author: Titone, J. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Richard W. Flayhart and Beatrice M. Flayhart, Appellants.
    Argued November 17, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      E. Andrew Walton and David R. Garner for Richard W. Flayhart, appellant.
    I. The court deprived defendant of a fair trial by instructing the jury that defendant could be found guilty based on accessorial liability when charged with criminally negligent homicide. (People v Robbins, 83 AD2d 271.) II. The court’s failure to instruct the jury on the element of causation was reversible error given expert testimony that there was an intervening cause of death. (People v Stewart, 40 NY2d 692; People v Padgett, 60 NY2d 142.) III. Evidence of a trust fund passing to defendant should not have been permitted to show motive when defendant was charged with "negligently” causing the death of another. (People v Montanez, 41 NY2d 53; People v Falu, 37 AD2d 1025.) IV. The court’s ruling prohibiting defendant from allowing the jury to view photos of the deceased during the examination of expert witnesses deprived defendant of a fair trial. (People v Pobliner, 32 NY2d 356.) V. The evidence was insufficient to establish defendant’s guilt beyond a reasonable doubt when even the prosecution’s medical experts did not know the cause of the deceased’s deadly aspiration pneumonia. (People v Montanez, 41 NY2d 53.)

      Thomas J. Snider for Beatrice Flayhart, appellant.
    I. It is not logically possible for an individual to be prosecuted on an "acting in concert” theory of criminal liability for a criminally negligent homicide charge. II. It is not legally possible for an individual to be prosecuted on an "acting in concert” theory of criminal liability for a criminally negligent homicide charge. (People v Gramaglia, 71 AD2d 441; People v Lieberman, 3 NY2d 649; People v Abbott, 84 AD2d 11; People v Robbins, 83 AD2d 271.) III. Even if it is determined to be logically and legally possible to sustain a criminally negligent homicide charge on an acting in concert theory, the charge should be dismissed because the jury instructions were improper where the court indicated that it would charge the jury that separate findings must be made and then failed to do so.

      Charles A. Gardner, District Attorney (Jane M. Getman of counsel), for respondent.
    In People v Flayhart (Richard): I. Accessory liability may attach when one is charged with criminally negligent homicide. (People v Gramaglia, 71 AD2d 441; People v Abbott, 84 AD2d 11; People v Torres, 111 AD2d 969, 66 NY2d 768; People v Henson, 33 NY2d 63.) II. The Judge’s charge to the jury concerning causation was adequate.
      (People v Kibbe, 35 NY2d 407; People v Stewart, 40 NY2d 692.) III. Evidence of the trust fund was proper where defendant was charged with manslaughter as well as criminally negligent homicide. (People v Stanfield, 36 NY2d 467; People v Montanez, 41 NY2d 53; People v Walker, 58 AD2d 737.) IV. The procedure employed by the trial court in publishing the photographic evidence to the jury was a proper exercise of the court’s discretion. (People v Pobliner, 32 NY2d 356; People v McNeeley, 77 AD2d 205.) V. The evidence was sufficient to support the verdict. (People v Bleakley, 69 NY2d 490; People v Kibbe, 35 NY2d 407.) In People v Flayhart (Beatrice): I. It is logically possible for a person to be prosecuted on an "acting in concert” theory for criminally negligent homicide. II. It is legally possible to be prosecuted on an "acting in concert” theory of criminal liability for criminally negligent homicide. (People v Gramaglia, 71 AD2d 441; People v Abbott, 84 AD2d 11; People v Torres, 111 AD2d 939; People v Robbins, 83 AD2d 271.) III. The charge to the jury was proper. IV. Defendant’s other claims of error do not require reversal. (People v Arca, 72 AD2d 205.)
   OPINION OF THE COURT

Titone, J.

Defendants Richard and Beatrice Flayhart, who are husband and wife, were charged with reckless manslaughter and criminally negligent homicide on the theory that, acting together and with the requisite culpable mental states, they engaged in conduct that brought about the death of Richard’s brother, Terry Flayhart. Terry, who lived with defendants during the last period of his life, was mentally retarded and afflicted with a number of ailments, including cerebral palsy and epilepsy. The People’s case against defendants was based on the premise that Terry, who weighed approximately 75 pounds just before his death, had died of neglect while he was living in defendants’ home and was totally dependent upon their care.

