Opinion
February 27, 1989
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is affirmed.
Contrary to the defendant's contention, the court's remark during defense counsel's summation that "[d]efense counsel has the right to call any witness she wants" did not deprive him of a fair trial. In her summation, defense counsel opened the door to the issue of control over possible witnesses by implying that the People had prevented certain witnesses from testifying or evidence from being presented (see, People v Hardwick, 122 A.D.2d 165). Even viewing the remark in its worst light, there is no "significant probability, rather than only a rational possibility * * * that the jury would have acquitted the defendant had it not been for the [remark]" (People v Crimmins, 36 N.Y.2d 230, 242).
Finally, we find, under the circumstances, that the sentence imposed was not excessive (see, People v Suitte, 90 A.D.2d 80). Thompson, J.P., Kunzeman, Spatt and Balletta, JJ., concur.