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