| People v Farrare |
| 2014 NY Slip Op 04654 [118 AD3d 1477] |
| June 20, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vTimothy O. Farrare, Also Known as John Doe, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Timothy Farrare, defendant-appellant pro se.
Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Daniel J. Doyle, J.),rendered November 9, 2009. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree (two counts) and manslaughter in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict ofmanslaughter in the first degree (Penal Law § 125.20 [1]) and two counts ofmurder in the second degree (§ 125.25 [3] [felony murder]), defendantcontends that Supreme Court erred in denying his application pursuant to Batson vKentucky (476 US 79 [1986]). Defendant failed to preserve for our review hisprocedural challenge to the court's disposition of his Batson application (see People v Rodriguez, 93AD3d 595, 595 [2012], lv denied 19 NY3d 966 [2012]; People vParker, 304 AD2d 146, 156 [2003], lv denied 100 NY2d 585 [2003]) and, inany event, that challenge lacks merit. The court at least implicitly concluded that theprosecutor's explanation was not pretextual (see People v Dandridge, 26 AD3d 779, 779-780 [2006];People v Pena, 251 AD2d 26, 34 [1998], lv denied 92 NY2d 929 [1998];cf. People v Morgan, 75AD3d 1050, 1051-1052 [2010], lv denied 15 NY3d 894 [2010]). Weconclude with respect to defendant's challenge to the merits of the court's Batsonruling that the court did not abuse its discretion in determining that the prosecutor'sexplanation for her peremptory challenge with respect to the subject juror was notpretextual (see People vThompson, 59 AD3d 1115, 1117 [2009], lv denied 12 NY3d 860[2009]; see also People vHodges, 99 AD3d 629, 629 [2012], lv denied 20 NY3d 1062 [2013]; People v Johnson, 74 AD3d1912, 1913 [2010]). Contrary to defendant's further contention, there was probablecause for the order of an Ohio court authorizing the People herein to obtain a sample ofdefendant's blood while defendant was incarcerated in Ohio (see People v Afrika, 13 AD3d1218, 1219-1220 [2004], lv denied 4 NY3d 827 [2005]; see also People v Smith, 95AD3d 21, 24 [2012]; seegenerally People v LeRow, 70 AD3d 66, 70 [2009]).
We reject defendant's contention in both his main and pro se supplemental briefs thatthe court abused its discretion in denying his request for additional DNA testing. Therecord [*2]establishes that defendant's request was madeon the eve of trial and was merely a "dilatory tactic" (People v Arroyave, 49NY2d 264, 272 [1980]; seePeople v Brandi E., 38 AD3d 1218, 1218 [2007], lv denied 9 NY3d 863[2007]). Even assuming, arguendo, that defendant preserved for our review hiscontention that the court's determination denied him due process of law and the ability topresent a defense, we conclude that his contention lacks merit (see generally Crane vKentucky, 476 US 683, 689-690 [1986]).
We likewise reject defendant's further contention in his pro se supplemental brief thatthe verdict is inconsistent or repugnant inasmuch as he was acquitted of intentionalmurder (Penal Law § 125.25 [1]) but convicted of two counts of felonymurder (§ 125.25 [3]; cf. People v Sampson, 145 AD2d 910, 910[1988], lv denied 73 NY2d 982 [1989]; see generally People v Trappier,87 NY2d 55, 58 [1995]). Finally, we reject the contention of defendant in his pro sesupplemental brief that the court erred in admitting in evidence certain testimony of thepolice officer who responded to the scene of the crime (see generally People vCantave, 21 NY3d 374, 381 [2013], clarification denied 21 NY3d 1070[2013]; People v Miller,115 AD3d 1302, 1303-1304 [2014]). Present—Scudder, P.J., Fahey,Peradotto, Valentino and DeJoseph, JJ.