People v. Velasquez

Appellate Division of the Supreme Court of New York

People v. Velasquez

77 A.D.3d 503, 909 N.Y.S.2d 438

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 2010

StatusPublished

Cited by1 cases

This text of 77 A.D.3d 503 (People v. Velasquez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Velasquez, 77 A.D.3d 503, 909 N.Y.S.2d 438 (N.Y. Ct. App. 2010).

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Opinion

Judgment, Supreme Court, New York County (A. Kirke Bartley, J), rendered February 26, 2008, convicting defendant, after a nonjury trial, of attempted rape in the first degree, attempted criminal sexual act in the second degree, attempted disseminating indecent material to minors in the first degree (two counts) and attempted endangering the welfare of a child, and sentencing him to an aggregate term of five years, unanimously affirmed.

Defendant did not preserve his argument that he established the affirmative defense of entrapment as a matter of law, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Furthermore, in the exercise of our factual review power, we find that the court’s verdict rejecting that defense was not against the weight of the evidence. The police actions, both on the Internet and at the scene of the crime, merely provided defendant with the opportunity to commit sexual crimes against a person he believed to be a 12-year-old girl (see People v Brown, 82 NY2d 869, 871-872 [1993]), and none of these actions can be viewed as “active inducement or encouragement” (Penal Law § 40.05). Moreover, there was significant evidence of defendant’s predisposition to commit the crimes charged. Concur—Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.

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Judgment, Supreme Court, New York County (A. Kirke Bartley, J), rendered February 26, 2008, convicting defendant, after a nonjury trial, of attempted rape in the first degree, attempted criminal sexual act in the second degree, attempted disseminating indecent material to minors in the first degree (two counts) and attempted endangering the welfare of a child, and sentencing him to an aggregate term of five years, unanimously affirmed.

Defendant did not preserve his argument that he established the affirmative defense of entrapment as a matter of law, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Furthermore, in the exercise of our factual review power, we find that the court’s verdict rejecting that defense was not against the weight of the evidence. The police actions, both on the Internet and at the scene of the crime, merely provided defendant with the opportunity to commit sexual crimes against a person he believed to be a 12-year-old girl (see People v Brown, 82 NY2d 869, 871-872 [1993]), and none of these actions can be viewed as “active inducement or encouragement” (Penal Law § 40.05). Moreover, there was significant evidence of defendant’s predisposition to commit the crimes charged. Concur—Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.

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Bluebook (online)

77 A.D.3d 503, 909 N.Y.S.2d 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-velasquez-nyappdiv-2010.

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