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1
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OPINION
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EXTRACTED KEY WORDS
AFFIRM ENTRAPMENT COMMIT COURT PENAL LAW UNDERCOVER OFFICERS JUDGE REQUEST CHARGE EVIDENCE NY2D MEMORANDUM COUNTY COURT AFFIRMATIVE DEFENSE BUTTS INDUCEMENT ENCOURAGEMENT OFFENSE SUPRA TESTIMONY UNDERCOVER POLICE PUBLICATION CONVICTION SYRACUSE CITY JURY WARRANT STANDING ORAL SODOMY |
THE PEOPLE &C., RESPONDENT, v. WALTER BROWN, APPELLANT.
82 N.Y.2d 869, 631 N.E.2d 106, 609 N.Y.S.2d 164 (1993).
December 16, 1993
CoCt No. 247 (1993 NY Int. 260)
Decided December 16, 1993
_________________________________________________________________
This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Joseph A. Barrette, for Appellant.
Gordon J. Cuffy, for Respondent.
MEMORANDUM:
The order of the County Court should be affirmed.
Defendant was convicted in Syracuse City Court of patronizing a
prostitute in the fourth degree (Penal Law § 230.03). County Court,
Onondaga County, affirmed the conviction. Defendant's principal
argument on appeal to this Court is that it was reversible error for
the Trial Judge to deny his request for a jury charge on the
affirmative defense of entrapment (Penal Law § 40.05). We affirm,
finding no evidentiary basis on this record to warrant the requested
instruction.
A trial court must charge entrapment on a defendant's request where
the evidence adduced at trial, when viewed in the light most favorable
to the defendant, reasonably and sufficiently supports the defense
(see, People v Butts, 72 NY2d 746, 748-750; People v Watts, 57 NY2d
299, 301). Defendant bore the burden of establishing entrapment by a
preponderance of the evidence (Penal Law § 25.00(2)), that is, to
demonstrate that: (1) he was actively induced or encouraged to commit
the offense by a public official; and (2) such inducement or
encouragement created a "substantial risk" that the offense would be
committed by defendant who was not otherwise disposed to commit it
(Penal Law § 40.05; People v Butts, supra, at 750-751; People v
Alwadish, 67 NY2d 973, 974).
There was trial testimony adduced by the People that at approximately
10:45 p.m. on May 22, 1990 a male undercover police sergeant dressed
as a female was standing near a street corner in the City of Syracuse
when defendant pulled over to the adjacent curb in front of him. The
undercover officer testified that he approached the front passenger
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