Summary
holding that it was error to preclude as hearsay defendant's testimony with respect to the statements made to him by paid police informer who introduced him to undercover officer; "the statements were admissible to show inducement and defendant's state of mind, which was relevant to his contention that he 'engaged in the proscribed conduct because he was induced or encouraged to do so by . . . a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution'"
Summary of this case from Roman v. McCoyOpinion
Argued January 13, 1987
Decided February 12, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, William H. Intemann, Jr., J.
David B. Weisfuse and Stephen J. Pittari for appellant.
Carl A. Vergari, District Attorney (Richard E. Weill and Anthony J. Servino of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
The defendant was indicted for selling drugs to an undercover police officer. At the trial he raised an entrapment defense which he sought to prove by testifying with respect to the statements made to him by the paid police informer who introduced him to the undercover officer. In each instance, however, the court sustained the prosecutor's objection on the ground of hearsay and directed the jury to disregard any testimony concerning the informant's statements.
As defense counsel noted at trial, the statements were admissible to show inducement and defendant's state of mind, which was relevant to his contention that he "engaged in the proscribed conduct because he was induced or encouraged to do so by * * * a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution" (Penal Law § 40.05). The prosecutor's contention that the defendant did not preserve this issue for review is without merit. All of the arguments which the defendant now makes on the appeal relevant to this point were presented to the court at the time he sought to have the evidence introduced.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order reversed, etc.