The medical evidence introduced at defendants’ trial showed that Terry had died of malnutrition and inflammation of the lungs, with pneumonia as a complicating factor. There was also evidence that the lung inflammation was the result of Terry’s having aspirated food from his stomach which had been ingested some six hours earlier. The other evidence against defendants consisted primarily of their own statements to Sheriffs deputies regarding their care of Terry, some background information relating to Terry’s history, proof of a $122,000 trust fund that had been established to pay for Terry’s care and proof that Terry had not seen his regular doctor during the last two years of his life.

At the close of the evidence, the trial court submitted the charged counts to the jury, along with an instruction on accomplice liability under Penal Law § 20.00. The jury found defendants guilty of criminally negligent homicide, and each defendant was sentenced to a term of imprisonment. The judgments of conviction were affirmed by the Appellate Division. This appeal, taken by permission of a Judge of this court, ensued.

Defendants’ primary contention on their appeals to this court is that the convictions cannot be sustained because it is logically impossible to "aid and abet” criminally negligent homicide, an unintentional crime. Specifically, they contend that the crime of which they were convicted is nonexistent because one cannot "intentionally aid” another to "fail to perceive a substantial and unjustifiable risk” of death, the requisite mental state for criminally negligent homicide (see, Penal Law § 15.05 [4]; § 20.00).

However, Penal Law § 20.00 imposes accessorial liability on an accomplice not for aiding or encouraging another to reach a particular mental state, but rather for intentionally aiding another to engage in conduct which constitutes the charged offense while himself "acting with the mental culpability required for the commission” of that offense. Thus, defendants were convicted because the jury found that each of them, while "fail[ing] to perceive a substantial and unjustifiable risk” of death, intentionally aided the other to engage in certain conduct, such as failure to provide food and medical care, which ultimately brought about Terry Flayhart’s death (see, Penal Law § 125.10). There is no logical or conceptual difficulty with such convictions (see, People v Abbott, 84 AD2d 11; see also, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law art 125, at 491; cf., People v Campbell, 72 NY2d 602).

Defendants also make a number of claims relating to the fairness of their trial. Only two of these merit comment.

Defendant Richard Flayhart argues that the trial court committed reversible error when, over timely objection, it permitted the prosecutor to introduce evidence that he was in line to inherit the trust fund that had been established to pay for Terry’s care in the event that Terry died. The trust fund evidence was admitted on the theory that it constituted proof of a motive. Defendant contends that the admission of this evidence was improper because it was irrelevant to any material issue in this case involving unintentional crimes.

Contrary to defendant’s contention, however, the trust fund evidence was not wholly irrelevant. In addition to the criminally negligent homicide count on which he was ultimately convicted, defendant was charged with reckless manslaughter (Penal Law § 125.15 [1]), which includes as an element awareness of and conscious disregard for a substantial and unjustifiable risk of death (Penal Law § 15.05 [3]). Although this element is not the same as an "intentional” mental state within the technical meaning of Penal Law § 15.05 (1) (having a "conscious objective * * * to cause [a] result or to engage in [prohibited] conduct”), it does suggest some deliberate mental activity — i.e., conscious disregard for a known risk. In this respect, the term "unintentional” crime is something of a misnomer when applied to the crime of reckless manslaughter.

Because reckless manslaughter includes an element of deliberate conduct, the admission of evidence of a motive may be justified in a proper case. In this instance, for example, the jury could have considered the trust fund as some evidence of defendant Richard Flayhart’s incentive to disregard the obvious risk that his brother would die if his basic medical and nutritional needs were neglected. Thus, its admission in evidence was not erroneous.

Both defendants also argue that the trial court erred in the manner in which it handled certain photographs of Terry’s body that were made available during their trial. The court refused to permit the jury to examine the photographs during either the defense attorneys’ cross-examination of the People’s medical expert or their summations. However, the photographs were marked as exhibits and the jury was permitted to inspect them during its deliberations. Defendants now contend that they were prejudiced by the court’s rulings.

Although the court’s decisions in relation to the photographs were somewhat unusual, we cannot say that they constituted an abuse of the court’s discretionary power to manage the conduct of the courtroom proceedings and determine the manner in which the jury would be exposed to stark photographic evidence (see, People v Pobliner, 32 NY2d 356). The trial court refused defense counsels’ request to allow the jury to view the photographs during cross-examination and summations because it was concerned that the jury would be distracted by the graphic physical evidence and also because it feared that the jury would use the photographs as a basis for forming an opinion before all of the evidence was complete. We note that the court did not prevent counsel from referring to the photographs during summation or showing them to the People’s medical expert during cross-examination. Moreover, as the trial court observed, the jury was entitled to request a readback of the expert’s testimony if, after deliberating, it found itself confused about any references that might have been made to the photographs. Since no prejudice or error is evident, there is no basis to disturb the convictions or rulings below.

