| People v Nathan |
| 2013 NY Slip Op 05135 [108 AD3d 1077] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vDeshequan L. Nathan, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Joseph D.Valentino, J.), rendered September 18, 2008. The judgment convicted defendant, upon ajury verdict, of manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of manslaughter in the first degree (Penal Law § 125.20 [1]). Theconviction stemmed from a street corner fistfight involving a group of teenagers andother young adults during which a shot was fired from defendant's gun, striking andkilling a 16-year-old victim. The People presented evidence at trial that, during thealtercation, defendant intentionally aimed the gun at the victim and shot him. Althoughdefendant did not deny that his gun discharged and struck the victim, defendantpresented evidence that the gun accidentally discharged while he was using it as a club inan attempt to protect one of his friends by preventing one of the other participants, KavinRowe, from pulling a gun out of his waistband. Thus, at trial, defendant contended thathis use of physical force was justified in defense of a third person (§ 35.15 [1]).
We reject defendant's contention on appeal that Supreme Court erred in instructingthe jury that, before it considered the defense of justification, it had to "first decidewhether or not the defendant had actually used physical force against [Rowe]" (seegenerally People v Spinks, 244 AD2d 921, 921-922 [1997]). The isolated portions ofthe charge challenged by defendant did not improperly shift the burden of proof todefendant (see generally id. at 922). Further, when the instructions are viewed intheir entirety, the charge was a correct statement of the law, and properly identified andframed a factual issue for the jury (see People v DiGuglielmo, 258 AD2d 591,592 [1999], lv denied 93 NY2d 923 [1999]; see generally People vColeman, 70 NY2d 817, 819 [1987]). We reject defendant's further contention thatthe court erred in refusing to charge the jury with respect to the voluntariness ofdefendant's statements to the police. A court is required to provide a charge regarding thevoluntariness of defendant's statements only if defendant raises that issue, and "evidencesufficient to raise a factual dispute [is] adduced either by direct or cross-examination"(People v Cefaro, 23 NY2d 283, 288-289 [1968]; see People v Medina, 93 AD3d459, 460 [2012], lv denied 19 NY3d 999 [2012]). Inasmuch as defendantdid not submit any evidence [*2]presenting a genuinequestion of fact as to the voluntariness of his statements, the court was not required toinstruct the jury on that issue (see People v White, 27 AD3d 884, 886 [2006], lvdenied 7 NY3d 764 [2006]).
Defendant also contends that the court erred in denying his request for an adverseinference charge concerning the failure of the police to record defendant's interrogation." '[T]his Court has repeatedly determined . . . that the failure to record adefendant's interrogation electronically does not constitute a denial of due process'. . . , and thus an adverse inference charge was not warranted" (People v Holloway, 71 AD3d1486, 1487 [2010], lv denied 15 NY3d 774 [2010]; see People v McMillon, 77AD3d 1375 [2010], lv denied 16 NY3d 897 [2011]). Finally, defendant'ssentence is not unduly harsh or severe. Present—Centra, J.P., Fahey, Carni andSconiers, JJ.