The affirmative defense of entrapment is codified in New York under New York Penal Law 40.05. While it is rare, police officers, particularly those in the NYPD can be under strict performance guidelines that govern their career advancement. Occasionally, these pressures, can sometimes tempt a police officer to induce or cause people to commit crimes who would not otherwise commit them. When a defendant is:
- enticed or persuaded to commit a crime, by the police or informants under their direction while trying to find incriminating information in order to prepare criminal charges to be brought, and
- where the defendant was not the kind of person who had a predisposition to commit the sort of crime they are arrested for, entrapment may be a defense.
If you or a loved one has been entrapped by the police call our experienced New York Criminal Attorneys for a free consultation.
Entrapment has been documented in a variety of scenarios and entrapping criminal suspects is not conduct that is exclusive to the NYPD. The FBI and ATF have taken advantage of mentally handicapped individuals to justify their expensive budgets, for programs that show few results, or because the police work that needed to be done was too dangerous, or the federal agencies were simply outfoxed by the criminals they were sent to target.
The following hypothetical scenario sets out an example of the sort of entrapment tactics that the ATF has used. The ATF establishes a fake illegal gun shop. They then find a mentally disabled drug addict with an IQ of approximately 50 to promote the fake illegal gun shop, set up fake gun buys, and the agents befriend the addict. They teach him how to operate a machine gun. They pay him to get the shop’s logo tattooed on his neck.
The ATF operates the fake shop for months, but with very few sales. They send their mentally disabled promoter into the street to try and sell a machine gun. Instead of selling the machine gun, criminals steal the machine gun from the ATF agent’s car. Since very few people have purchased guns from the fake gun store the ATF agents initiate a sting. Eventually as the sting wound up, the mentally disabled man is arrested and charged with the crime of being a felon in possession of a firearm. The mentally disabled man had no history of being interested in firearms or even owning a gun prior to involvement with the ATF agents.
Entrapment cases often involve vice crimes like soliciting prostitution. Attractive female vice officers may use dating websites to meet with men and then convince them to have sex for money where the men targeted would normally be regular family men with wives at home. Vice police have even arrested people in prostitution stings where the police literally asked the defendants to have sex with them for money. Many people do not know that the police can and will explicitly lie and entice people to commit crimes in order to secure arrests and prosecutions. Police have also been known to entice unhappy spouses into ordering murders for hire by staging potential affairs.
Entrapment is an issue of fact for the jury at trial. It cannot be determined pretrial. If you anticipate taking your criminal charges to trial call our experienced New York Criminal Attorneys today. Don’t let dishonest police tactics cause you or your loved ones to go to prison or pay outrageous fines. We have experience taking affirmative defenses to juries and convincing them.
In any prosecution for an offense, 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.