Updated: 11/13/2013 6:03 PM
Created: 11/13/2013 12:25 PM WNYT.com
By: Mark Mulholland
QUEENSBURY - Opening arguments began Wednesday, in the trial of a man accused of killing his 15-month-old son.
Gary Waite is being tried on second-degree murder and second-degree manslaughter charges.
Waite wore a gray suit coat, brown shirt and a tie for the first day of his trial.
The 29-year-old is accused of taking the life of his 15-month old son, Jesse Smith. It happened February 13, 2012 in Waite's Orville Street apartment.
He's accused of causing a massive brain injury to the child, who died two days later at Albany Medical Center Hospital.
Several witnesses were called to testify on Wednesday. The first one was a 911 dispatcher who was on the stand as prosecutors played the recording of the call for help. A child could be heard gasping for breath.
A Glens Falls firefighter, Mickey Guy, testified the child was “completely unresponsive” and immediately thought there was a severe head injury that required transportation to the hospital.
Waite is not charged with intentional murder, but rather with acting with depraved indifference to human life. His attorney, Marc Zuckerman telling the jury during opening arguments, that Waite tried to help his injured son. "The defendant was trying to comfort him, put ice on him, called his mother," said Zuckerman. "You will hear evidence over and over again that the defendant had concern and tried to reach out for help."
Zuckerman also told the jury that several people cared for the little boy before the injuries were reported, raising the possibility that someone else may be to blame.
"The evidence will clearly show that whoever did this, it's not murder," said Zuckerman.
Police say Waite told them he threw the child onto a couch and he bounced off and hit his head on the metal leg of a chair.
During her 20-minute opening argument, Warren County District Attorney Kate Hogan told the jury, "That injury took a lot more force than throwing a kid against a padded couch and having him hit the ground."
"This was a brutal, violent death," Hogan said.
Hogan told jurors that Waite caused a series of injuries to his defenseless son.
"It wasn't the only blow to this child. There were others," she said. "Little did he know that the man who gave him life was going to take his life that day."
In all, 5 witnesses testified on this first day, including Waite's neighbor, Thomas Umberg, who said he was walking his dog when he heard noises coming from 3 Orville Street.
"Once I heard the bang, I heard a scream. Terrifying, like a kid in anguish," testified Umberg. "I heard another bang... it sounded like someone was carrying a couch and dropped it on the wooden floor."
Judge John Hall told the jury that he expects the trial will take two weeks. Testimony will resume Thursday morning at 9:30.