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Judge denies Gouverneur man’s second attempt at dismissing murder charge

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CANTON — The Fort Drum man charged in the death of an infant has had his second request to have murder charges against him dismissed shot down again.

St. Lawrence County Public Defender Stephen D. Button filed a motion on Dec. 13 to dismiss the charge against his client, Gary L. McKenzie II, 22, of 154 Hailesboro St., Apt. 26, Gouverneur, less than two weeks after Judge Jerome J. Richards denied a similar motion.

McKenzie is charged with second-degree murder, second-degree manslaughter, a class C felony; reckless assault of a child and endangering the welfare of a child, a class A misdemeanor.

“The new motion, returnable on Jan. 6, 2014, contains many pages of already-filed or disclosed documents, as exhibits to defense counsel’s affidavit,” Judge Richards wrote in his denial. “Since the time of the original motion and order, there has been a change in the administration of the district attorney’s office, and defense counsel became aware of recent appellate case law treating the subject of depraved indifference homicide. The cited case law does not compel a different result.”

McKenzie 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. In his motion to dismiss, Mr. Button cited the lack of proof supporting the element of depraved indifference.

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.

Judge Richards wrote that in both denials issued by the court is evidence that was “legally sufficient to support each of the charged crimes,” specifically with the murder charge.

“The evidence … provided competent evidence which, if credited by the grand jury, gave reasonable cause to believe that defendant acted with depraved indifference to the life of the child,” Judge Richards wrote. “The prosecutor gave exact and accurate legal instructions to the jury defining the nature of the conduct of the actor’s required mental state under each of the charged crimes.”

Both former St. Lawrence County District Attorney Nicole M. Duve and current DA Mary E. Rain acted in good faith to obtain documents that Judge Richards said were “relevant and necessary in this case.”

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