Defendants’ remaining contentions are either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Hancock, Jr., J.

(concurring). I concur in the result and the majority opinion except for one point. I cannot agree that the trust agreement was properly admitted into evidence. Proof that a defendant would profit by the death of the victim is, of course, relevant and, at times, persuasive circumstantial evidence that the defendant desired the victim’s death and had a motive for causing it. It is, therefore, relevant on the question of whether the defendant intentionally caused the victim’s death (see, People v Fitzgerald, 156 NY 253, 258). But evidence that the defendant desired the victim’s death and, therefore, intended to cause it, cannot be relevant where the defendant is not charged with acting intentionally, i.e., acting with a "conscious objective * * * to cause such result” (Penal Law § 15.05 [1]).

The defendants here are not charged with intentional conduct but with acting recklessly. As the term is used in the Penal Law a "person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (§ 15.05 [3]). A finding of recklessness requires two inquiries: (1) whether the person was, in fact, aware of a substantial and unjustifiable risk, a subjective element; and (2) whether such person’s conscious disregard of that risk constituted a gross deviation from a standard of reasonable care, an objective element. I believe that analysis shows that proof of the existence of the trust fund cannot be relevant to either component.

Obviously, proof that a defendant would profit from the victim’s death and, therefore, arguably desired it can have no bearing on the first element: whether defendant had knowledge or an awareness of a risk to the victim. Nor can such evidence of motive or desire be relevant on the question of whether a defendant’s conduct, in disregarding the risk, constituted a gross deviation from the ordinary standard of care. Reckless conduct differs from negligent conduct in the degree of deviation. If the deviation is gross, it is reckless or grossly negligent conduct. But, it is still negligent conduct — conduct based on an objective standard. It is not intentional conduct, and because it is not, proof of defendants’ intent, motive, or desire is irrelevant (see, People v Terry, 104 AD2d 572, 573; People v Falu, 37 AD2d 1025, 1026; see also, People v Campbell, 72 NY2d 602, 605-606).

Finally, contrary to the People’s argument the fact that defendants would have profited from the victim’s death cannot be admissible on the question of whether their disregard of the substantial risk was a conscious disregard. The word "conscious” as used in Penal Law § 15.05 (3), I submit, refers to the actor’s mental process of knowing, perceiving, or being aware of the risk (see, Webster’s Third New International Dictionary 482 [1986]). It does not, as the People contend, connote conduct that is in any sense intentional, deliberate, or willful. To read that meaning into the term produces a concept that is elusive, to say the least — intentionally or deliberately disregarding a risk of an unintended result of that disregard. It would also contradict the underlying theory of a reckless crime, i.e., a crime where the result is unintended and criminality depends on the extent of the deviation of the conduct from an objective reasonable standard. I cannot believe the Legislature had this in mind.

In sum, the admission of proof bearing on defendant’s intent in committing an unintentional crime was plain error. In view of the overwhelming evidence of guilt of the lesser crime of criminal negligence, however, I am persuaded that a reversal is not required (see, People v Crimmins, 36 NY2d 230, 241).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur with Judge Titone; Judge Hancock, Jr., concurs in a separate opinion.

Order affirmed.


source: Caselaw Access Project

author: Hancock, Jr., J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Otis Butts, Appellant.
    Argued November 18, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      Martha Krisel and Philip L. Weinstein for appellant.
    The court’s refusal to charge the affirmative defense of entrapment, solely because it viewed the defense as inconsistent with appellant’s denial of the sales, was contrary to New York law and deprived appellant of his due process right to present a defense and to a fair trial. (People v Farnsworth, 65 NY2d 734; People v Padgett, 60 NY2d 142; People v Steele, 26 NY2d 526; Mathews v United States, 485 US —, 108 S Ct 883; People v Huntley, 87 AD2d 488, 59 NY2d 868; People v Lee, 35 NY2d 826; People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427; People v Asan, 22 NY2d 526; People v Felder, 39 AD2d 373, 32 NY2d 747.)

