Is Entrapment a Legal Defense?

Under New York Law, “Entrapment” (P.L. 40.05) is an affirmative legal defense to a crime. If you feel that you’ve been set up by the police or other law enforcement officer, and were actively encouraged or induced by them to engage in criminal behavior, the defense of entrapment may be available to you. The defense of entrapment most commonly occurs in crimes involving the sale, distribution, or possession of illegal drugs. Cody Warner is an NYC criminal defense attorney and he is available to help you determine if you may have recourse against a criminal conviction because you were entrapped.

What Is The Definition of Entrapment?

Entrapment is an affirmative defense to a crime under New York Penal Law Section 40.05. With an affirmative defense, you should be found not guilty–even if the prosecution can prove each element of the crime against you beyond a reasonable doubt–if you successfully establish the affirmative defense by a preponderance of the evidence.

The affirmative defense of entrapment may be available depending on the conduct of the police officers before and during the commission of a crime. If you’ve been induced by the police to engage in a criminal act, that may constitute entrapment.

It is not enough that you have been given the opportunity to commit a crime. The law expects people to resist violating the law under most circumstances. Rather, entrapment occurs when the police engage in extreme behavior that induces or encourages a person to commit a crime. 

Entrapment requires a showing by the defense that:

•     A public servant (typically a police officer or other law enforcement personnel)
•     Seeking to obtain evidence against the defendant
•     Used methods
•     That created a substantial risk
•     That the offense would be committed by a person
•     Not otherwise predisposed to commit such offense.

Thus, police conduct and the state of the defendant’s mind are primary considerations in evaluating whether entrapment occurred.

Examples of Entrapment

Example 1: Sam Brown is accused of selling illegal drugs to Anna Smith, an undercover police officer. Sam was at a party when he met Anna.  Anna asked Sam if he had any drugs she could buy from him. Sam, who had never sold drugs to anyone before, was skeptical and asked Anna if she was an undercover officer. When Anna said no, Sam sold her illegal drugs.

This would not be considered to be entrapment. Police officers are allowed to lie, and while Anna did give Sam the opportunity to engage in illegal behavior, she did not use any extreme behavior to encourage Sam to sell drugs to her.

Example 2: Sam Brown is accused of selling illegal drugs to Anna Smith, an undercover police officer. Sam was at a party when he met Anna. Anna said she wanted to buy some drugs for her mother who was suffering a great deal of pain from a recent operation. Sam, who had never sold drugs before, was skeptical and refused to sell any drugs to Anna. However, Anna repeatedly begged Sam throughout the night for him to sell her drugs, and she accused him of not having sympathy for an ailing person. Finally, Sam relented and sold Anna some illegal drugs. Anna immediately arrested Sam.

This would likely be considered entrapment. Anna’s relentless and continuing lies and pressure on Sam created a substantial risk that he would sell her drugs, even though he was not otherwise predisposed to doing so.

Example 3: Sam Brown is accused of selling drugs to Mike Garcia. Mike pressured Sam over the course of several weeks to sell him drugs to help his ailing father. Sam finally relents and sells Mike illegal drugs.

This is not entrapment. Mike is a private citizen, not an undercover police officer. The entrapment defense is only available against public servants.

The Burden Of Proof Is On The Defendant

Because entrapment is an affirmative defense, the burden of proof is on the defendant to establish the defense. The defendant must prove by “a preponderance of the evidence” that he was entrapped. This means that it was more likely than not that entrapment occurred.

Contact NYC Criminal Defense Attorney Cody to Determine if Entrapment Applies to Your Case

If you believe that you’ve been entrapped by a public official who induced you to commit a crime, you need representation from a knowledgeable, experienced, and successful NYC criminal defense attorney. Contact Cody today to learn more about your possible defenses and how he can develop the best strategy for your case.