(App. Div. 1980), certif. denied, 87 N.J. 316 (1981);
State v. Washington, 165 N.J. Super. 149 (App. Div.
1979).
In the Matter of DeMarco, 224 N.J. Super. 105 (App.
Div. 1988). Contemnor, an attorney, was not denied
due process by the court’s denial of his request to obtain
more complete copies of transcripts of the underlying
action in the summary contempt proceeding since
contemnor and the judge were aware of the material facts
and there was no reason offered why the limited portions
of transcripts that might have been necessary could not
have already been obtained.
In State v. Cusik, 219 N.J. Super. 452 (App. Div.
1987), defendant’s due process rights were not infringed
by the court’s refusal to grant defendant access to
Division of Youth and Family Services files regarding the
eight-year-old victim of sexual assault where the court
examined the files in camera and concluded that not only
was the information available elsewhere but it was not
determinative of any issue before the court.
State v. Nicastaro, 218 N.J. Super. 231 (Law Div.
1987). Where the police failed to have rules and
regulations in place to provide a defendant who had
submitted to a breathalyzer test with an opportunity to
procure a timely and independent sample of his blood as
he was statutorily entitled to do, evidence of the
breathalyzer test results were suppressed because
defendant was denied the only opportunity he had to
defend against the charge.
D. Entrapment
N.J.S.A. 2C:2-12a(2) provides:A public law enforcement official or a person engaged in
cooperation with such an official or one acting as an agent
of a public law enforcement official perpetrates an
entrapment if for the purpose of obtaining evidence of the
commission of an offense, he induces or encourages and,
as a direct result, causes another person to engage in
conduct constituting such offense by...(2) Employing
methods of persuasion or inducement which create a
substantial risk that such an offense will be committed by
persons other than those who are ready to commit it.
State v. Florez, 134 N.J. 570 (1994), held that the
entrapment defense can be based on a statute, N.J.S.A.
2C:2-12, or on standards of due process. The statutory
entrapment defense is an issue that the jury must
determine. The burden of proof is on the defendants.
Due process entrapment, on the other hand, is a legal
determination which must be made by the trial court,
not the jury. After a defendant has presented evidence
supporting a due process entrapment defense, the State
must then disprove this defense by “clear-and-
convincing” evidence. The trial court should rely on the
evidence adduced at trial and any additional hearings
which might be necessary to decide the due process issue.State v. Johnson, 127 N.J. 458 (1992) explained that
due process entrapment concentrates on the “egregious
or blatant wrongfulness” of the government’s conduct.
In New Jersey, the standards applicable to an entrapment
defense will be based upon state, not federal
constitutional law. The relevant factors to be considered
are: (1) whether the government or the defendant was
primarily responsible for creating and planning the
crime, (2) whether the government or the defendant
primarily controlled and directed the commission of the
crime, (3) whether objectively viewed the methods used
by the government to involve the defendant in the
commission of the crime were unreasonable, and (4)
whether the government had a legitimate law
enforcement purpose in bringing about the crime. Here,
the government’s conduct of soliciting a police officer and
his girlfriend into a crime involving theft and the sale of
illegal drugs did not constitute due process entrapment
because the original idea for the crime came from
defendant without any involvement by the State.In State v. Grubb, 319 N.J. Super. 407 (App. Div.),
certif. denied, 161 N.J. 333 (1999), the trial court
erroneously required defendant to prove due process
entrapment as an affirmative defense, rather than
properly requiring the prosecution to disprove
entrapment by clear and convincing evidence. The
court’s misallocation of the burden of proof constituted
plain error. Evaluation of the Johnson factors for
establishing due process entrapment centers around two
major recurrent concerns, 1) justification for police in
targeting and investigating defendant as criminal
suspect, and 2) nature and extent of government’s actual
involvement in bringing about the crime. Defendant, a
police officer, was entrapped where police targeted
defendant based on the mistaken belief of a steroid drug’s
illegal status, defendant lacked prior record, informant
failed or lacked ability to provide police with specific
information concerning previous allegedly illegal
transactions with defendant, conversation on sole tape
recording between informant and defendant was
equivocal and defendant drove away from meeting
without purchasing steroids.