People v. Keyes

• Decision Date: 13 May 1993
• Citation: People v. Keyes, 597 N.Y.S.2d 785, 193 A.D.2d 936 (N.Y. App. Div. 1993)
• Parties: The PEOPLE of the State of New York, Respondent, v. William H. KEYES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 785

597 N.Y.S.2d 785

193 A.D.2d 936

The PEOPLE of the State of New York, Respondent, v. William H. KEYES, Appellant.

Supreme Court, Appellate Division Third Department.

May 13, 1993.

Terence L. Kindlon, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Michael J. Connolly, of counsel), Albany, for respondent.

Before WEISS, P.J., and LEVINE, MERCURE, MAHONEY and CASEY, JJ.

WEISS, Presiding Justice.

Appeal from a judgment of the County Court of Albany County (Keegan, J.), rendered December 23, 1991, upon a verdict convicting defendant of four counts of the crime of promoting a sexual performance by a child.

Defendant was indicted on five counts of promoting a sexual performance by a child, the circumstances of which are fully set forth in the opinion of this court on a prior appeal in this matter (141 A.D.2d 227, 535 N.Y.S.2d 162, affd. 75 N.Y.2d 343, 553 N.Y.S.2d 81, 552 N.E.2d 617). Upon remittitur, the matter proceeded to trial and defendant was convicted on four counts and sentenced as a second felony offender to concurrent prison terms of 3 1/2 to 7 years on each conviction. This appeal followed.

Defendant contends that, as a matter of law, the evidence proved that he was entrapped by City of Albany Police Officers who actively induced and encouraged him to commit the crimes and that he had no predisposition to criminal conduct prior to the police activity (see, Penal Law § 40.05). Initially, we note that the affirmative defense of entrapment must be established by a preponderance of the evidence (Penal Law § 25.00[2]. We find no merit to defendant's contention that he proved his entrapment as a matter of law. While conceivably it is possible to prove the affirmative defense of entrapment as a matter of law (cf., Jacobson v. United States, 503 U.S. ----, 112 S.Ct. 1535, 118 L.Ed.2d 174), that defense is essentially a factual issue (see, People v. McGee, 49 N.Y.2d 48, 61, 424 N.Y.S.2d 157, 399 N.E.2d 1177, cert. denied sub nom. Quamina v. New York, 446 U.S. 942, 100 S.Ct. 2167, 64 L.Ed.2d 797; see also, People v. Torres, 185 A.D.2d 257, 585 N.Y.S.2d 787, lv. denied 80 N.Y.2d 977, 591 N.Y.S.2d 146, 605 N.E.2d 882). The facts as proven by the evidence established that defendant's telephone number with the notation "young boys wanted" was inscribed on the wall of a booth for viewing of pornographic movies in an adult book store. It was also proven that the phone number had been issued to defendant sometime following his February 1984 conviction for promoting the sexual performance of a child. That previous conviction was predicated upon the seizure of a large quantity of child pornography found in defendant's apartment and upon a confession in which he admitted soliciting young boys and taking sexually explicit photographs of them.

With this background, the police were justified in making their initial contacts. The first contact demonstrated that defendant was fully aware of the inscription. The early contacts, while indicating some reluctance on defendant's part to have dealings with a stranger, also indicated a willingness on his part to become involved with child pornography. The record establishes, at best, factual questions relating to the entrapment defense. After weighing the relative probative force of conflicting testimony and the relative strength of conflicting inferences which may be drawn therefrom, and giving due deference to the verdict of the jury, we conclude that the verdict was not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672; People v. Davis, 147 A.D.2d 817, 818, 537 N.Y.S.2d 906, lv. denied 74 N.Y.2d 807, 546 N.Y.S.2d 565, 545 N.E.2d 879; People v. Hochberg, 62 A.D.2d 239, 249, 404 N.Y.S.2d 161).

Similarly, the police activity...