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People v. Ferguson

82 N.Y.2d 837 Court N.Y. Decision date 1993-11-23 English

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p. 837
[626 NE2d 930, 606 NYS2d 145]
The People of the State of New York, Respondent, v Michael Ferguson, Appellant.
Decided November 23, 1993
p. 838
APPEARANCES OF COUNSEL
Mark Gimpel, New York City, and E. Joshua Rosenkranz for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Alan Gadlin of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Where no formal demonstration of the defendant’s "handedness” had been presented during trial, the prosecutor’s remark to the jury during summation — "[y]ou have been here through the course of the trial and [have] seen [defendant] sitting there. Defendant takes notes with his left hand”— constituted an improper reference to facts not in evidence (see, People v Paperno, 54 NY2d 294 , 300-301). Nonetheless, the court’s curative instruction, which directed the jurors to disregard the note-taking comment and clearly indicated that no evidence had been presented concerning whether defendant was left or right handed, was sufficient to ameliorate any prejudice and to ensure that defendant received a fair trial (People v Barnes, 80 NY2d 867 , 868; see also, People v Ashwal, 39 NY2d 105 , 111).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.

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