People v. Williams

• Decision Date: 30 January 1963
• Parties: The PEOPLE of the State of New York v. Dorothy WILLIAMS, Defendant. The PEOPLE of the State of New York v. Ruth FREEMAN, Defendant.
• Court: New York County Court

Page 527

237 N.Y.S.2d 527

38 Misc.2d 80

The PEOPLE of the State of New York v. Dorothy WILLIAMS, Defendant.

The PEOPLE of the State of New York v. Ruth FREEMAN, Defendant.

Oneida County Court.

Jan. 30, 1963.

Arthur A. Darrigrand, Dist. Atty., for the People.

Anthony J. Fernicola, Utica, for defendant, Dorothy Williams.

Ira M. Ball, Utica (Anthony J. Fernicola, Utica, of counsel on the appeal), for defendant, Ruth Freeman.

JOHN J. WALSH, Judge.

In these two appeals, this Court is asked to reassess the so-called 'defense of entrapment doctrine' as it has been traditionally recognized in New York State in view of the 1932 decision by the United States Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 and subsequent cases.

The Williams case involves alleged inducement by a police officer decoy to commit prostitution.

The Freeman case involves alleged inducement by a police officer decoy to commit prostitution, which inducement was inspired by information gleaned from a wiretap. It is claimed that the resulting conviction was thus the fruit of a tainted tree.

Defense of Entrapment

The defendants argue that there has been an erroneous acceptance of the contention that the defense of entrapment was not recognized in New York State. ¹ They further contend that even though age and general acceptance may have given legal validity to an erroneous doctrine which found its origin in Board of Commissioners v. Backus, 29 How.Pr. 33 [1864] and in some subsequent opinions, ² the time has arrived to reappraise that rejection in the light of federal court decisions since 1932. ³

It is sound public policy to seek to prevent rather than aid the commission of crime 'The liability of men to fall into crime by consulting their interests and passions is unfortunately great, without the stimulus of encouragement. No state, therefore, can safely adopt a policy by which crime is to be artifically propagated.' Commonwealth v. Bickings, 12 Pa.Dist.R. 206.

Section 2 of the Penal Law defines as a 'principal'

A person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a 'principal'.'

It is a principle of law that in those cases involving a violation of individual rights of a person, an entrapment must not be under such circumstances as will amount to the consent of the person affected. If want of consent of the person is an element of a crime, an act done with consent of that person cannot be made the basis of a criminal charge. ⁴

To what extent the Courts should permit entrapment in order to prevent or punish crime constitutes a question of morality as well as law.

In People v. Mills, 178 N.Y. 274, 70 N.E. 786, the original intent to cause the removal of indictments from the files of the district attorney arose in the mind of the defendant during a conversation with a decoy sent to him with the knowledge of the prosecutor. The indictments were taken with permission of the court and were eventually delivered to the defendant.

The majority of the court held that since the defendant 'proposed the scheme and put in motion the forces by which the indictments were actually removed from the files of the court and delivered to him' he was guilty as a principal. The majority further held that 'the records were the property of the state, not of the district attorney, and that the latter could not lawfully give them away or permit them to be taken by the defendant.'

On the question of the entrapment of the defendant and the morality of the means used, the majority said:

'While the courts neither adopt nor approve of the action of the officers, which they hold was unauthorized, still they should not hesitate to punish the crime actually committed by the defendant. It is their duty to protect the innocent and punish the guilty. We are asked to protect the defendant, not because he is innocent, but because a zealous public officer exceeded his powers and held out a bait. The courts do not look to see who held out the bait, but to see who took it.'

There were strong dissents by Judge O'Brien and Judge Bartlett. Judge O'Brien said (178 N.Y. p. 301, 70 N.E. p. 796):

'If the prosecuting officers of the state can tempt every evil-disposed person into overt criminal acts and then prosecute them, there is an opportunity doubtless, to fill the prisons to overflowing. But I think we ought not to approve of that at the expense of destroying fundamental maxims of the law.'

Judge Bartlett wrote (178 N.Y. p. 309, 70 N.E. p. 799): 'A sound public policy requires that the State of New York should be estopped, as is a private individual, who seeks to induce a person by scheme or device to commit a crime.

