Is It A Trap, Or Entrapment?

So what is entrapment? It is when the police induce someone to break the law, then arrest them for it. In our experience, entrapment does not usually involve setting up a completely innocent person to commit a crime. In most cases, a police officer suspects a person is up to no good, and that is sometimes true. However, when they set up a sting, they suggest a type of activity that is arguably outside the scope of the misconduct they would commit. Then the police arrest someone for a crime that is “worse” than the original crime the police alleged.

When you are facing criminal charges in New York, it will be essential to work with an experienced Rochester criminal defense attorney who can evaluate the facts surrounding your arrest and work with you to develop a strong defense strategy to give you the best chance of beating the charges you are facing. One possible defense that may be applicable to your case is entrapment. Although many people have heard of entrapment and the term has become used colloquially in many situations, it is important to understand that this is a specific type of defense for which a person facing criminal charges will need to prove the elements of the defense. The following are some of the top things to know about an entrapment defense in New York.

Entrapment is an Affirmative Defense

An entrapment defense is a type of affirmative defense. What this means is that, if you are planning to argue that you should not be convicted of the charges you are facing due to entrapment, you will not be arguing that you did not commit the offense. Instead, with an affirmative defense, the defendant is introducing evidence to show that, even if she or he committed the alleged act or acts in question, she or he should not be convicted and should not be criminally liable. Other examples of affirmative defenses besides entrapment include self-defense and insanity.

Entrapment Requires Evidence of Inducement or Encouragement

Under New York Penal Law (PEN § 40.05), a defendant using the affirmative defense of entrapment must be able to show that there was inducement or encouragement to commit the offense by a law enforcement officer or other public servant. Yet that is not the only part of an entrapment defense. There are two general elements of the entrapment defense cited under New York law:

• 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 the purpose of criminal prosecution; and
• 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.

A defendant must be able to prove both of the elements above in order to successfully beat criminal charges based on the defense of entrapment.

Giving a Person an Opportunity to Commit an Offense is Not Enough

Under New York law, a public servant (such as a police officer) giving a person an opportunity to commit an offense is not enough to prove entrapment. To be sure, New York Penal Law expressly states that “conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” To be clear, inducement and encouragement are required.

How Common Is Entrapment?

It is still rare that entrapment is a defense at a crimnal trial in New York. The biggest trouble with an entrapment defense is that is generally allows the jury to hear some less than endearing things about the defendant. For example, a prior drug transaction must be admitted to. Entrapment trials are very risky for both sides. Perhaps the biggest advantage of understanding the defense is that a smart criminal defense lawyer can use it to place additional pressure or leverage on the prosecution to make a better plea offer. Anytime there is a risk of losing, the prosecution is more likely to make a better offer.

Real-Life Examples of Possible Entrapment From King Law Cases

In general, entrapment means that law enforcement has convinced a person to committ a crime they would not have committed otherwise. Here are three cases where King Law’s lawyers believe law enforcement officials may have committed entrapment.

So, entrapment occurs when the police induce someone to break the law, then arrest them for it. In our experience, entrapment does not usually involve setting up a completely innocent person to commit a crime. In most cases, a police officer suspects a person is up to no good, and that is sometimes true. However, when they set up a sting, they suggest a type of activity that is arguably outside the scope of the misconduct they would commit. Then the police arrest someone for a crime that is “worse” than the original crime the police alleged.

Case Example #1

Recently, we defended a case involving a DEC officer. DEC officers are law enforcement personnel. A DEC officer is called to a scene for a possible hunting violation. Upon arrival, a licensed hunter has properly shot a deer with his bow and arrow. The officer asks the hunter for his hunting license and driver’s license. The hunter’s ID is a non-driver ID, indicating he cannot drive a car because of a prior DWI. The DEC officer helps the hunter locate the Deer and tells the hunter to take a car on the farm closer to the deer to retrieve it. The hunter, not wanting to disobey the officer, follows instructions. He is promptly arrested for driving with a suspended license. This is a possible case of entrapment.

Case Example #2

In this example, the defendant is a suspected drug dealer. A confidential informant has purchased small amounts of cocaine from him in the past. Drug charges are often related to the weight/amount of the drugs. The confidential informant works for the police (he counts as law enforcement). On the day defendant is to be busted, the informant calls the defendant and asks the defendant to double the weight of his usual cocaine purchase by cutting it with something other than cocaine. The informant says he wants to make more money when he turns around and sells the cocaine. What the informant has done is induce the defendant into committing a more serious charge. Our criminal defense attorneys say this is entrapment.

Case Example #3

In this case, the defendant is a suspected drug dealer.  A confidential informant sets up a “buy-bust,” where, following a purchase of drugs, the seller is arrested with the money just provided by the police. The confidential informant chooses the location for the transaction. The location is near a school. In New York, it is a more serious charge to sell drugs near a school. Our criminal defense attorneys say the drug dealer has been induced to commit the elevated crime because the informant chose the location, which was in a school zone.

Contact a Rochester Criminal Defense Attorney for Assistance

If you are facing any kind of criminal charges and have questions about the affirmative defense of entrapment, one of our experienced Rochester criminal defense lawyers can assist you. Contact King Law today to learn more about how we can help you to defend against the charges you are facing.

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