When law enforcement agencies (local, state or federal) believe that criminal activity is going on or being planned, they may use undercover officers or agents to obtain evidence they can use to prove that criminal activity. Sometimes, they also use confidential informants (CIs) who are not in law enforcement for this purpose.
People often become CIs to lessen the criminal consequences they may otherwise face for engaging in illegal behavior. CIs can be particularly valuable because many times they’re known and trusted by the people under investigation.
If you’ve been charged with a crime based on evidence and testimony provided by undercover law enforcement personnel and possibly CIs, you may have had friends or family say you were “entrapped.” Maybe you remember seeing movies or TV shows where undercover officers become so zealous in their efforts to arrest people that they lead them to commit a crime.
You can’t just claim entrapment because undercover officers or CIs were used in the investigation. The law specifies what is considered entrapment.
How does New York state law define it?
Under New York state law, entrapment is considered an “affirmative” defense that someone may present. By claiming entrapment, a defendant says they “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…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.” The law further states, “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”
If an undercover officer asks someone to sell them drugs and they do, that’s not entrapment. If an undercover officer joins a group talking casually about how they might rob a store and encourages them to do it, provides the weapons and drives them to the bank, that would be entrapment. Of course, that’s a rather exaggerated example.
Every situation is unique. Whether entrapment is a viable defense will depend on how things played out, how many witnesses there were and what other evidence you might have. With experienced legal guidance, you can better determine if you were entrapped as described under New York law.