VII. ENTRAPMENT
A. Statutory Entrapment
There were two forms of entrapment under common
law. Subjective entrapment existed when police planted
a criminal plan in the mind of an innocent person who
otherwise would not have committed the crime, in order
to institute a criminal prosecution against the person.
Subjective entrapment takes into consideration the
predisposition of the defendant to commit the crime.
Subjective entrapment protects the unwary innocent but
not the unwary criminal. State v. Johnson, 127 N.J. 458,
464 (1992); State v. Rockholt, 96 N.J. 570, 576 (1984).
Objective entrapment existed when police conduct
caused an average law-abiding citizen to commit a crime
or when police conduct was so egregious as to impugn the
integrity of the court that permitted the conviction.
Although the predisposition of the defendant to commit
the crime was not totally irrelevant, the focus of objective
entrapment was the wrongfulness of police conduct. State
v. Johnson, 127 N.J. 458, 464 (1992); State v. Molnar, 81
N.J. 475, 484 (1986); State v. Talbot, 71 N.J. 160, 168
(1976).
The Code encompasses the subjective and objective
elements of common-law entrapment. The Code
requires an analysis of the interrelation between
defendant’s predisposition and the police conduct and a
determination of which caused the commission of the
crime. To constitute entrapment, police conduct must
involve 1) “methods of persuasion or inducement” that 2)
create “a substantial risk” of the commission of a crime 3)
by a person not otherwise “ready to commit” the crime.
N.J.S.A. 2C:2-12a(2). The formulation of the defense
focuses on the “ability of the average person, rather than
the particular defendant, to withstand the inducements
to engage in criminal activity.” The defendant’s conduct
must be a “direct result” of the police action. N.J.S.A.
2C:2-12a. Thus, a defendant predisposed to commit the
crime would probably be unable to satisfy the
requirement that the illegal conduct was the “direct
result” of the police action. State v. Rockholt, 96 N.J. 570,
577-79 (1984).
A defendant’s prior convictions may be admissible to
prove predisposition to rebut a claim of entrapment when
the prior convictions are for crimes “similar” to the crime
for which the defendant is being prosecuted. To
determine if the prior crimes are similar, the court should
first identify those factors or elements that are necessary
predicates of the respective crimes. It should then
determine how many factors essential to each crime are
shared and whether they are shared to such an extent that
the conclusion that the crimes are similar is justified in
light of all the surrounding circumstances. In
conducting this analysis, the court should consider
factors such as the object of the crimes, the methods used
to perpetrate the crimes, and the particular mental state
required. State v. Gibbons, 105 N.J. 67 (1987).
Applying this analysis, the Court determined that the
defendant’s prior convictions for burglary and larceny
were not sufficiently similar to narcotics distribution to
permit their admission to show propensity to rebut the
entrapment defense. The Court, however, acknowledged
that if the State were able to establish a factual nexus
between the crimes, that is, to show that the prior offenses
were drug-related, then they might be admissible. Ibid.Motor vehicle violations are not offenses under the
Criminal Code so that Code defenses, such as
entrapment, are not available. State v. Fogarty, 128 N.J.
59, 64 (1992).It is reasonable to require law enforcement officers to
have some reasonable suspicion that a person is
predisposed to commit a crime before offering that
person some inducement to participate in a criminal
undertaking. That does not preclude a law enforcement
officer from approaching a citizen to determine whether
such criminal inclination exists without first having a
reasonable suspicion of the citizen’s criminal predisposi-
tion. In this case, there was no evidence that the law
enforcement officer offered the defendant inducement to
commit a crime before she expressed an interest in drug
activity. State v. Riccardi, 284 N.J. Super. 459, 468 (App.
Div. 1995).The statutory provision making the defense of
entrapment unavailable when causing or threatening
bodily injury is an element of the offense charged does not
preclude assertion of the defense in a prosecution for
conspiracy to commit a second degree aggravated assault.
Since actually “causing or threatening bodily injury” is
not an element of the conspiracy charge, defendant could
raise the defense. State v. Soltys, 270 N.J. Super. 182 (App.
Div. 1994).The defendant was not entitled to a charge on
statutory entrapment as a defense to robbery and other
charges where police conduct consisted only of an officer
acting as a robbery decoy, sitting on a brick wall with a
few dollar bills tucked in his shirt pocket. The decoy
operation did not create the requisite “substantial risk” of
the commission of a crime which is necessary to satisfy the