THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WINDSOR COLEMAN DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reducing the conviction of assault in the second degree under count 1 of the indictment (Penal Law § 120.05 [3]) to obstructing governmental administration in the second degree (former § 195.05) and vacating the sentence imposed on count 1 of the indictment and as modified the judgment is affirmed and the matter is remitted to Cayuga County Court for sentencing on the conviction of obstructing governmental administration in the second degree.

Memorandum: On appeal from a judgment convicting him following a jury trial of two counts of assault in the second degree (Penal Law § 120.05 [3]), defendant contends in his main brief that the People's certificate of compliance (COC) was “illusory” because the People had not yet disclosed the grand jury minutes to him or responded to his pro se omnibus motion. We reject that contention. As defendant acknowledges in his main brief, the grand jury minutes had not been transcribed at the time the COC was filed, and the minutes were later provided to the defense with a supplemental COC. Even assuming, arguendo, that “the statutory period to disclose the grand jury transcripts ․ expired prior to the date the transcripts were received by the People and turned over to defendant, [we conclude that,] at the time the People filed their COC and statement of readiness ․ they had complied with their initial discovery obligations under CPL article 245.20 ‘to the extent possible’ ” (People v Flowers, 234 AD3d 1347, 1348 [4th Dept 2025], lv denied 43 NY3d 1045 [2025]; see People v Drayton, 231 AD3d 1057, 1060 [2d Dept 2024], lv denied 43 NY3d 930 [2025]; People v Geer, 224 AD3d 1353, 1354 [4th Dept 2024], lv denied 42 NY3d 970 [2024]). Any delay in providing the grand jury minutes may have warranted a sanction under CPL 245.80, which defendant did not request, but the delay did not affect the validity of the COC.

Contrary to defendant's further contention in his main brief, County Court did not err in appointing standby counsel over defendant's objection after granting his request to proceed pro se (see People v Sawyer, 57 NY2d 12, 22 [1982], citing Faretta v California, 422 US 806, 835 n 46 [1975]). We note that, because defendant later refused to appear at trial, there would have been no one in the courtroom protecting defendant's interests had the court not appointed standby counsel.

Defendant next contends in his main brief that the court improperly adjudicated him to be a second felony offender without first holding a hearing. Even assuming, arguendo, that defendant's contention is properly before this Court even though his objections concerned only the use of documentary evidence and the lack of tolling analysis (see People v Tyler, 275 AD2d 947, 947 [4th Dept 2000], lv denied 95 NY2d 939 [2000]), we reject the contention on the merits (see People v Box, 145 AD3d 1510, 1515 [4th Dept 2016], lv denied 29 NY3d 1076 [2017]; People v Vancleave, 286 AD2d 941, 942 [4th Dept 2001], lv denied 97 NY2d 689 [2001], cert denied 537 US 1052 [2002]). The fact that defense counsel was not afforded an opportunity to examine witnesses does not mean that the predicate felony proceeding was not a hearing (see People v Leon, 10 NY3d 122, 126 [2008]; see generally People v Acoff, 289 AD2d 1085, 1087 [4th Dept 2001], lv denied 98 NY2d 635 [2002]). The court made its determination after reviewing the People's documentary evidence and hearing from standby defense counsel. At that time, defendant had an opportunity to object to the propriety of the predicate felon status (see generally People v Presley, 49 AD2d 804, 804 [4th Dept 1975]).

Moreover, the People met their burden of proof by filing a second felony offender statement and providing a signed, certified document showing that defendant was convicted of a felony seven years before the instant offense, and which included an analysis by an identification specialist establishing that the fingerprints from the offender in the prior conviction and instant case were from the same person (see People v Alexander, 161 AD2d 1035, 1037 [3d Dept 1990], lv denied 76 NY2d 851 [1990]; People v Parker, 55 AD2d 989, 989 [3d Dept 1977]; cf. People v VanGorden, 147 AD3d 1436, 1441 [4th Dept 2017], lv denied 29 NY3d 1037 [2017]).

We agree in part with defendant's contention in his main brief that the evidence of physical injury (Penal Law § 10.00 [9]) is insufficient to support the judgment convicting him of two counts of assault in the second degree (§ 120.05 [3]). Each count of assault in the second degree arises from allegations that defendant caused a physical injury to different correction officers. According to Penal Law § 10.00 (9), a physical injury constitutes “impairment of physical condition or substantial pain.” We conclude that neither officer sustained impairment of a physical condition (see generally People v Tejeda, 78 NY2d 936, 937 [1991]; People v Jimenez, 55 NY2d 895, 896 [1982]). As a result, the issue before us is whether either or both of the officers suffered substantial pain.

“ ‘[S]ubstantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial” (People v Chiddick, 8 NY3d 445, 447 [2007]). “Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and [their] pain, whether the victim sought medical treatment, and the motive of the offender” (People v Haynes, 104 AD3d 1142, 1143 [4th Dept 2013], lv denied 22 NY3d 1156 [2014]).

We agree with defendant that the evidence is legally insufficient to establish that the correction officer associated with count 1 of the indictment sustained a physical injury (see People v Bunton, 206 AD3d 1724, 1725-1726 [4th Dept 2022], lv denied 38 NY3d 1149 [2022]; People v Coleman, 134 AD3d 1555, 1556 [4th Dept 2015], lv denied 7 NY3d 963 [2016]; Haynes, 104 AD3d at 1143-1144; cf. People v Soto, 242 AD3d 1613, 1614 [4th Dept 2025], lv denied 44 NY3d 1068 [2026]; People v Tillmon, 228 AD3d 1343, 1344-1345 [4th Dept 2024], lv denied 42 NY3d 1037 [2024]). We therefore modify the judgment by reducing the conviction of assault in the second degree under count 1 of the indictment to obstructing governmental administration in the second degree (former § 195.05), which was appropriately charged to the jury “as a lesser included offense of assault in the second degree under subdivision (3) of Penal Law § 120.05” (People v Sullivan, 284 AD2d 917, 918 [4th Dept 2001], lv denied 96 NY2d 942 [2001], reconsideration denied 97 NY2d 658 [2001]).

Contrary to defendant's contention, however, the evidence is legally sufficient to establish that the officer associated with count 2 of the indictment sustained the requisite physical injury. That officer, who sought medical attention and took over-the-counter pain medication (see People v Talbott, 158 AD3d 1053, 1054 [4th Dept 2018], lv denied 31 NY3d 1088 [2018]; People v Stillwagon, 101 AD3d 1629, 1630 [4th Dept 2012], lv denied 21 NY3d 1020 [2013]; cf. People v Dowdell, 214 AD3d 1363, 1366 [4th Dept 2023]), experienced light sensitivity, a headache, and pain in the neck and jaw following the altercation (see People v James, 303 AD2d 240, 241 [1st Dept 2003], lv denied 100 NY2d 539 [2003]; People v Winslow, 153 AD2d 965, 967 [3d Dept 1989]). He sustained an acute closed head injury and an acute cervical strain, and his head and neck pain lasted for “quite a while” (see People v Anderson, 211 AD3d 1485, 1486 [4th Dept 2022], lv denied 39 NY3d 1077 [2023]). In addition, that officer missed several days of work (see Tillmon, 228 AD3d at 1344).

We have reviewed defendant's contention in his pro se supplemental brief and conclude that it lacks merit.

Finally, defendant contends that the sentence is unduly harsh and severe. Inasmuch as we are reducing count 1 to a misdemeanor and remitting for resentencing, we do not address the sentence on that count. The sentence on count 2 is not unduly harsh or severe.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court