Opinion
2014-06-20
The PEOPLE of the State of New York, Respondent, v. 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.
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.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO AND DeJOSEPH, JJ.
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 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. Defendant failed to preserve for our review his procedural challenge to the court's disposition of his Batson application ( see People v. Rodriguez, 93 A.D.3d 595, 595, 941 N.Y.S.2d 99,lv. denied19 N.Y.3d 966, 950 N.Y.S.2d 118, 973 N.E.2d 216;People v. Parker, 304 A.D.2d 146, 156, 755 N.Y.S.2d 521,lv. denied100 N.Y.2d 585, 764 N.Y.S.2d 396, 796 N.E.2d 488) 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 A.D.3d 779, 779–780, 809 N.Y.S.2d 353;People v. Pena, 251 A.D.2d 26, 34, 675 N.Y.S.2d 330,lv. denied92 N.Y.2d 929, 680 N.Y.S.2d 470, 703 N.E.2d 282;cf. People v. Morgan, 75 A.D.3d 1050, 1051–1052, 903 N.Y.S.2d 851,lv. denied15 N.Y.3d 894, 912 N.Y.S.2d 582, 938 N.E.2d 1017). 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 A.D.3d 1115, 1117, 873 N.Y.S.2d 834,lv. denied12 N.Y.3d 860, 881 N.Y.S.2d 672, 909 N.E.2d 595;see also People v. Hodges, 99 A.D.3d 629, 629, 952 N.Y.S.2d 558,lv. denied20 N.Y.3d 1062, 962 N.Y.S.2d 613, 985 N.E.2d 923;People v. Johnson, 74 A.D.3d 1912, 1913, 904 N.Y.S.2d 847). Contrary to defendant's further contention, there was probable cause for the order 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 A.D.3d 1218, 1219–1220, 787 N.Y.S.2d 774,lv. denied4 N.Y.3d 827, 796 N.Y.S.2d 582, 829 N.E.2d 675;see also People v. Smith, 95 A.D.3d 21, 24, 940 N.Y.S.2d 373;see generally People v. LeRow, 70 A.D.3d 66, 70, 889 N.Y.S.2d 813).
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 N.Y.2d 264, 272, 425 N.Y.S.2d 282, 401 N.E.2d 393;see People v. Brandi E., 38 A.D.3d 1218, 1218, 834 N.Y.S.2d 895,lv. denied9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199). 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 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636).
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 A.D.2d 910, 910, 536 N.Y.S.2d 291,lv. denied73 N.Y.2d 982, 540 N.Y.S.2d 1016, 538 N.E.2d 368;see generally People v. Trappier, 87 N.Y.2d 55, 58, 637 N.Y.S.2d 352, 660 N.E.2d 1131). 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 N.Y.3d 374, 381, 971 N.Y.S.2d 237, 993 N.E.2d 1257,clarification denied21 N.Y.3d 1070, 974 N.Y.S.2d 316, 997 N.E.2d 141;People v. Miller, 115 A.D.3d 1302, 1303–1304, 982 N.Y.S.2d 656).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.