People v Nelson

People v Nelson 2015 NY Slip Op 08264 Decided on November 13, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.
1117 KA 11-00253

[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

v

CARL F. NELSON, DEFENDANT-APPELLANT.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered November 23, 2010. The judgment convicted defendant, upon a jury verdict, of murder in the second degree.

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

Memorandum: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that Supreme Court erred in refusing to charge the jury with respect to the voluntariness of defendant's statements to the police. We reject that contention. "A court is required to provide a charge regarding the voluntariness of defendant's statements only if defendant raises that issue, and evidence sufficient to raise a factual dispute [is] adduced either by direct or cross-examination' " (People v Nathan, 108 AD3d 1077, 1078, lv denied 23 NY3d 966, quoting People v Cefaro, 23 NY2d 283, 288-289). Here, defendant did not submit any evidence presenting a genuine issue of fact concerning the voluntariness of his statements, and we therefore conclude that the court was not required to instruct the jury on that issue (see People v Canfield, 111 AD3d 1396, 1396, lv denied 22 NY3d 1087; Nathan, 108 AD3d at 1078).

Entered: November 13, 2015

Frances E. Cafarell

Clerk of the Court