      Robert M. Morgenthau, District Attorney (Paul Schectman and Mark Dwyer of counsel), for respondent.
    The evidence did not reasonably support defendant’s request for an entrapment instruction as to the sales he denied making. (People v McGee, 49 NY2d 48, cert denied sub nom. Waters v New York, 446 US 942; Sorells v United States, 287 US 435; People v McCleese, 71 NY2d 839; People v Seale, 47 NY2d 923; People v Mapp, 47 NY2d 939; People v Thompson, 47 NY2d 940; People v Henderson, 41 NY2d 233; People v Steele, 26 NY2d 526; People v Scarborough, 49 NY2d 364; People v Blim, 63 NY2d 718.)
   OPINION OF THE COURT

Hancock, Jr., J.

The dispositive question in this appeal is whether the evidence at trial reasonably supported defendant’s request for a jury charge on the affirmative defense of entrapment. The defendant was convicted, after a jury verdict, of making four separate sales of cocaine. The Trial Judge denied defendant’s request for an entrapment charge on the first three sales and granted it as to the last. The Appellate Division, relying on decisions of various Federal Courts of Appeals (see, e.g., United States v Dorta, 783 F2d 1179; United States v Rey, 706 F2d 145; United States v Mayo, 705 F2d 62; Sylvia v United States, 312 F2d 145), affirmed on the ground that defendant’s testimonial denial that he made the first three sales precluded him from pleading the inconsistent entrapment defense as to them. While we reject the rule applied by the court below, we nevertheless affirm for the reasons which follow.

The People presented testimony showing that defendant, a security guard at a public junior high school in Manhattan, made a total of four sales of cocaine to two different undercover officers — each posing as an employee of the Board of Education — during a three-day period in May 1985. Testifying in his own defense, defendant admitted the fourth sale but flatly denied the first three. He claimed that Detective Donawa had asked him to obtain cocaine on five or six separate occasions, that he refused the detective’s request each time but the last, and that he obliged the detective on that occasion but solely as a favor to a friend. Defendant also testified that Officer Lewis, the other undercover officer, had approached him on several occasions but that he denied her request each time.

On this appeal, defendant contends that the trial court’s refusal to give a jury charge on entrapment as to the first three sales was error because, first, a defendant’s denial that he committed a crime does not, without more, preclude a charge on the affirmative defense of entrapment and, second, the evidence presented at the trial was sufficient to support such a charge. We agree with defendant’s first contention only.

It is established New York case law that a defendant’s entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant’s outright denial that he was involved in the crime (see, People v Padgett, 60 NY2d 142, 146; People v Steele, 26 NY2d 526, 529; cf., People v Asan, 22 NY2d 526, 532; People v Moran, 246 NY 100, 103). We perceive no reason why this general rule should not also apply to the affirmative defense of entrapment (see, People v Felder, 32 NY2d 747, affg 39 AD2d 373, 378; Mathews v United States, 485 US —, 108 S Ct 883, 885, 886; People v Demma, 523 F2d 981; cf., People v Perry, 61 NY2d 849; People v Lee, 35 NY2d 826). Thus, we reject the rationale of the Appellate Division that defendant’s testimony that he did not make the first three sales "eliminate^] any justification for an entrapment charge” (131 AD2d, at 250).

We note, moreover, that the rule of the Federal courts, adopted by the court below, categorically precluding an entrapment charge when the defendant denies the crime (see, e.g., United States v Dorta, supra; United States v Rey, supra; United States v Mayo, supra; Sylvia v United States, supra), has recently been rejected by the Supreme Court in Mathews v United States (supra). In Mathews, an employee of the Small Business Administration was charged with unlawfully accepting a gratuity when he borrowed money from a participant in the SBA program. The employee admitted receiving the money but denied any criminal intent, claiming that it was a personal loan from a friend and was unrelated to his SBA duties. He was convicted after the trial court refused to charge the affirmative defense of entrapment. The Supreme Court, however, reversed. The court held that "even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury” could find in his favor (485 US, at —, 108 S Ct, at 886, supra). That standard, apparently based upon Federal common law (see, Stevenson v United States, 162 US 313 [Peckham, J.]), is the same as that which has been consistently applied by this court.

