ALBANY, N.Y. - Gary Lee Waite was originally charged with murder, after his 15-month-old son died last year. Months later, that charge was downgraded to manslaughter, but officials now say the Glens Falls man will face a second degree murder charge after all.
The Appellate Court has agreed with the Warren County District Attorney's Office, that a judges decision to dismiss the original murder charge was wrong. It is now reinstated.
Gary Waite will face a second degree murder charge in the death of his 15 month old son, who died from severe head injuries in February 2012. Waite's attorney Mark Zuckerman disagrees with the ruling.
"Gary Waite showed that he cared because as soon as he was made aware of the injuries, as soon as he was able to discern that the child was that kind of injured. You know he called for help right away twice," said Zuckerman.
According to police Waite admitted he threw Jesse Smith across the couch causing him to strike his head on the floor, after becoming frustrated with his crying.
In a statement on the decision to uphold the murder charge, Warren County District Attorney Kate Hogan said, "The defendant had exclusive control over the child who was healthy when placed in his care. The child's injuries were substantial and according to the medical experts not consistent with accidental cause. In fact the expert said that this head injury was consistent with a car crash at 60 mph with no seat belt or being dropped from a 10 story building."
Still, Zuckerman says his client maintains that he is not guilty.
"He's adamant about his innocence," said Zuckerman. "He didn't commit this crime."
Well known Albany attorney, Terry Kindlon, who is not working on the case, says the murder charge is going to be a tough one to prove.
"Indicting this case as a murder case is a bit of a stretch to begin with," Kindlon said. "The appellate division in its decision actually says the DA may have a difficult time proving this case at trial."
Hogan says she looks forward to putting the evidence before a Warren County jury. Zuckerman says he's confident his client will be acquitted. A trial date has not been set yet.