People v. DeGina

• Decision Date: 20 December 1988
• Citation: 533 N.E.2d 1037,72 N.Y.2d 768,537 N.Y.S.2d 8
• Parties: , 533 N.E.2d 1037 The PEOPLE of the State of New York, Respondent, v. Scott DeGINA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 8

537 N.Y.S.2d 8

72 N.Y.2d 768, 533 N.E.2d 1037

The PEOPLE of the State of New York, Respondent, v. Scott DeGINA, Appellant.

Court of Appeals of New York.

Dec. 20, 1988.

Julie Pamela Heit, New York City, for appellant.

Carl A. Vergari, Dist. Atty. (Richard E. Weill, White Plains, of counsel), for respondent.

OPINION OF THE COURT

KAYE, Judge.

This case, involving narcotics sales, presents two questions: first, was it error for the trial court to instruct the jury on the affirmative defense of entrapment over defendant's consistent protestations that he was not advancing an entrapment defense, but was in fact putting forth a different defense, and second--if error--was the error harmless?

Defendant's position both at trial and on appeal has been that he did not raise an entrapment defense and that it was error to charge the jury on that defense. Defendant claims that the entrapment instruction violated his fundamental right to present a defense of his own choosing and cannot be deemed harmless in any circumstances. Alternatively, he contends that because the entrapment charge shifted the burden of proof of criminal intent to him, permitted the jury to consider his predisposition to commit the crimes charged, and undermined the defense he actually raised, the error was prejudicial in this case.

The Appellate Division concluded that the defense was not entrapment and that the trial court's instruction therefore constituted error. 140 A.D.2d 537, 528 N.Y.S.2d 620. We agree. The Appellate Division, however, found the charge error harmless, and in that conclusion we cannot concur. While we need not reach defendant's broader argument that it is invariably reversible error to charge a jury on an affirmative defense disavowed by defendant, on this record the error cannot be deemed harmless.

Synopsis of the Trial Record

Resolution of both questions presented requires a summary of relevant portions of the trial record.

In a brief opening, defense counsel stated that, although defendant did not have the burden of proof, the evidence would show that an undercover agent--John DiDomenico--kept after his client to sell him drugs. "He was trying to ensnare an innocent man" into selling something he didn't want to sell. Defendant, however, did not sell the agent drugs. Counsel explained that, in order to "get this man off his back," defendant ultimately sold him what turned out to be talcum powder, after which the agent, a "professional deceiver," invented a case of drug sales against his client.

The People's key witness was the undercover narcotics agent, John DiDomenico, who testified that he had been introduced to defendant under the assumed name Frank DeMarco after telling a police informant he wanted to buy cocaine. DiDomenico met with defendant a number of times in the following days for the purpose of making a purchase, but on each occasion defendant said he had been unable to obtain any cocaine. Eventually, DiDomenico told defendant that he was tired of these abortive meetings, at which point defenda gave him his home telephone number. DiDomenico subsequently arranged to meet defendant outside a bar, where they agreed that DiDomenico would purchase a gram of cocaine. When he arrived, defendant insisted that he first needed the money to buy the cocaine, and DiDomenico gave defendant $125--which the officer conceded may well have been paid out of his own funds. Defendant returned several minutes later with an envelope that he claimed contained cocaine. Laboratory analysis later showed that what defendant had sold DiDomenico for his $125 was talcum powder, not cocaine.

According to DiDomenico, after he insisted that defendant make restitution, defendant and his friend, codefendant Robert Sanzo, gave him a tinfoil packet of opium and then offered to sell him opium and amphetamines that Sanzo had acquired from the drugstore where he worked. Having obtained a sample of the pills from Sanzo, ¹ DiDomenico agreed to purchase the drugs. He testified that defendant was present during the transaction, but it was Sanzo who actually possessed and delivered the drugs. Subsequent laboratory analysis showed the substances were indeed opium and amphetamines.

The only defense witness was defendant's mother, who testified that during the month when DiDomenico claimed he bought drugs from defendant, she had received 15 to 20 telephone calls from a man named Frank, who asked to speak to defendant but would not leave a telephone number. She heard her son speak to Frank only once, during which defendant yelled at Frank. Frank came to her house toward the end of the month, when defendant and his good friend Sanzo were working in the yard. Frank called Sanzo over and spoke to him alone. Sanzo later told her that if Frank telephoned again, he--Sanzo--wanted to speak to him.

