        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

515
KA 13-00975
PRESENT: CENTRA, J.P., CARNI, SCONIERS, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

HERLAND W. BOUWENS, III, ALSO KNOWN AS BUTCH,
DEFENDANT-APPELLANT.


WILLIAM G. PIXLEY, PITTSFORD, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered May 30, 2013. The judgment convicted defendant,
upon a jury verdict, of assault on a police officer, resisting arrest
and obstructing governmental administration in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of, inter alia, assault on a police officer
(Penal Law § 120.08). The charges against defendant arose out of his
actions incident to his arrest for a parole violation, during which a
sergeant of the Ontario County Sheriff’s Office was injured. Contrary
to defendant’s contention, viewing the evidence in light of the
elements of the assault count as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict finding that
defendant intended to prevent the sergeant from performing his lawful
duty, thereby injuring him (see § 120.08; People v Coombs, 56 AD3d
1195-1196, lv denied 12 NY3d 782), is not against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495). The
People’s evidence at trial established that defendant was aware that
he was the subject of an arrest warrant, had twice evaded the efforts
of police officers to arrest him on that warrant, and had told his
parole officer that he runs when he sees the police. Several police
officers testified that defendant turned toward and ran into the
sergeant attempting to apprehend defendant, and that defendant
continued to resist their attempts to arrest him after he was brought
to the ground. The People also presented evidence in the form of a
nearby store’s surveillance video showing defendant’s encounter with
the police and confirming the above testimony. Contrary to
defendant’s contention, there was no evidence that he was attempting
to surrender, and any finding that he was attempting to surrender
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                                                         KA 13-00975

“would have been both speculative and contrary to the evidence”
(People v Miranda, 66 AD3d 509, 510, lv denied 13 NY3d 909).

     Defendant’s contention that he was denied effective assistance of
counsel “is based on matters outside the record and thus is not
reviewable on direct appeal” (People v Davis, 119 AD3d 1383, 1384, lv
denied 24 NY3d 960).

     Finally, we conclude that the sentence is not unduly harsh or
severe.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
