People v Velasquez

People v Velasquez 2010 NY Slip Op 07469 [77 AD3d 503] October 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

The People of the State of New York, Respondent,
v
Francisco Velasquez, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Allen Fallek of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered February 26, 2008, convicting defendant, after a nonjury trial, of attempted rape in the first degree, attempted criminal sexual act in the second degree, attempted disseminating indecent material to minors in the first degree (two counts) and attempted endangering the welfare of a child, and sentencing him to an aggregate term of five years, unanimously affirmed.

Defendant did not preserve his argument that he established the affirmative defense of entrapment as a matter of law, and we decline to review it in the interest of justice. As an alternative holding, we also reject it on the merits. Furthermore, in the exercise of our factual review power, we find that the court's verdict rejecting that defense was not against the weight of the evidence. The police actions, both on the Internet and at the scene of the crime, merely provided defendant with the opportunity to commit sexual crimes against a person he believed to be a 12-year-old girl (see People v Brown, 82 NY2d 869, 871-872 [1993]), and none of these actions can be viewed as "active inducement or encouragement" (Penal Law § 40.05). Moreover, there was significant evidence of defendant's predisposition to commit the crimes charged. Concur—Gonzalez, P.J., Andrias, Nardelli, McGuire and Abdus-Salaam, JJ.