” his lawyer, Marc Zuckerman, said Wednesday.
A pretrial hearing in the case was held Tuesday, and Zuckerman said he was advised by the Warren County District Attorney’s Office that prosecutors would require a plea to second-degree murder and would not consent to a plea to a reduced count of manslaughter.
Warren County Judge John Hall scheduled a trial to begin Oct. 21, with a pretrial hearing scheduled for Oct. 17. That hearing will focus on the admissibility of the written statement Waite gave to police in the hours after Jesse Smith was hospitalized with a severe head injury on Feb. 13, 2012. The child died two days later.
In the statement, Waite is quoted as telling Glens Falls Police the boy fell and hit his head on a chair leg in Waite’s Orville Street apartment, and that Waite threw him on a couch when he became frustrated that the boy wouldn’t stop crying. Waite told police the toddler bounced off and hit his head on a wood floor, according to court records.
Waite is charged with second-degree murder under a theory of law that alleges he showed “depraved indifference to human life” in causing the death of another person. He also faces a felony count of second-degree manslaughter and misdemeanor count of endangering the welfare of a child.
The depraved indifference statute has been complicated by court rulings in recent years that have toughened the standard for the charge, so that prosecutors have to show the defendant had no concern for the victim.
Zuckerman argued Waite’s calls to a relative for help showed he had concern for the child, and Warren County Judge John Hall dismissed the murder count last fall.
But the Warren County District Attorney’s Office appealed that ruling and the Appellate Division of state Supreme Court overturned it and reinstated the murder count last week, finding there was sufficient evidence to support the indictment.
Warren County District Attorney Kate Hogan said her office is prepared for trial in the case and believes it can prove the murder charge. Her office has pointed to medical evidence that prosecutors believe contradicts Waite’s version of events and indicates more force was used to cause the boy’s injuries than would have occurred through the falls Waite described.
Zuckerman, though, said he does not believe there is sufficient evidence to prove the murder count. And if Waite is convicted, the depraved indifference finding will be an issue on appeal.
“With the facts as they are, even if you believe the prosecution’s theory of what happened, which my client disputes, it doesn’t rise to the level of depraved indifference,” Zuckerman said.
He said the state Legislature needs to rewrite and clarify the depraved indifference statute. Hogan and the state District Attorney’s Association have been pushing the state Legislature for changes to the law.
“Right now, every judge has a different opinion on what the law is,” Zuckerman said.
Waite is being held in Warren County Jail, pending further court action.