Entrapment Defense in Drug Sting Operations: Does It Work in NYC?

Thanks for visiting Spodek Law Group, a second-generation criminal defense firm managed by Todd Spodek, with over 50 years of combined experience defending drug sting cases throughout New York. Entrapment is one of the hardest defenses to win. You must prove the government induced you to commit a crime you weren’t predisposed to commit. Prosecutors counter by showing you went along with the scheme willingly – and courts often find that willingness itself proves predisposition. Federal agents use reverse stings, confidential informants, and months of investigation to build cases they claim don’t involve entrapment.

What Is Entrapment Under New York Law?

New York Penal Law § 40.05 defines entrapment as an affirmative defense. It applies when a public servant seeking evidence of a crime induces or encourages someone to commit an offense using methods creating a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.

Break that down: The government must actively induce or encourage you. Merely providing an opportunity doesn’t count. The methods used must be so aggressive that they’d cause a normal, law-abiding person to commit the crime. And you must show you weren’t predisposed to commit this type of offense before the government got involved.

The Two Elements You Must Prove

Element	What You Must Prove	What Defeats It
Government Inducement	Active persuasion, pressure, or encouragement beyond mere opportunity	Evidence showing agent simply offered opportunity without pressure
Lack of Predisposition	No readiness or willingness to commit this crime before government contact	Prior similar conduct, quick agreement, past convictions, admissions

You need both elements. Once you raise entrapment, prosecutors must disprove it beyond reasonable doubt. But raising it means admitting you committed the crime – you’re just arguing the government made you do it.

New York’s Objective Test vs. Federal Subjective Test

This matters because different standards apply depending on where you’re prosecuted.

New York’s Objective Standard

New York is one of 14 states using an objective test. The question: Would a normally law-abiding person have committed this crime given the government’s tactics? The focus is on what the government did, not your particular background. Did police tactics create a substantial risk that someone without criminal inclinations would commit the offense?

Federal Subjective Standard

Federal courts use a subjective test focusing on YOUR predisposition. Did you have a pre-existing willingness to commit this type of crime before the government contacted you? The government’s tactics matter less. Even aggressive persuasion doesn’t establish entrapment if you were predisposed. Prosecutors prove predisposition through prior convictions, quick agreement to participate, eagerness about the scheme, past drug dealing, admissions, financial motivation, criminal associates.

Jacobson v. United States

The Supreme Court decided Jacobson v. United States in 1992. Postal inspectors repeatedly sent a man mailings for 26 months trying to get him to order child exploitation material. The Court reversed his conviction, holding that “law enforcement officers may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime.” But Jacobson is an outlier. Few defendants win entrapment claims, especially in drug cases.

Why Entrapment Defenses Usually Fail in Drug Cases

Courts don’t like entrapment defenses. They view them skeptically. Judges and juries tend to side with law enforcement – the defendant still committed the crime, regardless of who initiated it.

Predisposition Is Nearly Impossible to Disprove

Prosecutors establish predisposition through circumstantial evidence. You sold drugs in the past? Predisposed. You quickly agreed when the CI proposed a deal? Predisposed. You asked for payment? Predisposed. Courts have found predisposition based on agreeing to sell drugs within minutes of being asked, having cash and drugs available when approached, discussing drug quality or pricing, having past drug arrests even if charges were dismissed. One circuit held that promptly accepting an undercover agent’s offer itself establishes predisposition.

The Opportunity vs. Inducement Problem

Police providing an opportunity to commit a crime doesn’t constitute entrapment. Only active inducement counts. Undercover officer asks “Can you get me cocaine?” Defendant says yes and completes the sale. That’s opportunity, not inducement. Confidential informant begs for weeks, exploits a friendship, offers double the market rate, threatens suicide, contacts you 20 times despite refusals. That might be inducement. But even aggressive persuasion fails to establish entrapment if prosecutors prove any predisposition.

Reverse Sting Operations and Outrageous Government Conduct

Reverse stings flip traditional undercover operations. Instead of agents posing as drug buyers, they pose as sellers. Agents use previously seized drugs, advertise their availability to targets, arrange sales, then arrest buyers after completing transactions.