When determining whether to give a charge on a claimed defense, the trial court must view the evidence in the light most favorable to the defendant. Upon defendant’s request, the court must instruct the jury on the defense if it is sufficiently supported by the evidence; failure to do so may constitute reversible error (see, People v Watts, 57 NY2d 299, 301; People v Steele, supra, at 529). Also, it is basic that a "jury may accept portions of the defense and prosecution evidence or either of them” (People v Asan, supra, at 530; see also, People v Henderson, 41 NY2d 233, 236). Therefore, inconsistency in claimed defenses or even between a defendant’s testimony and a defense "should not deprive defendant of the requested charge” if the charge would otherwise be warranted by the evidence (People v Padgett, supra, at 146; see also, People v Perry, supra, at 851; People v Steele, supra, at 529).

Hence, in People v Steele (supra), we held that the defendant, charged with assault, was entitled to an instruction on defense of a third person, despite his testimony that he was not even at the scene of the crime (see also, People v Padgett, supra; People v Huntley, 59 NY2d 868; People v Felder, supra). Similarly, in People v Perry (supra), we held that the defendant was entitled to a charge on intoxication, even though his claim of inebriation, negating the requisite criminal intent, was entirely inconsistent with his testimonial denial of the criminal conduct and his insistence that he was fully aware of his actions (accord, People v Lee, supra).

The critical question in those cases, as in the present one, was not whether the claimed defense was consistent with the defendant’s testimony or with other defenses raised, but whether that defense, viewed separately, was supported by the trial evidence. The rule is that the jury must be instructed on all claimed defenses which are supported by a reasonable view of the evidence — not by any view of the evidence, however artificial or irrational (see, People v Watts, 57 NY2d 299, 301, supra). It is on the application of this basic rule that there must be an affirmance here.

Because the record does not contain a sufficient basis for an entrapment charge on the first three sales, the trial court’s refusal to charge was proper. Penal Law § 40.05 requires a showing both that the proscribed conduct was "induced or encouraged” by official activity and that the defendant had no predisposition to engage in such conduct (see, People v DeGina, 72 NY2d 768, 774-775 [decided today]). Under no reasonable view of the record could the jury find that both requirements were satisfied.

Obviously, defendant’s testimonial denial that the first three sales took place could not support a finding that he was "induced or encouraged” to make them. Furthermore, his testimony contained no reference at all to the three sales, much less an indication of how he was entrapped into making any particular one. Likewise, the testimony of the undercover police officers did not furnish the required proof that defendant had to be persuaded to sell the drugs or that he was not predisposed to do so. Their testimony not only failed to support defendant’s claim that he had been a reluctant seller who finally yielded, but affirmatively showed the very opposite: that he was willing and even eager to make the sales from the substantial inventory of drugs in his locker.

Finally, even selecting from the combined testimony of defendant and the People’s witnesses the proof which best supports defendant’s position, there would still be no rational basis on this record for the entrapment charge. Arguably, the fact finder could use the testimony of the undercover agents to supply the fundamental omission in defendant’s proof — that the three sales which he denied did, in fact, occur. The balance of their testimony, however, would have to be discarded, because it negates any suggestion that they did anything to urge or induce defendant to sell. Arguably, also, defendant’s testimony concerning the agents’ activities — if those activities were somehow related to the three sales or any particular one of them — might be sufficient to satisfy the inducement requirement of the entrapment defense. No matter how the record is cut and spliced, however, it simply contains no proof of a causal connection between those activities and any of the three sales. Defendant’s testimony concerning a general pattern of inducing activities unrelated to particular sales is not enough. Thus, a jury would have to speculate to conclude that the transactions which defendant totally disavows resulted from any specific inducing activities by the undercover agents. Entitlement to a charge on a claimed defense cannot rest on such contrivance and conjecture.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed.

      . There is a fundamental distinction between an ordinary defense and an affirmative defense that should be taken into account in determining whether there was sufficient evidence at trial to raise the defense. Since the People have the burden of disproving an ordinary defense beyond a reasonable doubt, all that is required is evidence of the defense, which if credited, is sufficient to raise a reasonable doubt. In the case of the affirmative defense, however, this threshold requirement is more demanding since the burden is on the defendant to prove the defense by preponderance of the evidence.

