A North Tonawanda man is headed to prison for six years for a brutal beating that left a man with permanent brain damage.
The judge who sentenced him said she wished she could have imposed a harsher punishment. And she could still get that chance.
Niagara County Judge Sara Sheldon said Wednesday that she would have preferred to impose a life sentence on Devin J. Gamble, who repeatedly kicked a stranger in the head Nov. 30 at Oliver and Robinson streets in North Tonawanda.
The 57-year-old man is permanently brain-damaged and has undergone multiple operations after every bone in his face was broken in the attack, his longtime girlfriend said in court.
"This case should be a life sentence. In essence, you killed this man," Sheldon told Gamble. "Unfortunately, I cannot give you the right sentence."
Sheldon sentenced Gamble to six years behind bars and three years of post-release supervision. But Mary Jean Bowman, Niagara County second district attorney, said that if the victim dies, a superseding indictment for murder could be sought if it's shown the death was "a direct result of the assault."
Bowman said there's a specific exemption in the double jeopardy law that would cover a case like this.
Gamble, 20, of East Robinson Street, North Tonawanda, said he couldn't remember the incident because he was drunk and on drugs.
A surveillance video camera at a nearby restaurant recorded part of the attack by Gamble and Eugene V. Guerra IV, 24, of Olean, who is serving four years.
"You can hear the witnesses shouting, 'Devin, no! Devin, no!' " Bowman said in an interview.
Gamble and Guerra were allowed to plead guilty to second-degree assault without waiting to be indicted.
"I take full responsibility for what happened," Gamble said.
The victim's girlfriend said she hasn't been able to find a nursing home that will take the man, a North Tonawanda resident who at the time of the attack was an unemployed construction worker taking handyman jobs.
"Due to the severe brain injuries, he is not able to speak or comprehend," said the girlfriend, who asked not to be identified because of fear of reprisals, based on Facebook posts by friends of the assailants.
She said she has recently learned the man has contracted another in a series of brain infections that would require surgery. She said she is considering whether to allow the surgery or simply let doctors make her boyfriend as comfortable as possible.
"I don't want to give up hope," she said.
"Punishment is deserved. My client knows that," defense attorney Michael Seibert said. "The video is clear and so is my client. He kicked him in the head."
"I pray every Sunday the man is going to pull out of it," Gamble said. "God is on his side."