TOWN OF OSWEGO (WSYR-TV) - A bartender assaulted last summer in Oswego County is angry that the men who pleaded guilty in her case will likely serve less than a year in jail.
Prosecutors blame the legal system, saying their hands were tied. But, the case has inspired state lawmakers to propose changes to criminal law.
Jennie Fullington recalls her final shift last summer at Malone's Irish Hideaway as a quiet night, until it was time to close.
"They asked for a drink, a final round. I told them that I could no longer serve, that it was after 2:00 a.m.," she recalls. "They started calling me a bad bartender, worthless."
She identifies three people as the source of her troubles that night, Dan, Dustyn and Roberta Kidd.
As Fullington's boyfriend and a customer came to her defense, she says the mood turned violent.
"I came around to try and break it up," she says.
While the men were distracted with their own altercation, surveillance video shows Fullington scuffling with a woman she identifies as Roberta Kidd.
Suddenly, all attention turned toward the young bartender.
"When there are multiple people hitting you and you get hit from the back with a boot, you don't know what hit you," she says. "When I watched the video for the first time, I was shocked."
Fullington says her injuries required surgery, brought back side-effects of epilepsy...and months later she is still feeling the symptoms of assault.
"I've had seizures. I've passed out since that. My brain function is not up to par," she adds.
Fullington assumed the three people charged in the case would face years in prison for felony-level gang assault. But over time, the charges for Dan and Dustyn Kidd were settled with a misdemeanor of third-degree assault.
Roberta Kidd's charge was reduced to harassment, a violation that could lead to a fine, with no guarantees of jail time.
Oswego County District Attorney Gregory Oakes knows Fullington isn't pleased with the outcome.
"The law doesn't always match up to common sense and as a prosecutor I have to follow the laws as they are written, as they've been interpreted by the courts, and unfortunately, that doesn't always allow me to get full justice for the victims," Oakes says.
While a felony gang assault charge would carry several years in prison, Oakes says it basically requires proof of a life threatening injury, permanent disfigurement or permanent damage to an organ.
In general, he says a defendant's prior criminal history couldn't even be considered under the current law - until the sentencing phase.
Oakes feels he was cornered into a plea deal, in which the men agreed to a one year sentence, but will likely be released after about eight months in jail for misdemeanor third degree assault.
"To me that should be punished as more than simply a misdemeanor," Oakes says. "When two or more people gang up on an individual, there is no idea for a fair fight."
He says the issue surfaces every year and his office is currently working on a couple of similar cases.
So, the D.A. reached out to NYS Assemblymen Bob Oaks and Will Barclay and Senator Pattie Ritchie to propose another tier of crime, with a lower threshold for injuries when someone is attacked by multiple people. His idea is a Class E felony of aggravated assault in the third degree, with a maximum four-year sentence.
The new charge, if approved by legislators, would give prosecutors room to push for tougher penalties in more cases with serious injuries.
Oakes says there have been similar proposals before, but they haven't made it all the way to the governor's desk.
Even if the legislation is approved this time, it would be too late for Fullington's case.
"He doesn't discriminate. He'll pick a fight with a guy. He'll pick a fight with a girl," she says of one attacker. "Why shouldn't I be nervous?"
As part of their plea deal, Oakes says the men must pay about $8,200 in restitution. They'll be officially sentenced on March 20.
Roberta Kidd's charge was dropped to harassment. She's in court on March 13.
Watch the video above to see a portion of the surveillance video from the night of the assault.
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