| People v Velasquez |
| 2010 NY Slip Op 07469 [77 AD3d 503] |
| October 21, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v FranciscoVelasquez, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), forrespondent.
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, attemptedcriminal sexual act in the second degree, attempted disseminating indecent material to minors in the firstdegree (two counts) and attempted endangering the welfare of a child, and sentencing him to anaggregate term of five years, unanimously affirmed.
Defendant did not preserve his argument that he established the affirmative defense of entrapmentas a matter of law, and we decline to review it in the interest of justice. As an alternative holding, wealso reject it on the merits. Furthermore, in the exercise of our factual review power, we find that thecourt'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 tocommit sexual crimes against a person he believed to be a 12-year-old girl (see People vBrown, 82 NY2d 869, 871-872 [1993]), and none of these actions can be viewed as "activeinducement or encouragement" (Penal Law § 40.05). Moreover, there was significant evidenceof defendant's predisposition to commit the crimes charged. Concur—Gonzalez, P.J., Andrias,Nardelli, McGuire and Abdus-Salaam, JJ.