Attorney argues for murder charge to be tossed in death of 15-month-old

Posted at: 09/11/2012 5:39 PM | Updated at: 09/11/2012 5:51 PM
By: Mark Mulholland

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QUEENSBURY - He's 28 years old and he's accused of murder.

Gary Waite was indicted in the February death of his 15-month old son, Jesse Smith. Prosecutors contend that Waite assaulted the child at his Glens Falls apartment because he wouldn't stop crying.

"I love him. That's my baby boy," said a handcuffed Waite outside of the Warren County Courthouse.

Waite was charged on a murder count that alleges depraved indifference to human life. His attorney argued to get that charge tossed out, saying courts have ruled that depraved indifference is equal to torture or brutality.

"They defined depraved indifference as activity that shows like prolonged torture or extreme brutality or wanton cruelty," said attorney Marc Zuckerman. "And it's just not in this case."

The District Attorney begs to differ.  Kate Hogan says Waite abused the child over the several hours, then failed to get help for him. "This defendant, with pure heartlessness and callousness, watched a child deteriorate and as the doctor describes 'begin the death process.' And he did nothing for it."

Waite wiped tears from his eyes in court. A judge will decide if the murder charge stands. Waite is also charged with manslaughter.

Relatives of Jesse Smith were in court for Tuesday's hearing. They say they plan to be there every step of the way as a way to honor the child's memory.

"He was the best baby ever. The best baby you could ever ask for. He didn't deserve anything," said Tammy Rivers, Jesse's grandmother.

The child's family is planning a public birthday party for him at St. Paul's Cemetery in Kingsbury on Halloween. Jesse Smith would have turned two that day.