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People v. Parker2/7/2003
imony is harmless beyond a reasonable doubt in view of the overwhelming evidence of defendant's guilt, including the identification testimony of eyewitnesses (see Owens, 74 NY2d at 678; Armstrong, 288 AD2d at 485; see also Crimmins, 36 NY2d at 237).
V. Remaining Issues
Defendant contends that he did not have the requisite intent to commit murder in the first degree or attempted murder in the first degree. We note, however, that intent "is an issue of fact that often must be determined only on the basis of the criminal act and the circumstances surrounding its commission" (People v Hernandez, 184 AD2d 439, 440, lv denied 80 NY2d 904, citing People v Bracey, 41 NY2d 296, 301), and here defendant's intent may be inferred from defendant's actions, as described in the testimony of the People's witnesses (see People v Coleman, 296 AD2d 766). We conclude from our review of the record that the conviction of murder in the first degree and attempted murder in the first degree is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence with respect to those crimes (see People v Bleakley, 69 NY2d 490, 495).
Defendant further contends that the court failed to inform him of the contents of two jury notes. The record establishes that the jury, counsel, and defendant were present when the court received the notes and issued responses to the jury, and defense counsel's failure to object at a time when the court could have corrected the alleged errors renders defendant's contention unpreserved for our review (see People v Johnson, 289 AD2d 1008, 1009, lv denied 97 NY2d 756; see also (*12)People v Starling, 85 NY2d 509, 516).
We reject defendant's contention that the admission of testimony concerning DNA population statistics was without proper foundation and constitutes reversible error. "Defendant's challenges to the population studies relied upon to estimate the probability of a coincidental match 'go not to the admissibility, but to the weight of the evidence, which should be left to the trier of fact'" (People v Knight, 280 AD2d 937, 938, lv denied 96 NY2d 864, quoting People v Wesley, 83 NY2d 417, 427).
We also reject defendant's contention that the court erred in denying defense counsel's request to recharge the jury with respect to the difference between depraved indifference murder and murder in the first degree. The court properly explained the difference between the requisite states of mind for those crimes (see generally People v Robinson, 145 AD2d 184, 185-186, affd 75 NY2d 879; People v Gallagher, 69 NY2d 525, 529-530; People v Horning, 263 AD2d 955, lv denied 94 NY2d 824). We conclude that the charge as a whole conveyed the proper standard to the jury (see generally People v Coleman, 70 NY2d 817, 819; People v Foss, 267 AD2d 505, 509, lv denied 94 NY2d 947).
Defendant contends that the admission of the transcript of a prior proceeding in which he entered a plea of guilty to one count of criminal possession of a weapon in the third degree (Penal Law § 265.02 ) and two counts of attempted criminal possession of a weapon in the third degree (§§ 110.00, 265.02 ) deprived him of a fair trial because the transcript constituted inadmissible hearsay. We disagree. The People's theory for defendant's motive in shooting at the officers in this case was that defendant was awaiting sentencing on those three counts and therefore wanted to avoid being apprehended for possessing a loaded weapon. The transcript of the prior plea proceeding, which the prosecutor herein agreed should exclude any mention of the crimes to which defendant pleaded guilty, established that the court had informed defendant that it would no
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