        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

726
KA 09-02535
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

TIMOTHY O. FARRARE, ALSO KNOWN AS JOHN DOE,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

TIMOTHY FARRARE, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     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, of murder in the second
degree (two counts) and manslaughter in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of manslaughter in the first degree (Penal Law § 125.20 [1])
and two counts of murder in the second degree (§ 125.25 [3] [felony
murder]), defendant contends that Supreme Court erred in denying his
application pursuant to Batson v Kentucky (476 US 79). Defendant
failed to preserve for our review his procedural challenge to the
court’s disposition of his Batson application (see People v Rodriguez,
93 AD3d 595, 595, lv denied 19 NY3d 966; People v Parker, 304 AD2d
146, 156, lv denied 100 NY2d 585) and, in any event, that challenge
lacks merit. The court at least implicitly concluded that the
prosecutor’s explanation was not pretextual (see People v Dandridge,
26 AD3d 779, 779-780; People v Pena, 251 AD2d 26, 34, lv denied 92
NY2d 929; cf. People v Morgan, 75 AD3d 1050, 1051-1052, lv denied 15
NY3d 894). We conclude with respect to defendant’s challenge to the
merits of the court’s Batson ruling that the court did not abuse its
discretion in determining that the prosecutor’s explanation for her
peremptory challenge with respect to the subject juror was not
pretextual (see People v Thompson, 59 AD3d 1115, 1117, lv denied 12
NY3d 860; see also People v Hodges, 99 AD3d 629, 629, lv denied 20
NY3d 1062; People v Johnson, 74 AD3d 1912, 1913). Contrary to
defendant’s further contention, there was probable cause for the order
                                 -2-                           726
                                                         KA 09-02535

of an Ohio court authorizing the People herein to obtain a sample of
defendant’s blood while defendant was incarcerated in Ohio (see People
v Afrika, 13 AD3d 1218, 1219-1220, lv denied 4 NY3d 827; see also
People v Smith, 95 AD3d 21, 24; see generally People v LeRow, 70 AD3d
66, 70).

     We reject defendant’s contention in both his main and pro se
supplemental briefs that the court abused its discretion in denying
his request for additional DNA testing. The record establishes that
defendant’s request was made on the eve of trial and was merely a
“dilatory tactic” (People v Arroyave, 49 NY2d 264, 272; see People v
Brandi E., 38 AD3d 1218, 1218, lv denied 9 NY3d 863). Even assuming,
arguendo, that defendant preserved for our review his contention that
the court’s determination denied him due process of law and the
ability to present a defense, we conclude that his contention lacks
merit (see generally Crane v Kentucky, 476 US 683, 689-690).

     We likewise reject defendant’s further contention in his pro se
supplemental brief that the verdict is inconsistent or repugnant
inasmuch as he was acquitted of intentional murder (Penal Law § 125.25
[1]) but convicted of two counts of felony murder (§ 125.25 [3]; cf.
People v Sampson, 145 AD2d 910, 910, lv denied 73 NY2d 982; see
generally People v Trappier, 87 NY2d 55, 58). Finally, we reject the
contention of defendant in his pro se supplemental brief that the
court erred in admitting in evidence certain testimony of the police
officer who responded to the scene of the crime (see generally People
v Cantave, 21 NY3d 374, 381, clarification denied 21 NY3d 1070; People
v Miller, 115 AD3d 1302, 1303-1304).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
