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Jury deliberates fate of man accused of killing toddler son

Updated: 11/19/2013 7:17 PM
Created: 11/19/2013 6:24 PM WNYT.com
By: Mark Mulholland

Jury deliberations resume Wednesday in the trial of Gary Waite. He's accused of killing his 15-month-old son.

The jury is deliberating two felonies: manslaughter in the second degree and murder in the second degree, accusing Gary Waite of acting with depraved indifference.

Waite is not accused of intentional murder.  Prosecutors contend the 30-year-old Glens Falls man acted with depraved indifference when he allegedly attacked his son, Jesse James Smith in February of 2012. The child died a couple of days later of a severe brain injury.

District Attorney Kate Hogan called about two-dozen witnesses, including medical experts, all supporting the people’s contention that Waite didn’t care whether his son lived or died.

“The injury that man inflicted on that child was so violent that it didn’t just cause a fracture. It caused his brain to be immediately damaged,” said Hogan.

During Hogan's closing argument, she showed the jury of eight men and four women an autopsy photo of the 15-month old child.

Waite's attorney, Marc Zuckerman asked the jury to set aside the emotion of the case and consider only the law as it relates to depraved indifference.

Even admitting to the panel that his client is guilty of a crime, but not murder.

“It is more likely from the evidence that you’ve heard, that Gary Waite had an explosion of temper…lashed out and truly hurt his child, then when he realized what he had done, his legitimate concern took over? I'm going to say he committed a crime but it wasn't murder,” Zuckerman told the jury.

Hogan countered that Waite delivered repeated blows to his vulnerable child's head and then failed to get medical attention for him because he knew he'd be in big trouble.  Calling Waite's claim that he didn't know how severely his son was injured, “mullarkey”.

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