THE PEOPLE &C., RESPONDENT, v. MICHAEL FERGUSON, APPELLANT.
82 N.Y.2d 837, 626 N.E.2d 930, 606 N.Y.S.2d 145 (1993).
November 23, 1993
1 No. 294 SSM 41 (1993 NY Int. 246)
Decided November 23, 1993
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Submitted by Mark Gimpel, for Appellant.
Submitted by Alan Gadlin, for Respondent.
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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).
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.4 of the Rules, order
affirmed, in a memorandum. Chief Judge Kaye and Judges Simons, Titone,
Hancock, Bellacosa, Smith and Levine concur.
SNIPPETS:
THE PEOPLE &C., RESPONDENT, v. MICHAEL FERGUSON, APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
Where no formal demonstration of the defendant's "handedness" had been presented during
Defendant takes notes with his left hand" -- constituted an improper reference to facts not
Nonetheless, the court's curative instruction, which directed the jurors to disregard the
On review of submissions pursuant to section 500.4 of the Rules, order affirmed, in a
Chief Judge Kaye and Judges Simons, Titone, Hancock, Bellacosa, Smith and Levine concur.
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