People v. Butts

• Decision Date: 20 December 1988
• Citation: 533 N.E.2d 660,72 N.Y.2d 746,536 N.Y.S.2d 730
• Parties: , 533 N.E.2d 660 The PEOPLE of the State of New York, Respondent, v. Otis BUTTS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 730

536 N.Y.S.2d 730

72 N.Y.2d 746, 533 N.E.2d 660

The PEOPLE of the State of New York, Respondent, v. Otis BUTTS, Appellant.

Court of Appeals of New York.

Dec. 20, 1988.

Martha Krisel and Philip L. Weinstein, New York City, for appellant

Robert M. Morgenthau, Dist. Atty. (Paul Schectman and Mark Dwyer, New York City, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

The dispositive question in this appeal is whether the evidence at trial reasonably supported defendant's request for a jury charge on the affirmative defense of entrapment. The defendant was convicted, after a jury verdict, of making four separate sales of cocaine. The Trial Judge denied defendant's request for an entrapment charge on the first three sales and granted it as to the last. The Appellate Division, relying on decisions of various Federal Courts of Appeals (see, e.g., United States v. Dorta, 4th Cir., 783 F.2d 1179; United States v. Rey, 5th Cir., 706 F.2d 145; United States v. Mayo, 2nd Cir., 705 F.2d 62; Sylvia v. United States, 1st Cir., 312 F.2d 145), affirmed on the ground that defendant's testimonial denial that he made the first three sales precluded him from pleading the inconsistent entrapment defense as to them. While we reject the rule applied by the court below, we nevertheless affirm for the reasons which follow.

The People presented testimony showing that defendant, a security guard at a public junior high school in Manhattan, made a total of four sales of cocaine to two different undercover officers--each posing as an employee of the Board of Education--during a three-day period in May 1985. Testifying in his own defense, defendant admitted the fourth sale but flatly denied the first three. He claimed that Detective Donawa had asked him to obtain cocaine on five or six separate occasions, that he refused the detective's request each time but the last, and that he obliged the detective on that occasion but solely as a favor to a friend. Defendant also testified that Officer Lewis, the other undercover officer, had approached him on several occasions but that he denied her request each time.

On this appeal, defendant contends that the trial court's refusal to give a jury charge on entrapment as to the first three sales was error because, first, a defendant's denial that he committed a crime does not, without more, preclude a charge on the affirmative defense of entrapment and, second, the evidence presented at the trial was sufficient to support such a charge. We agree with defendant's first contention only.

It is established New York case law that a defendant's entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant's outright denial that he was involved in the crime (see, People v. Padgett, 60 N.Y.2d 142, 146, 468 N.Y.S.2d 854, 456 N.E.2d 795; People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 260 N.E.2d 527; cf., People v. Asan, 22 N.Y.2d 526, 532, 293 N.Y.S.2d 326, 239 N.E.2d 913; People v. Moran, 246 N.Y. 100, 103, 158 N.E. 35). We perceive no reason why this general rule should not also apply to the affirmative defense of entrapment (see, People v. Felder, 32 N.Y.2d 747, 344 N.Y.S.2d 643, 297 N.E.2d 522, affg. 39 A.D.2d 373, 378, 334 N.Y.S.2d 992; Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 885, 886, 99 L.Ed.2d 54; People v. Demma, 9th Cir., 523 F.2d 981; cf., People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 462 N.E.2d 143; People v. Lee, 35 N.Y.2d 826, 362 N.Y.S.2d 860, 321 N.E.2d 781). ¹ Thus, we reject the rationale of the Appellate Division that defendant's testimony that he did not make the first three sales "eliminateany justification for an entrapment charge" (131 A.D.2d, 244, 250, 520 N.Y.S.2d 564).

We note, moreover, that the rule of the Federal courts, adopted by the court below, categorically precluding an entrapment charge when the defendant denies the crime (see, e.g., United States v. Dorta, supra; United States v. Rey, supra; United States v. Mayo, supra; Sylvia v. United States, supra), has recently been rejected by the Supreme Court in Mathews v. United States (supra). ² In Mathews, an employee of the Small Business Administration was charged with unlawfully accepting a gratuity when he borrowed money from a participant in the SBA program. The employee admitted receiving the money but denied any criminal intent, claiming that it was a personal loan from a friend and was unrelated to his SBA duties. He was convicted after the trial court refused to charge the affirmative defense of entrapment. The Supreme Court, however, reversed. The court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury" could find in his favor (485 U.S., at ----, 108 S.Ct., at 886, supra ). That standard, apparently based upon Federal common law (see, Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 ), is the same as that which has been consistently applied by this court.

When determining whether to give a charge on a claimed defense, the trial court must view the evidence in the light most favorable to the defendant. Upon defendant's request, the court must instruct the jury on the defense if it is sufficiently supported by the evidence; failure to do so may constitute reversible error (see, People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188; People v. Steele, supra, at 529, 311 N.Y.S.2d 889, 260 N.E.2d 527). Also, it is basic that a "jury may accept portions of the defense and prosecution evidence or either of them" (People v. Asan, supra, at 530, 293 N.Y.S.2d 326, 239 N.E.2d 913; see also, People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 359 N.E.2d 1357). Therefore, inconsistency in claimed defenses or even between a defendant's testimony and a defense "should not deprive defendant of the requested charge" if the charge would otherwise be warranted by the evidence (People v. Padgett, supra, at 146, 468 N.Y.S.2d 854, 456 N.E.2d 795; see also, People v. Perry, supra, at 851, 473 N.Y.S.2d 966, 462 N.E.2d 143; People v. Steele, supra, at 529, 311 N.Y.S.2d 889, 260 N.E.2d 527).

Hence, in People v. Steele (supra), we held that the defendant, charged with assault, was entitled to an instruction on defense of a third person, despite his testimony that he was not even at the scene of the crime (see also, People v. Padgett, supra; People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257; People v. Felder, supra). Similarly, in People v. Perry (supra), we held that the defendant was entitled to a charge on intoxication, even though his claim of inebriation, negating the requisite criminal intent, was entirely inconsistent with his testimonial denial of the criminal conduct and his insistence that he was fully aware of his actions (accord, People v. Lee, supra).

The critical question in those cases, as in the present one, was not whether the claimed defense was consistent with the defendant's testimony or...