      . Indeed, in light of Mathews, the People no longer argue that defendant’s denial of the first three sales constituted an absolute bar to his receiving the charge as to them. It is evident, however, that Mathews is not precisely in point. Unlike defendant in this case, the defendant in Mathews did not deny the entire transaction, but only that he entertained the requisite criminal intent.


author: Titone, J.

text:
    In the Matter of Medical Malpractice Insurance Association, Respondent, v Superintendent of Insurance of the State of New York, Appellant.
    Argued November 16, 1988;
    decided December 15, 1988

      POINTS OF COUNSEL

      Robert Abrams, Attorney-General (Richard G. Liskov, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellant.
    I. As the Legislature has restated and as the Referee found, Superintendent Corcoran acted with statutory authority to stabilize rates. (Bradford v County of Suffolk, 283 NY 503; Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818; Zappone v Home Ins. Co., 55 NY2d 131; Matter of Pell v Coveney, 37 NY2d 494; Williams v Williams, 23 NY2d 592; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444; Matter of Schwartz v Corcoran, 118 AD2d 355.) II. As the Referee also found, petitioner failed to meet its burden of proving the Superintendent acted illegally in promulgating the rates. (Matter of Procaccino v Stewart, 32 AD2d 486, 25 NY2d 301; Matter of Schwartz v Corcoran, 118 AD2d 355; Matter of Colton v Berman, 21 NY2d 322; California Auto. Assn. v Maloney, 341 US 105; Osborn v Ozlin, 310 US 53; Matter of Kaye v Whalen, 44 NY2d 754; Turnquist v Elliott, 706 F2d 809; Methodist Hosp. v State Ins. Fund, 102 AD2d 367, 64 NY2d 365, 474 US 801; Federal Hous. Admin. v The Darlinton, Inc., 358 US 84; Chicago & Alton R. R. v Tranbarger, 238 US 67.)

      T. Richard Kennedy, Larry P. Schiffer and Michael A. Knoerzer for respondent.
    I. The Legislature has unlawfully delegated to the Superintendent the power to compel MMIA to underwrite insurance of all physician applicants at a loss, thereby depriving MMIA of its due process rights. (Smyth v Ames, 169 US 466; Brooks-Scanlon Co. v Railroad Commn., 251 US 396; Municipal Gas Co. v Public Serv. Commn., 225 NY 89; St. Francis Hosp. Center v Heckler, 714 F2d 872, 465 US 1022; Newton v Consolidated Gas Co., 258 US 165; West Ohio Gas Co. v Commission [No. 2], 294 US 79; Alliance of Am. Insurers v Cuomo, 854 F2d 591; Medical Malpractice Joint Underwriting Assn. v Pfeiffer, 832 F2d 240; People ex rel. Lewis v Safeco Ins. Co., 98 Misc 2d 856.) II. The finding of the courts below that the Superintendent’s determination was without a rational basis in the record is dispositive of this proceeding and is unaffected by the amendments to section 40. (Friedman v State of New York, 67 NY2d 271; Matter of Adirondack Mountain Reserve v Board of Assessors, 64 NY2d 727; New York Tel. Co. v Public Serv. Commn., 29 NY2d 164; Municipal Gas Co. v Public Serv. Commn., 225 NY 89; Matter of Stewart v Citizens Cas. Co., 34 AD2d 525, 27 NY2d 685, 401 US 910; Alliance of Am. Insurers v Cuomo, 854 F2d 591.) III. The orders of the court below are not appealable as of right. (People ex rel. Long Acre Elec. Light & Power Co. v Public Serv. Commn., 199 NY 254; Matter of Begent v Noyes, 284 NY 229; Matter of Colonial Liq. Distribs. v O’Connell, 295 NY 129; Matter of North Am. Holding Corp. v Murdock, 6 AD2d 596, 6 NY2d 902; Friedman v State of New York, 67 NY2d 271; Matter of Adirondack Mountain Reserve v Board of Assessors, 64 NY2d 727.)
   OPINION OF THE COURT

Titone, J.

In response to the continuing upward spiral of medical malpractice liability insurance, the Legislature, in 1985 and again in 1986, passed substantive and procedural rules designed to restrain increases in medical and dental malpractice premiums (see, L 1985, ch 294; L 1986, ch 266). The underlying legislative concern was that increasing malpractice premiums threaten the public health by discouraging physicians from initiating or continuing the practice of medicine in New York. The legislative reforms have been challenged on many fronts (see, Medical Malpractice Ins. Assn. v Cuomo, 138 AD2d 177, lv granted 143 AD2d 548; Alliance of Am. Insurers v Cuomo, 854 F2d 591). This article 78 proceeding involves one discrete aspect of the Medical Malpractice Reform Act of 1986 (L 1986, ch 266).

