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

643
KA 09-00318
PRESENT: CENTRA, J.P., FAHEY, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DESHEQUAN L. NATHAN, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered September 18, 2008. The judgment
convicted defendant, upon a jury 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 jury verdict of manslaughter in the first degree (Penal Law §
125.20 [1]). The conviction stemmed from a street corner fistfight
involving a group of teenagers and other young adults during which a
shot was fired from defendant’s gun, striking and killing a 16-year-
old victim. The People presented evidence at trial that, during the
altercation, defendant intentionally aimed the gun at the victim and
shot him. Although defendant did not deny that his gun discharged and
struck the victim, defendant presented evidence that the gun
accidentally discharged while he was using it as a club in an attempt
to protect one of his friends by preventing one of the other
participants, Kavin Rowe, from pulling a gun out of his waistband.
Thus, at trial, defendant contended that his 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 instructing the jury that, before it considered the defense
of justification, it had to “first decide whether or not the defendant
had actually used physical force against [Rowe]” (see generally People
v Spinks, 244 AD2d 921, 921-922). The isolated portions of the charge
challenged by defendant did not improperly shift the burden of proof
to defendant (see generally id. at 922). Further, when the
instructions are viewed in their entirety, the charge was a correct
statement of the law, and properly identified and framed a factual
                                 -2-                           643
                                                         KA 09-00318

issue for the jury (see People v DiGuglielmo, 258 AD2d 591, 592, lv
denied 93 NY2d 923; see generally People v Coleman, 70 NY2d 817, 819).
We reject defendant’s further contention that the court erred in
refusing to charge the jury with respect to the voluntariness of
defendant’s statements to the police. 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 Cefaro, 23 NY2d 283, 288-289; see People v Medina, 93 AD3d
459, 460, lv denied 19 NY3d 999). Inasmuch as defendant did not
submit any evidence presenting a genuine question of fact as to the
voluntariness of his statements, the court was not required to
instruct the jury on that issue (see People v White, 27 AD3d 884, 886,
lv denied 7 NY3d 764).

     Defendant also contends that the court erred in denying his
request for an adverse inference charge concerning the failure of the
police to record defendant’s interrogation. “ ‘[T]his Court has
repeatedly determined . . . that the failure to record a defendant’s
interrogation electronically does not constitute a denial of due
process’ . . . , and thus an adverse inference charge was not
warranted” (People v Holloway, 71 AD3d 1486, 1487, lv denied 15 NY3d
774; see People v McMillon, 77 AD3d 1375, lv denied 16 NY3d 897).
Finally, defendant’s sentence is not unduly harsh or severe.




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
