The People did not rely on incompetent hearsay evidence to prove that defendant possessed at least 500 milligrams of cocaine. "[T]he police chemist's reliance on a colleague's test results was proper for evidentiary purposes because the colleague's findings were of a kind accepted in the profession as reliable ( see, People v. Jones, 73 N.Y.2d 427, 430)" ( People v. Rosario, 179 A.D.2d 554, lv denied 79 N.Y.2d 1007; see also, People v. Green, 215 A.D.2d 141, lv denied 86 N.Y.2d 735) and the technical or scientific basis for the testifying expert's conclusion was not required to be presented as part of the People's direct case ( Romano v. Stanley, 90 N.Y.2d 444, 451). This admissible evidence was legally sufficient to establish defendant's possession of the statutorily required quantity of cocaine.
Defendant challenges this evidence as based on hearsay, i.e., the report of the police detective who had test-fired the .380 handgun but was deceased at the time of trial. However, the microscopic analysis had been conducted by the detective who, relying on the samples derived from the test firing, testified as an expert that the bullets taken from the deceased came from the .380 and could not have come from the 9 millimeter, and that the shells from the 9 millimeter found in the rest of the apartment could not have come from the .380. Since the test-firing evidence was of a type accepted in the profession as reliable, and the fact of the test-firing did not establish any of the essential elements of the crime, the unavailability of the test-firer to establish a foundation did not make his report impermissible hearsay (People v. Rosario, 179 A.D.2d 554, lv denied 79 N.Y.2d 1007; cf., People v. Jones, 73 N.Y.2d 427). The remainder of the evidence which included eyewitness testimony of two shots fired in the background during a pause in the shooting spree by defendant's accomplice, was legally sufficient to circumstantially prove that defendant shot the deceased and that he shared the intent of his accomplice to shoot the others in the apartment as well. The People's witnesses at this retrial who asserted their Fifth Amendment privilege were unavailable for purposes of both introducing their former testimony at the first trial into evidence at this trial (CPL 670.