'It well comports with the dignity of the state to say that it repudiates this action of its officials and permits this defendant, although unworthy, to go free, because he stands convicted of a crime which he never would have committed save by the assistance of those who on this occasion, however proper their motives, have misrepresented it.'

This Court is of the opinion that the Mills case did not outlaw a defense of entrapment in New York State as has been generally assumed, but rather that this defense was rejected in this particular case upon the criterion of 'origin of intent' which the court found in the mind of the defendant and not in the mind of the prosecutor or the decoy. ⁵ A careful reading of the record in that case sustains this finding.

In the next case to come before the New York Courts, People v. Conrad, 102 App.Div. 566, 92 N.Y.S. 606, affirmed in 182 N.Y. 529, 74 N.E. 1122, the defendant was thought to be engaged in committing abortions.

'The conviction of the defendant was brought about by means of a trap arranged by the officers of the County Medical Society. It is claimed that, as the defendant was lured into the commission of the claimed overt acts, he cannot be punished therefor. This contention has recently been the subject of examination by this Court and by the Court of Appeals and decided adversely to the contention of the defendant. He was not a passive instrument in the hands of the entrapping parties. He did the act with which he was charged voluntarily, with full knowledge of the subject, and of the consequences which would flow therefrom. Under such circumstances, setting a trap by which he was caught is not a defense.' (102 App.Div. 566, 567-568, 92 N.Y.S. 606, 607)

Unlike the 'origin of intent' test of entrapment exemplified by the Mills case, the Conrad case turned upon the 'pre-disposition of the defendant to commit the offense' if the opportunity presented itself. ⁶ The mere fact that the public officials provided the opportunity for the defendant was held not to constitute a defense. ⁷

The Courts have recognized that there are certain types of criminal activity which by their very nature are committed secretly. Gambling, ⁸ prostitution ⁹ and the sale of narcotics ¹⁰ are examples of such offences. Such offenses are extremely difficult to detect and almost impossible to punish without some degree of active participation and inducement by a government agent. ¹¹

An examination of the case law in this State leads this Court to the conclusion that a defendant has a perfect right to raise as a factual issue, a defense of entrapment.

It is readily conceivable that situations will arise wherein as a result of compulsion, duress, deceit, misrepresentation, or constant pressure a defendant might be entrapped into the commission of crime. ¹² No civilized and moral society could countenance such a conviction.

On the other hand, where the criminal intent originates initially in the mind of a defendant, the fact that the police officers used decoys or furnished an opportunity for or to aid the accused in the commission of a crime in order to prosecute him therefor constitutes no defense on the ground of entrapment. ¹³

Likewise, it is not entrapment to furnish an opportunity to a person who is ready and willing to commit an offense whenever the opportunity presents itself. ¹⁴

There is a new concept of entrapment urged by which the courts are asked to adopt an objective test, whereby the court will consider only the nature of the police activity involved, without reference to the 'origin of intent' or 'predisposition of the particular defendant.' Thus, police conduct which 'falls below standards, to which common feelings respond, for the proper use of governmental power' would bar a conviction. ¹⁵

To what extent New York State is now prepared to adopt such a test must remain for a court of final review to rule, and not for a court of intermediate appeal to surmise. ¹⁶ This court must content itself with reviewing this record on the basis of the present tests and as a factual issue. The transcript of testimony in the Williams case indicates (pp. 9-14) that the police officer went to a bar in the city of Utica to act as a decoy for defendant who was pointed out to him by a detective. The officer stood next to the defendant and started a conversation with her and bought her a drink. He told her he was a book salesman, selling encyclopedias and that he was looking for someone to help sell them. He told her that he had been out with a girl the evening before and that he paid her eight dollars. There was further testimony that the defendant told him she had a son and the officer told her that he might be able to use her son in his business and that he would like to talk to him sometime and that thereafter he went with her to her apartment after paying her ten dollars.

The defendant testified that the officer said 'I'll give you ten dollars for us to go out and have some fun'; that he gave her ten dollars which she took and left the grill. She...