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

1117
KA 11-00253
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

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
