Top Things to Know About an Entrapment Defense

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. While 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

First, you should know that 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 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.

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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