People v. Ferguson

• Decision Date: 11 March 1993
• Parties: The PEOPLE of the State of New York, Respondent, v. Carl F. FERGUSON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 860

594 N.Y.S.2d 860

191 A.D.2d 809

The PEOPLE of the State of New York, Respondent, v. Carl F. FERGUSON, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 11, 1993.

Michael J. Hutter, Albany, for appellant.

Michael A. West, Cobleskill, for respondent.

Before YESAWICH, J.P., and CREW, MAHONEY and HARVEY, JJ.

YESAWICH, Justice Presiding.

Appeal from a judgment of the County Court of Schoharie County (Lamont, J.), rendered November 8, 1989, upon a verdict convicting defendant of the crime of murder in the second degree.

As a result of the fatal shooting of a seven-year-old boy, defendant was charged with murder in the second degree, manslaughter in the first and second degrees, criminally negligent homicide, assault in the first degree and two counts of criminal use of a firearm in the first degree. At trial, the defense did not dispute that defendant shot the boy, but attempted instead to prove that due to a mental disease or defect defendant lacked the capacity to know or appreciate the nature and consequences of his conduct, and that he did not know or have reason to know that the gun was loaded. Convicted of murder in the second degree and sentenced to an indeterminate term of incarceration of 20 years to life, defendant appeals. His principal argument on appeal is that certain remarks made by the prosecutor during summation deprived him of a fair trial. We agree with this assessment.

In his summation, the prosecutor indicated that should defendant be found not guilty by reason of mental disease or defect, he "might be out in 90 days, 180 days". The prosecutor then asked the jurors to contemplate whether they would be able to "sleep safe and secure" knowing this. These statements, even if said in the heat of advocacy, went beyond a proper response to defense counsel's suggestion, made to the jury, that defendant needed help rather than punishment (compare, People v. Reade, 1 N.Y.2d 459, 154 N.Y.S.2d 27, 136 N.E.2d 497). The remarks were calculated to focus the jurors' attention on the possibility that this particularly sad and pointless incident might be repeated if all the jurors accomplished by their verdict was to label the defendant "insane" and allow him to escape punishment with a "slap on the wrist". In view of the increasingly held belief that the defense of "insanity" is merely a technicality that allows the guilty to avoid punishment for their wrongdoing and the rising fear of violent crime that pervades virtually all communities, it cannot be said with any assurance that this statement, once made, could be easily banished from the jurors' thoughts (see, People v. Levan, 295 N.Y. 26, 36, 64 N.E.2d 341; People v. Manganaro, 218 N.Y. 9, 17, 112 N.E. 436).

Although in many instances a prompt and specific curative instruction suffices to alleviate the harm done by an improper statement (see, People v. Broady, 5 N.Y.2d 500, 516, 186 N.Y.S.2d 230, 158 N.E.2d 817, appeal dismissed & cert. denied 361 U.S. 8, 80 S.Ct. 57, 4 L.Ed.2d 49; People v. Stockwell, 184 A.D.2d 800, 584 N.Y.S.2d 233, lv. denied 80 N.Y.2d 934, 589 N.Y.S.2d 862, 603 N.E.2d 967; People v. Miller, 108 A.D.2d 1053, 1057, 485 N.Y.S.2d 857, lv. denied 65 N.Y.2d 697, 491 N.Y.S.2d 1038, 481 N.E.2d 266), such an instruction, to be adequate to its purpose, must "eradicate [the] unjust effects" of the statement (People v. Manganaro, supra, 218 N.Y. at 17, 112 N.E. 436). Here, no curative instruction was given until two hours later, in the course of a lengthy charge, and then the jury was directed only to pay no heed to comments made by counsel regarding the possible consequences of a particular verdict. Significantly, the prosecutor's suggestion was never specifically refuted. Under these circumstances, it is unlikely that the jury would have put out of its collective mind the fear and apprehension engendered by the prosecutor's statement. In short, we believe "it is unreasonable to assume that the jury could follow ...