Entrapment: NY Criminal Defense – Inducement and Encouragement by a Public Servant

Whether you are accused of a “street crime” in New York such as Assault or Criminal Sale of a Controlled Substance (selling drugs) or, in the alternative, you are accused of a White Collar crime such as Money Laundering or Grand Larceny, there are certain defenses specifically outlined in the Penal Law that you need to review with an experienced criminal defense attorney such as the former Manhattan prosecutors at Saland Law PC. One of those “affirmative” defenses is Entrapment.

According to Penal Law Section 40.05 – Entrapment – “it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

William Donnino, the author of the practice commentaries for McKinney’s, states that the purpose of the Entrapment defense “is to discourage the use of overzealous methods by law enforcement officials to trap the unwary innocent into commission of an offense. Thus, the main thrust of the section is against pressure methods which may cause the commission of an offense by one who is not ordinarily disposed to commit it. As a practical matter, therefore, the defense of entrapment would not be available to the person who regularly engages in illegal enterprise.” That being said, the legal reality is that this “defense is available to all defendants and is not limited to the ‘unwary innocent’.” People v. Yore, 36 A.D.2d 818 (1st Dept. 1971)

Because the courts hold every person’s due process rights to the highest level, even those individuals who are “predisposed” to committing crimes may still be the victims of Entrapment by the police. According to the Court of Appeals in People v. Isaacson, 44 N.Y.2d 511 (1978), when deciding whether this defense is available to these individuals, the courts examine numerous factors including:

(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity;

(2) whether the police themselves engaged in criminal of improper conduct repugnant to a sense of justice;

(3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and

(4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.

It is important to recognize that Entrapment is an “affirmative defense.” Therefore, the defendant bears the burden of proof. Although a defendant does not have to prove Entrapment beyond a reasonable doubt, the burden of proof is legally described as preponderance of the evidence. Regardless of the standard, an Entrapment defense is not one that will merely fall into place as a case or trial proceeds. Consult with a criminal defense attorney to identify and investigate the elements and evidence you will need to successfully establish your Entrapment defense.

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