Entrapment in New York: NY Penal Law Section 40.05 & Your Criminal Defense

New York criminal defense attorneys routinely hear it from their clients. “I was framed” or “I was entrapped.” While often times a New York criminal defense lawyer can dissect and locate errors in the investigation, arrest procedure or paperwork of a criminal case, establishing that a client is the victim of entrapment, as a matter of law, is not as easy. In fact, entrapment is specifically defined in the New York Penal Law (NY PL 40.05) and is far more complex than the “they made me do it” or “they pushed me into it” defense. That beings said, if you can establish that you violated a particular criminal statute in New York due to this entrapment, an affirmative defense to the charges exists. What is Entrapment – New York Penal Law 40.05

Although not a verbatim cut and paste of the actual statute and not a substitute for a reading of it and discussion with your legal counsel, entrapment is defined as follows:

If you were induced or encouraged by a public servant (for example, the police), or a person cooperating with them, to engage in particular conduct AND it was done to obtain evidence against you in a criminal prosecution AND the method used to obtain that evidence created a substantial risk that you would commit the particular offense even though you were not generally disposed to committing such an offense, you may have an entrapment defense.

Other critical points in this statute are that the inducement and encouragement must be active and merely affording you the opportunity to commit a particular crime or offense is not sufficient to raise to the level of entrapment. What is Encouragement and Inducement

“The testimony of the undercover officers demonstrates that they merely afforded defendant an opportunity to commit the offense, which standing alone is insufficient to warrant an entrapment charge ( see, Penal Law § 40.05; People v. Thompson, 47 N.Y.2d 940, 941, 419 N.Y.S.2d 948, 393 N.E.2d 1021; see also, Mathews v. United States, supra, 485 U.S. at 66, 108 S.Ct. at 888). Merely asking a defendant to commit a crime [of Patronizing a Prostitute by asking if he wanted to receive oral sex] is not such inducement or encouragement as to constitute entrapment.” See People v. Brown, 82 N.Y.2d 869 (1993)

Being “duped” into committing an offense is not necessarily entrapment due to encouragement or inducement. See People v. Skervin, 17 A.D.3d 771 (3rd Dept. 2005)

Who Has to Prove the Entrapment

Because it is an affirmative defense, the burden of proving that you were entrapped rests on your shoulders (it is the defendant’s burden).

The above description of the entrapment defense is very brief and far from detailed. Do not rely on this blog entry to ascertain if entrapment exists and is applicable in your case. Instead, discus this matter with your criminal defense counsel.

Saland Law PC is a New York criminal defense firm located in New York City. Representing clients throughout the New York region, both partners previously served as prosecutors in the Manhattan District Attorney’s Office.

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