How Reverse Stings Work

DEA or FBI agents identify a target through confidential informants. Agents contact the target offering to sell large quantities at below-market prices. The target arrives with cash. Agents hand over the drugs, take the money, arrest the buyer. Sentencing depends on the quantity – which the government controls. Agents decide whether to offer a kilogram or ten kilograms. The target’s sentence depends entirely on what amount the government offered.

The Racial Disparity Problem

A Washington Post investigation found that over 10 years, 179 arrests in DEA reverse stings in New York included zero white defendants. All targets were Black or Hispanic. Defense attorneys argue that selection criteria disproportionately focus on minority communities, raising equal protection concerns.

Outrageous Government Conduct Defense

When government tactics become too extreme, defendants raise the outrageous government conduct defense – arguing that due process prohibits prosecuting crimes the government essentially created. This defense is even harder to win than entrapment.

California federal judge Otis D. Wright II dismissed an indictment in a reverse sting case, writing: “The time has come to remind the Executive Branch that the Constitution charges it with law enforcement – not crime creation.” Judge Wright found that agents invented a fictional stash house, lured defendants with promises of easy money, provided all the planning, and then arrested them.

But that’s rare. Most courts reject outrageous conduct claims, holding that even aggressive tactics remain lawful investigative techniques.

The Role of Confidential Informants

Confidential informants drive most drug sting operations. They introduce targets to undercover agents, make initial contact, maintain communication, encourage participation.

How CIs Get Recruited

Police arrest someone on drug charges and offer a deal – work off your case by setting up others. The arrested person becomes a confidential informant, receiving payment for each successful introduction. DOJ guidelines require agencies to evaluate CIs and document their activity. But those safeguards often fail. One CI in New York received over $800,000 in compensation.

CIs Create Entrapment – Then Prosecutors Use Them to Defeat It

CIs exploit personal relationships. They beg friends, family members, or acquaintances to participate in drug deals. They pressure, plead, manipulate. That pressure is exactly the kind of inducement that should support entrapment claims. But prosecutors flip it. They argue that if you had a prior relationship with the CI, that proves you were predisposed. Your willingness to help a friend shows you were ready to commit the crime. Circular logic, but courts allow it.

When Entrapment Defenses Can Work

**Extreme, Repeated Pressure Over Extended Time**

Months of begging, dozens of refusals before you eventually cave, threats, exploitation of vulnerabilities. You need documentation – text messages, recordings, witnesses showing how many times you said no before finally agreeing.

**No Criminal History**

Clean record strengthens lack of predisposition. Prior drug convictions doom entrapment defenses. Character witnesses testifying you’ve never used or sold drugs help.

**Government Created the Entire Scheme**

You didn’t seek out the opportunity. Agents came to you. They supplied everything – drugs, transportation, buyers. You had no independent criminal infrastructure.

**Reluctance and Hesitation**

Evidence showing you resisted, expressed doubt, tried to back out. Communications where you said “I don’t think this is a good idea” or “I’m not comfortable with this.” Anything showing you weren’t eager.

What Spodek Law Group Does in Sting Cases

Investigate CI Backgrounds

Confidential informants have credibility problems. Criminal histories, pending charges, deals with prosecutors, payments received, lies in other cases. Discovery demands must include full CI disclosure – real names, criminal records, cooperation agreements, compensation amounts. Cross-examination destroys CIs who’ve lied before or who have massive financial incentives.

Document All Government Contact

Every communication matters for entrapment. Text messages, phone records, emails, recorded calls. How many times did they contact you? How many times did you refuse? What language did they use? Timeline matters – the longer the pressure campaign, the stronger the entrapment claim.

Challenge Predisposition Evidence

Prosecutors will introduce anything suggesting you were predisposed – prior arrests, associations, hearsay statements. Motions in limine can exclude unreliable evidence. Character witnesses can testify you weren’t involved in drugs. Expert testimony can explain how financial desperation or addiction made you vulnerable to manipulation without proving predisposition.

Selective Prosecution Claims

If reverse sting targets show racial disparities, equal protection claims can be raised. Statistical evidence showing systematic targeting of minorities combined with similarly situated white individuals who weren’t targeted can support selective prosecution motions.

At Spodek Law Group, we understand entrapment is an uphill battle. But when government tactics cross the line, we hold them accountable. You can reach us 24/7 at our offices throughout NYC and Long Island. When your freedom depends on proving the government created the crime, your defense matters.