People v. Ferguson

82 N.Y.2d 837 (1993)

626 N.E.2d 930

606 N.Y.S.2d 145

The People of the State of New York, Respondent, v. Michael Ferguson, Appellant.

Court of Appeals of the State of New York.

Decided November 23, 1993.

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.

Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA, SMITH and LEVINE concur.

*838MEMORANDUM.

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 N.Y.2d 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 N.Y.2d 867, 868; see also, People v Ashwal, 39 N.Y.2d 105, 111).

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.