The attorneys for the man accused of shooting and killing in the driveway of his Washington County home area asking that the jury be allowed to consider a charge with a lesser sentence.

Kevin Monahan, 66, is charged with second-degree murder in the death of Kaylin Gillis last April. Gillis was a passenger in an SUV that had gotten lost in his driveway.

His attorneys filed a motion Monday asking that the jury be allowed to consider the charge of criminally negligent homicide. That charge carries a maximum sentence of 1 1/3 to 4 years in state prison compared with a maximum of 25 years to life for second-degree murder.

They state in their motion that the law requires the court to let the jury consider criminally negligent homicide as a lesser included offense.

Monahan’s lawyers wrote that no one disputed his claims that the second shot was accidental.

“None of the witnesses for the People testified they saw the specific circumstances which resulted in the shotgun discharging the second shot,” they wrote. “This is a vital point. Mr. Monahan was the only witness who was in a position to see and know how the fatal shot was fired.”

Monahan testified that he tripped over some nails in his deck and in the process of trying to stop his fall, the gun either struck either a vertical post or the horizontal railing which goes around his deck and discharged. His finger was not on the trigger.

The motion went on to say: “The people failed to present any testimony or other evidence which could have contradicted Mr. Monahan’s description of how the second shot was fired. Mr. Monahan’s testimony regarding the accidental discharge of the shotgun is uncontroverted.”

Upon cross-examination, prosecutors did not present any witnesses to rebut Monahan’s account, his attorneys added.

In addition, prosecutors presented testimony from a New York State Police gun expert that the gun fired without the trigger being pulled. This happened during one of the tests that Victoria O’Connor, of the State Police Forensic Investigation Unit, performed on Monahan’s gun.

However, O’Connor could not recall whether the safety was on or off during that test.

DA’s Office responds

In its response to the defense counsel’s motion, the Washington County District Attorney’s Office said Monahan was “reckless” and not “negligent” when a slug from his shotgun killed Gillis.

First Assistant District Attorney Christian Morris opposes the defense motion, writing: “not only did the People establish that the Defendant intended to fire the weapon when he aimed at their vehicles and shot twice, the Defendant himself testified that he intended to fire the weapon when he fired a warning shot and was prepared to fire another round if the vehicles did not leave his property.”

State law defines criminally negligent behavior as “failing to perceive a risk” that death will occur. Reckless behavior – the theory of law Monahan is charged with violating – is defined as being aware of a risk of death and “consciously disregarding” it.

Judge Adam Michelini will decide if the jury will be allowed to consider criminally negligent homicide.

Closing arguments are expected to take place Tuesday after a postponement on Monday due to an illness.