objective element of the entrapment test. State v. Long,
216 N.J. Super. 269 (App. Div. 1987).
The affidavit which was part of a PTI application and
required information regarding prior arrests and charges
was misleading and “entrapping” since, if correct or
inadequate information was provided, it formed a basis to
reject the application or to charge the affiant with false
swearing. State v. Wood, 211 N.J. Super. 110 (Law Div.
1986).
B. Due Process Entrapment
Due process entrapment exists when “the conduct of
government is patently wrongful in that it constitutes an
abuse of lawful power, perverts the proper role of
government, and offends principles of fundamental
fairness.” Due process entrapment “centers around two
major concerns: the justification for the police in
targeting and investigating the defendant as a criminal
suspect; and the nature and extent of the government’s
actual involvement in bringing about the crime.”
Traditional objective entrapment may apply to a
defendant predisposed to commit the crime as due
process entrapment, thus the principles of objective
entrapment are relevant to an inquiry into due process
entrapment. State v. Johnson, 127 N.J. 458, 473-75
(1992).
A so-called “full-circle” transaction is not per se due
process entrapment. State v. Johnson, 127 N.J. 458, 481-
82 (1992).
Government conduct of soliciting the police officer
defendant and his girlfriend into a crime involving the
theft and sale of illegal drugs was not due process
entrapment. It was the defendant who first expressed a
desire to “rip-off” a drug dealer; the crime was not
primarily police-inspired; the police did not resort to
excessive inducements; and the use of a full-circle
transaction in which the police arranged both the supply
and sale of the drugs was reasonable. In this case, the
defendant had conceded predisposition to commit the
crime. State v. Johnson, 127 N.J. 458 (1992).
There was no due process entrapment where a police
informant and an individual in a foreign country agreed
to import heroin, and defendant brought the heroin into
the country and accepted a portion of the cost of the
heroin from the informant as his fee.
The State was not primarily “responsible for creating
and planning the crime,” the individual outside of the
country at all times controlled whether and how to
transact business, and there is nothing to suggest that any
party to the transaction was coerced, threatened, or
intimidated into committing any crime. State v.
Abdelnoor, 273 N.J. Super. 321 (App. Div. 1994).C. Generally
Entrapment may be a defense only when the
individual who solicits commission of the crime is a law
enforcement official or someone acting as an agent of, or
cooperating with, a law enforcement official. When the
solicitor is a private party, entrapment is not available as
a defense. State v. Rockholt, 69 N.J. 570, 582 (1984).No form of entrapment defense was available to a
defendant charged with DWI who alleged that he drove
only when a police officer, who was attempting to control
the crowd which had gathered around a fight in a parking
lot, ordered him to leave and escorted him to his vehicle.
The police did not engage in any sort of impermissible
conduct; the officer did not know that the defendant was
intoxicated; and the officer was legitimately exercising his
law enforcement authority in attempting to control an
escalating situation. The defendant should have
informed the police that he was intoxicated and sought an
alternative to violating the law. His subjective belief that
he had no alternative was irrelevant. The Court also
rejected a “quasi-entrapment” defense, which was
derived from the objective-entrapment defense. State v.
Fogarty, 128 N.J. 59 (1992).D. Procedural Issues and Burden of Proof
Defendant must prove both the objective and
subjective aspects of statutory entrapment by a
preponderance
of the evidence. N.J.S.A. 2C:2-12b; State v. Rockholt, 96
N.J. 570, 577, 581 (1984). The existence of statutory
entrapment is determined by the trier of fact. Id. at 577.Regarding due process entrapment, the defendant
has the burden of coming forth with evidence to support
the defense, which the State must then disprove by clear
and convincing evidence. The existence of due process
entrapment is a question of law to be resolved by the
court. State v. Florez, 134 N.J. 570, 584, 590-91 (1994).A defendant’s denial of the commission of a crime
does not preclude assertion of an entrapment defense.
Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 90