People v. Calvano, 76 N.Y.2d 862 (1990)
Merely providing a defendant with the opportunity to commit a crime is insufficient to warrant a jury instruction on the affirmative defense of entrapment; the defendant must demonstrate active inducement or encouragement creating a substantial risk that the offense would be committed by a person not otherwise disposed to do so.
Summary
The New York Court of Appeals affirmed the defendant’s conviction for patronizing a prostitute, holding that the trial court did not err in denying the defendant’s request for a jury charge on the affirmative defense of entrapment. The Court reasoned that the evidence presented, even when viewed most favorably to the defendant, did not reasonably support the defense. The interaction between the undercover officer and the defendant merely presented an opportunity to commit the crime, which is insufficient to establish entrapment. The defendant failed to demonstrate active inducement or encouragement by law enforcement.
Facts
An undercover police sergeant, dressed as a woman, was standing on a street corner in Syracuse. The defendant drove up to the curb and the officer approached the car. The officer asked if the defendant was looking for a date and the defendant replied affirmatively. After a brief negotiation about price and services, the defendant agreed to pay $25 for oral sodomy. The officer directed the defendant to drive around the corner, where he was arrested by backup units. An undercover lieutenant overheard and corroborated the conversation. The defendant testified that the officer approached him and offered oral sodomy for money, but he did not respond. He denied agreeing to exchange money for sex.
Procedural History
The defendant was convicted in Syracuse City Court of patronizing a prostitute. The Onondaga County Court affirmed the conviction. The defendant then appealed to the New York Court of Appeals, arguing that the trial judge erred by denying his request for a jury charge on the affirmative defense of entrapment. The Court of Appeals affirmed the County Court’s order.
Issue(s)
Whether the trial court erred in denying the defendant’s request for a jury charge on the affirmative defense of entrapment, where the evidence showed that an undercover officer offered the defendant the opportunity to engage in prostitution.
Holding
No, because the evidence did not demonstrate active inducement or encouragement by a public official creating a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Merely providing an opportunity to commit a crime is insufficient to establish entrapment.
Court’s Reasoning
The Court of Appeals held that a trial court must charge entrapment if the evidence, viewed favorably to the defendant, reasonably supports the defense. The defendant bears the burden of proving entrapment by a preponderance of the evidence, showing: (1) active inducement or encouragement by a public official; and (2) a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. The court emphasized that the officers merely afforded the defendant an opportunity to commit the offense, which is insufficient for entrapment. “Merely asking a defendant to commit a crime is not such inducement or encouragement as to constitute entrapment.” The Court cited Penal Law § 40.05 and People v. Thompson, 47 N.Y.2d 940, 941 (1979), to support this conclusion. The court distinguished between providing an opportunity and actively inducing someone to commit a crime they were not predisposed to commit. The court noted that denying the crime doesn’t automatically support or defeat an entrapment defense. Quoting Mathews v. United States, 485 US 58, 62, the court acknowledged this allowance. The critical factor was the lack of evidence suggesting the defendant was actively persuaded or coerced into committing the offense.