CANTON The Fort Drum man charged in the death of an infant is seeking to have murder charges against him dismissed.
Gary L. McKenzie II, 22, of 154 Hailesboro St., Apt. 26, Gouverneur, is charged with second-degree murder, a class A-1 felony; second-degree manslaughter, a class C felony; reckless assault of a child, a class D felony, and endangering the welfare of a child, a class A misdemeanor. He is accused of throwing 7-month-old Braylin W. Chambers to the floor, causing an inoperable brain injury including hemorrhaging, at 1:39 a.m. July 16.
Arguments were to be held Thursday in St. Lawrence County Court between McKenzies attorney, St. Lawrence County Public Defender Stephen D. Button, and District Attorney Mary E. Rain regarding a Dec. 13 motion filed by Mr. Button seeking dismissal of the murder charge, citing the lack of proof supporting the element of depraved indifference.
Ms. Rain submitted her written response to the motion to dismiss Thursday morning to County Judge Jerome J. Richards.
Under Penal Law 125.25(4) a person is guilty of second-degree murder when under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven-years-old and thereby causes the death of such person.
Mr. Button argued in his motion that McKenzie contacted 911 dispatchers following the alleged incident and performed CPR for about 8 to 10 minutes at their direction until he was relieved by state police and EMTs.
The facts, as presented to the grand jury, support the position that the defendant immediately recognized that the child was in distress and contacted the appropriate authorities without delay, Mr. Button wrote.
Mr. Button wrote that the grand jury testimony of Dr. Laura Knight, who prepared the autopsy report on the infant, and Dr. Donald C. Schuessler Jr., E.J. Noble Hospital medical director, indicated that prior injuries suffered by the child were not a part of a systematic pattern of abuse, but rather were separate and distinct from the injury that ultimately resulted in the childs death.
Mr. Button added that the evidence against McKenzie cannot reasonably be construed to demonstrate a state of mind that is wicked, evil or inhuman, citing case law.
All reasons, he argued, why the charge should be dismissed.
But Ms. Rain said Mr. Button brought this identical motion before the court on Nov. 19, to which the court ruled evidence was legally sufficient to support each of the charged crimes.
Ms. Rain wrote, Addressing the issue of depraved indifference the court noted, the observations of Dr. Schuessler and of Dr. Knight all provided competent evidence which, if credited by the grand jury, gave reasonable cause to believe that the defendant acted with depraved indifference to the life of the child.
Ms. Rain wrote that she was requesting the court again deny the motion based upon its November ruling and that there was legally sufficient evidence presented to the grand jury.
Judge Richards reserved his right to submit his decision in writing at a later date.