Erie County Sheriff Timothy B. Howard and some of his deputies are asking a judge to go easy in sentencing Kenneth P. Achtyl, the former deputy who broke the nose of the Buffalo Bills fan who swore at him and then lied about the arrest in official documents.
They have written to Jorge S. de Rosas, the Orchard Park town justice who will announce his punishment against Achtyl on Thursday evening.
Howard wrote his letter back in December.
"I ask for your judicious consideration of a man, a hero, no less," Howard said, "whose career was spent endeavoring to do what is right and honorable for the safety of those citizens whom he aspired to dutifully serve."
Howard attended Achtyl's brutality trial while in uniform, unlike the other deputies who showed their support for the defendant while in plain clothes.
Unlike the other deputies who wrote to the judge, Howard placed his communication on the official letterhead of the Erie County Sheriff's Office.
Achtyl's defense lawyer, Rodney O. Personius, assembled the letters as he prepared a sentencing memorandum designed to show the best side of Achtyl, a divorced father of two who is devoted to his fiancee and who, over almost 20 years with the Sheriff's Office, was honored for his response to myriad episodes.
He helped recover the bodies of hikers who fell in the dangerous terrain of the Zoar Valley, saved residents from a house fire, successfully gave Narcan to an overdose victim, and twice responded to calls involving a hostile gunman. With the second one, at the Country Fair store in Springville in August 2018, deputies fired shots "neutralizing the threat," the memorandum says.
But after video of the bloody arrest outside New Era Field went viral, county prosecutors showed during a weeklong trial that Achtyl unleashed an unjustified arrest, swung his police baton at a man without legal reason, falsified the details in official documents and did not heed the sheriff's own policy instructing deputies to be courteous with the public.
<em>Warning: The following video includes blood and language. </em>
A jury found Achtyl guilty of reckless assault, official misconduct and falsifying business records, convictions that could put him in prison for up to two years, according to Erie County prosecutors. But such a stiff sentence is unlikely for Achtyl, who has no criminal record.
While Achtyl's camp, and his former boss, are trying to influence the judge, Achtyl's victim will have something to say, too.
Nicholas Belsito was a 25-year-old student at the University at Buffalo when Achtyl broke his nose, gave him a concussion and bloodied his face. He will be in the courtroom Thursday, said one of the attorneys pressing a civil rights lawsuit that names both Achtyl and the sheriff as defendants.
"I expect that he will address the court," attorney Aaron Glazer said of Belsito.
Achtyl did not testify during his trial, and the sentencing memorandum includes no statement from him. However, the judge may invite him to speak on his own behalf Thursday.
The episode began on Dec. 3, 2017, in the rowdy atmosphere outside the stadium before the Bills would play the New England Patriots. A friend of Belsito's had just been arrested, for tossing beer cans into a crowd of people, and he sat handcuffed inside a Sheriff's Office patrol car.
Belsito approached the vehicle to ask a deputy inside – Achtyl – where his friend was being taken, because Belsito intended to retrieve him once he was released from custody. Achtyl at first told Belsito to "beat it." Eventually he told Belsito that his friend was going to "10 Delaware."
Belsito had grown up in the Hudson Valley and was in his first year at UB. Once he realized 10 Delaware was the address of the county jail, he thanked the deputy and walked away.
But then he turned and said, "beat it? You're a (expletive) cop."
New York's highest court has ruled that swearing at an officer is not, in itself, a crime. Still, Achtyl bolted from his seat and began striking Belsito with his baton. Most of the attack was caught either on cellphone video or his partner's body camera. When prosecutors working for District Attorney John J. Flynn saw the body camera video, they dropped charges against Belsito. After The Buffalo News publicized the video late in 2018, prosecutors charged Achtyl with the misdemeanors.
Personius, Achtyl's defense lawyer, tried to convince jurors that Belsito was arrested in part because he had tried to interfere with the arrest of the friend who threw the beer cans. The video shows Belsito on the periphery of that encounter. But the Personius attempt went off the rails when Achtyl's partner, James W. Flowers, testified. Flowers and Achtyl had processed Belsito's arrest in tandem. Flowers said they didn't realize Belsito was the person creating a distraction during the can thrower's arrest until a week later, when they watched the body camera video.
Howard and his team reasoned that because Achtyl was convicted of misdemeanors, not felonies, he did not need to immediately be fired. But court decisions affecting public employees indicated otherwise. In a 1993 ruling, New York's highest court said "willful deceit or a calculated disregard for honest dealings" could disqualify someone from office. Achtyl had been convicted of falsifying business records, a charge that had forced others off of public payrolls. As the County Attorney's Office prepared to advise Howard about what to do, Achtyl resigned.
As his friends from the Sheriff's Office see it, the community lost a respected, experienced lawman.
"Kenny was always willing to sacrifice his physical well-being to protect the individuals he was working with and working for," Cully S. Ferrick, a detective, told the judge in a letter.
"Throughout the times I have known Ken, he has always demonstrated tremendous reliability and a strong sense of duty," wrote Jeremy R. Lehning of the Sheriff's Office.
"As a friend of Mr. Achtyl's," wrote Deputy Benjamin Pisa, "it was certain if you asked for his assistance he was without doubt going to be there to help."
Personius asked the judge to consider Achtyl's history, his family, his valor and the effects of the media's focus on the case. As for the arrest itself, Personius wrote that Achtyl takes "full responsibility" for his decision to exit his vehicle, Belsito's injuries and his statements in the use-of-force report. But he also wrote that Achtyl was following his instincts.
"In his mind," Personius wrote, "laws were enacted to be enforced."