
    The People of the State of New York, Respondent, v Stephen Merkel, Appellant.
   Judgment unanimously affirmed. Memorandum: The court properly received in evidence the statement made by defendant at the hospital when he learned of the victim’s death. In a trial for depraved indifference murder, the emotional state of a defendant is not admissible on the issue of whether the defendant acted under circumstances evincing depraved indifference to human life because that issue must be determined by an objective standard. Defendant’s emotional state may be relevant, however, to show his subjective awareness of the risk, an element essential to establish the mens rea of recklessness (People v Roe, 74 NY2d 20, 27, n 7). Here, evidence of defendant’s emotional state was admissible because the issue of whether defendant’s conduct was reckless was in dispute. Moreover, any error in admitting that testimony was harmless. The proof of defendant’s guilt was overwhelming and there was no probability that, had the statement been excluded, the result would have been more favorable to defendant (see, People v Crimmins, 36 NY2d 230).

We have reviewed the other issues raised by defendant and we conclude that they lack merit. (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.—Murder, 2nd Degree.) Present—Denman, J. P., Boomer, Green, Pine and Davis, JJ.  