PEOPLE v. JAMES (1997)

Supreme Court did not err in denying the request of defendant to instruct the jury in its charge on entrapment that, in finding whether two undercover officers “induced or encouraged” him to sell cocaine, the jury should consider that “[i]n some circumstances, pleas to a defendant, based on sympathy or friendship, may * * * exert pressure on a defendant” (1 CJI [NY] 40.05).  Penal Law § 40.05 requires a showing “both that the proscribed conduct was ‘induced or encouraged’ by official activity and that the defendant had no predisposition to engage in such conduct” (People v. Butts, 72 N.Y.2d 746, 750-751, 536 N.Y.S.2d 730, 533 N.E.2d 660).   There is no reasonable view of the evidence that the undercover officers “induced or encouraged” defendant to sell cocaine to them based upon an appeal to sympathy or friendship (Penal Law § 40.05;  see generally, People v. Brown, 82 N.Y.2d 869, 870-871, 609 N.Y.S.2d 164, 631 N.E.2d 106;  People v. Redden, 181 A.D.2d 1016, 1017, 581 N.Y.S.2d 507, lv. denied 79 N.Y.2d 1053, 584 N.Y.S.2d 1020, 596 N.E.2d 418).   Defendant's reliance upon People v. Fuller, 130 A.D.2d 840, 515 N.Y.S.2d 625 to support the contention that defendant was entitled to the charge is unavailing.   In Fuller, supra, at 841, 515 N.Y.S.2d 625, defendant testified that the undercover officer posed as a fellow drug addict in need of a fix, pleading with defendant “to find something, to ‘[j]ust give it a try, I am sick * * * I[am] sick, man’.”   Here, defendant testified that the officers requested the cocaine only because “they wanted to get high.”

Judgment unanimously affirmed.

MEMORANDUM: