What Is Entrapment In New York Criminal Defense Law?

Sting operations have been part of law enforcement for at least four decades. They can entice a minor criminal into committing major crimes. In some cases, they can entice someone who has never committed a crime in their life into making a deadly mistake that can set them up for a mandatory minimum sentence.

Stings don’t require a warrant to set up. There’s no limitations on the length of the operation, or “the intimacy of the relationships formed, or the degree of deception used, the degree of temptation offered and the number of times it is offered,” as reported by The New Yorker. Stings can target people even if there is no evidence they’ve ever committed a crime.

Fortunately in New York entrapment is available as an affirmative defense.

New York Penal Law § 40.05  sets out the conditions for entrapment.

“He or she was induced or encouraged to do so by a public servant, [or by a person acting in cooperation with a public servant,] who was seeking evidence against him/her for the purpose of criminal prosecution and the methods used to obtain the evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.” 

The last part is important: to make this defense work we have to show that you were not otherwise disposed to commit this crime. This can be easier if this was the first time you’ve ever been charged with a crime. It’s virtually impossible if you’ve ever been engaged in criminal conduct of the same nature or have ever been convicted of a crime of the same nature. This must be proved by a preponderance of the evidence.

See also:

Why Good Defense Lawyers Accept Guilty Clients

When Is it Smart to Take a Plea Deal?

5 Grim Yet Surprising Facts About Our Criminal Justice System

You would think that law enforcement officers would never try to encourage a defendant who wouldn’t commit a crime, but that’s simply not the case. There have been many cases where law enforcement officers have gone after individuals that they knew to be vulnerable so they could set up a sting and create what amounts to a quick, easy arrest.

We must also prove that the encouragement was active. New York Penal Law § 40.05 also notes that merely providing an “opportunity” to commit a crime does not constitute entrapment.

The most common stings are for drug crimes, firearm crimes, and prostitution crimes, but we’ve seen them in other cases as well.

There is no such thing as a slam-dunk defense. Even if you think your case or your loved one’s case involved an element of entrapment, you will need a skilled and focused criminal defense lawyer who has the time and energy to truly pursue your case.

If you think entrapment played a role in your case, reach out. Make an appointment with the Greco Neyland team today.

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About The Author

Jeffery Greco

Jeffery Greco is an attorney providing legal services covering Criminal Defense and Criminal Defense: White Collar and Criminal Defense: DUI / DWI. Jeffery Greco, who practices law in New York, New York, was selected to Super Lawyers for 2020 - 2023. This peer designation is awarded only to a select number of accomplished attorneys in each state. The Super Lawyers selection process takes into account peer recognition, professional achievement in legal practice, and other cogent factors. Prior to becoming an attorney, he studied at South Texas College of Law Houston. He graduated in 2004. After passing the bar exam, he was admitted to legal practice in 2005.

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