At a precharge conference, the prosecutor requested an entrapment instruction, arguing that defendant had based his defense on the claim that he "could not form the necessary intent to, I believe this to be the defense, although I'm not sure, at the conclusion of the case, that he could not form an intent to sell these drugs, simply because of the fact that he was trapped." Over defense objection, the court declared that it would charge the jury on the entrapment defense.

In summation, defense counsel repeated the claim he had made in his opening--that DiDomenico was trying to "ensnare" his client by his constant efforts to get him to sell drugs, leading to defendant's sale of talcum powder simply to get a "pest off his back." That transaction, counsel argued, was the key to the entire case. Counsel asserted that it was Sanzo alone who later sold drugs to DiDomenico, and that DiDomenico had fabricated the story of defendant's involvement simply because he was infuriated and humiliated at having been tricked into buying talcum powder, possibly even with his own money.

The court thereafter instructed the jury on the affirmative defense of entrapment, noting that the burden of proving all material elements of the charged crimes beyond a reasonable doubt was on the People, but that defendant then bore the burden of proving the affirmative defense of entrapment by a preponderance of the evidence. After reading the elements of the defense from Penal Law § 40.05, the trial court again noted that defendant "has the burden of proving by a preponderance of the evidence that he was actively induced or encouraged to commit a crime he would not otherwise be disposed to commit and was thus 'entrapped' under the law." Defendant at this point reiterated that this was not the theory of his defense. During deliberations and shortly before the return of a guilty verdict, the jury asked for the definition of entrapment. The court reread only the statutory definition of entrapment and its instruction on defendant's burden of proof.

Defendant was convicted of several counts of criminal sale of a controlled substance, and the Appellate Division affirmed. While concluding that it was error to charge entrapment, the Appellate Division termed the error harmless beyond a reasonable doubt "given the overwhelming evidence regarding defendant's intent to commit the crimes for which he was convicted" (140 A.D.2d at 538, 528 N.Y.S.2d 620). We now reverse.

Discussion

The entrapment defense was introduced in New York--one of the last States to recognize it--in 1967, as part of the current Penal Law. Penal Law § 40.05 sets forth the elements of the defense: "that the defendant 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, seeking to obtain evidence against him for purpose of criminal prosecution, and 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." As it is designated an affirmative defense, the burden to establish these elements by a preponderance of the evidence is placed on the defendant--unlike other defenses, as to which the defendant has no burden and which the People must disprove beyond a reasonable doubt (Penal Law § 25.00 [1], [2] ).

A defendant thus assumes a substantial burden in asserting entrapment. Indeed, New York imposes a heavier burden than either the Federal courts, where entrapment is an ordinary defense--not an affirmative defense--or the Model Penal Code and those States following its formulation, where entrapment is a so-called "objective" affirmative defense. In contrast to Penal Law § 40.05, which requires that defendant prove that he or she had no disposition to commit the acts charged (see, People v. Calvano, 30 N.Y.2d 199, 203-204, 331 N.Y.S.2d 430, 282 N.E.2d 322), under the Model Penal Code approach the character of the particular defendant is not a relevant subject of inquiry, the pertinent question being the nature of the police conduct and whether it was such as to cause an ordinary person to commit the crime (ALI Model Penal Code § 2.10, comment, at 20 [Tent Draft No. 9] ).

It should be borne in mind, however, that affirmative defenses were introduced into the law not "as a hardening of attitudes in law enforcement [but] rather as a civilized and sophisticated amelioration." (People v. Patterson, 39 N.Y.2d 288, 306, 383 N.Y.S.2d 573, 347 N.E.2d 898 [Breitel, Ch. J., concurring].) As such, it is necessary to guard against abuse of affirmative defenses "to unhinge the procedural presumption of innocence" or "to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf." (Id., at 305, 383 N.Y.S.2d 573, 347 N.E.2d 898.)

Applying these legal standards to the factual record in this case, we agree with the conclusion reached by the Appellate Division: "a fair reading of the record establishes that the entrapment defense was not raised" (140...