ELIZABETHTOWN - An Essex County judge has refused an attempt to dismiss an indictment against a man who fatally shot a fellow hunter last fall.
Judge Richard Meyer told 44-year-old Michael Smith of Lake Placid that it's up to a jury to decide whether he took a "unjustifiable risk in opening fire into thick brush at an uncertain target when he didn't know where his friends were located."
In November 2008, Smith was hunting with Leo Hickey, Kevin Straight and his brother Mark Smith in the town of Keene. An investigation found that during a deer drive, Smith shot at what he thought was a deer and struck 35 year-old Hickey in the head, killing him.
Hickey was a native of Keene and had only recently moved to Elizabethtown at the time of the accident. He was the son of Keene Town Justice Constance L. Hickey and retired state Trooper Tom Hickey.
In a ruling issued Oct. 13, Meyer upheld the charge of criminally negligent homicide. Smith and his attorney, Essex County Public Defender Livingston Hatch, tried to argue that there was insufficient evidence to support the charges against him.
In his decision, Meyer cited past case law, stating that as a hunter it was Smith's charge to properly identify the surrounding environment and his target before firing.
According to the Adirondack Daily Enterprise and court documents, Smith thought he had targeted a deer.
"I thought I saw the brown part of the back of its head, I thought the deer had turned away and started moving away from me," Smith's statement reads. "I believed this was my only chance to shoot this deer and I believed I was aiming at the back of the head and fired one round."
After five minutes, Smith approached what he thought was a deer, finding Hickey instead.
A hearing is scheduled for Nov. 6 in Elizabethtown regarding the admissibility of unspecified evidence. That hearing will respond to an attempt by Smith to suppress statements given to the police.
At the time of the accident, Smith was also wanted in New Hampshire on felony drug charges.
Essex County Assistant District Attorney Michael Langey is handling the case for the prosecution.