Specifically, petitioner challenges the premium rates set by the respondent, Superintendent of Insurance, pursuant to section 40 of the temporary insurance rate-stabilization program (L 1986, ch 266, § 40). The issue presented is whether the primary and excess premium rates established by the Superintendent pursuant to section 40 are inconsistent with other statutory requirements (see, Insurance Law §§ 5505, 2303) and thus arbitrary and capricious. We hold that the Superintendent’s interpretation of section 40 was reasonable, that the rates set in reliance on this interpretation were not arbitrary or capricious, and that petitioner’s alleged claim of confiscation does not lie. Accordingly, we reverse the order of the Appellate Division which affirmed the Supreme Court judgment annulling the Superintendent’s determination, and reinstate that determination.

I.

Petitioner, the Medical Malpractice Insurance Association (MMIA), is a nonprofit unincorporated association which was created by the Legislature in 1975 in response to the withdrawal of many private insurance companies from the medical malpractice market in New York. MMIA was created for the express purpose of providing medical malpractice insurance, which is no longer readily available in the voluntary market (L 1975, ch 109, § 17; see, Insurance Law § 5502 [c], [d]). MMIA is required to provide primary medical malpractice insurance to physician applicants with policy limits of $1 million per claim, and an annual aggregate limit of $3 million (Insurance Law § 5502 [e] [1]). In 1985, the Legislature mandated that MMIA provide excess coverage of at least $1 million per claim, and $3 million for all claims in any one policy year (L 1985, ch 294, § 17). Since 1975, the Superintendent has set premium rates pursuant to provisions of the Insurance Law requiring the lowest possible rates consistent with the maintenance of MMIA’s solvency, and the establishment of reasonable reserves and surpluses (Insurance Law § 5505 [a], [b]; see also, Insurance Law § 2303).

From 1980 to 1985, MMIA’s rate increased by over 200%. To alleviate this critical problem, in 1985 and 1986, the Legislature implemented various changes in the prosecution of medical malpractice liability cases (L 1985, ch 294; L 1986, chs 266, 682). Significant changes were made in payment of damages, attorneys’ fees, pretrial discovery, and the application of joint and several liability for noneconomic losses (see generally, Note, New York’s Medical Malpractice Insurance Crises — A New Direction for Reform, 14 Fordham Urban LJ 773 [1986]).

A hearing on the rates to be established for 1985-1986 was held before a Special Deputy Superintendent (SDS). Following extensive hearings, the SDS found that MMIA was entitled to an 86.7% increase in physician and surgeon rates. However, before recommendations could be implemented, the Governor signed the Medical Malpractice Reform Act of 1986 (L 1986, ch 266). Pursuant to section 40 of this Act, the Superintendent was directed to establish rates for each policy year commencing July 1, 1985 through June 30, 1988. In addition, section 40 authorized the Superintendent, commencing July 1, 1989, to impose an annual surcharge of up to 8%, if needed, to satisfy any actuarially projected deficiency resulting from the rates that he had established for each of the 1985-1988 policy years (L 1986, ch 266, § 40). Section 40 provides that the surcharges shall be deemed income earned for the purposes of Insurance Law § 2303 which requires that premium rates be calculated in such a way as to maintain solvency.

Relying on section 40, the Superintendent promulgated the Sixth, Seventh, Eighth and Tenth Amendments to Regulation No. 101 (11 NYCRR 70.8) establishing primary and excess premium increases for 1985-1986, 1986-1987, and 1987-1988. The allowed increases have been established as follows:

1985- 1986 1986- 1987 1987- 1988 Primary Rate 14% 9% 9% Excess Rate 1st Layer 2nd Layer 30% 20% 35% 24% 40% 28%

The Superintendent has not yet established a surcharge rate, since, under section 40, such a determination can only be calculated after any deficiency arising from the prior years is determined. However, in order to facilitate the calculation of deficiencies arising from the three policy periods, and the corresponding future surcharge needed to offset the prior deficiencies, the Superintendent directed the establishment of segregated accounts for premium payments, reserves and investment income attributable to each of the policy periods. Critically, in setting these rates, the Superintendent concededly considered that a surcharge of up to 8% could be imposed in the future. Both parties agree that without this consideration of future surcharges, both the primary and the two excess layers of insurance are entirely inadequate to meet the statutory standards of solvency under the Insurance Law (see, Insurance Law §§ 5505, 2303).

MMIA brought the present article 78 proceeding to challenge the Superintendent’s approach, contending that his interpretation of section 40 is unreasonable, and has resulted in rates which are not actuarially sound, self-supporting, based upon reasonable standards or consistent with statutory standards of solvency. MMIA also claims that the rates are confiscatory and will result in an unconstitutional taking of property in violation of the State and Federal Constitutions (US Const 5th, 14th Amends; NY Const, art I, §§ 6, 7).

Implementation of the rates was stayed on August 12, 1986, and the parties agreed by stipulations to interim primary and excess rates for the 1985-1988 policy years pending exhaustion of all appeals in this proceeding. The issues raised in the proceeding were then submitted to a Referee, who agreed with the Superintendent that future surcharges should be considered in fixing present rates, and concluded that the Superintendent, in setting the 1985-1988 primary rates, properly relied upon actuarial figures derived, in part, from the original figures supplied by the SDS. However, concerning the excess rates, the Referee recommended a remand to the Superintendent for further explanation since he found the record before him to be insufficient.

Supreme Court rejected the Referee’s report and set aside the determination of the Superintendent. The court disagreed with the Superintendent’s interpretation of section 40, reasoning that the language directing insurers to establish segregated accounts for the 1985-1988 policy years expressed a "legislative hope that the rates to be set would be sufficient, under the existing circumstances of general uncertainty in the malpractice insurance field”, without any surcharge at all (137 Misc 2d 785, 791). The court ruled that future surcharges were not even to be considered by the Superintendent, "until his monitoring of the accounts toward the end of the 1985-1988 period established a necessity for that action” (id.). The Superintendent’s interpretation was found to be at odds with the "self-supporting” requirement for rates contained in section 5505 (Insurance Law § 5505). The court also rejected the Referee’s findings that the rates established would not impermissibly impair the solvency of MMIA, and questioned the constitutionality of section 40. Finally, the court gave short shrift to the Superintendent’s actuarial calculations concerning future rate structure. The court simply classified the figures as "scenarios”, and concluded they were insufficient. A divided Appellate Division affirmed on Supreme Court’s opinion, the dissenting Justices agreeing with the Superintendent’s interpretation of section 40, particularly in view of its provision treating surcharges as earned income for the purposes of section 2303 (see, Insurance Law § 2303 [requiring that all earned income be included in determining whether the rates comply with the statutory requirements of solvency]).

II.

At issue in this appeal is whether the Superintendent’s consideration of future surcharges in the fixing of present rates was consistent with section 40, and the statutory requirements of solvency set forth in sections 2303 and 5505 of the Insurance law. Section 5505 (b) of the Insurance Law, which governs MMIA, provides in pertinent part: "All rates shall be on an actuarially sound basis, be calculated to be self-supporting, be based upon reasonable standards * * * The premiums shall be fixed at the lowest possible rates consistent with the maintenance of solvency of the association and of reasonable reserves and surplus therefor.” Section 2303 provides that the "[r]ates shall not be * * * detrimental to the solvency of insurers.” As the parties agree, without the consideration of future surcharges in determining present rates, the rates set by the Superintendent would be inadequate and would not satisfy the statutory requirements of solvency.

In reviewing the Superintendent’s interpretation of his legislative authorization in section 40, we defer to his special expertise and views, unless the interpretation is irrational or runs counter to the clear wording of the statutory provision (see, New York Pub. Interest Research Group v Town of Islip, 71 NY2d 292, 303; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459; Ostrer v Schenck, 41 NY2d 782, 785). We conclude from the statute and its history that the Superintendent’s interpretation of the statute is reasonable and should be sustained.

The Superintendent’s position is based upon the last sentence of section 40, which provides: "The surcharges authorized herein shall be deemed to be income earned for the purposes of section two thousand three hundred three of the insurance law.” He also relies on Insurance Law § 2303, which provides that "[i]n determining whether rates comply with the foregoing standards, the superintendent shall include all income earned by such insurer”. Construing these provisions together, the Superintendent concluded that the anticipated future surcharges, which are designated as income earned, should be considered both in determining present rates and in calculating the solvency of MMIA as required by sections 2303 and 5505. This view of the statutory language is reasonáble. If future surcharges were not to be accounted for until actually received beginning in 1989, then the last sentence of section 40 would be superfluous, since moneys actually received would undoubtedly be deemed income earned at that time. Thus, the Legislature must have intended that the future surcharges be considered on an accrual basis similar to the treatment of investment income (see generally, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 92, 94).

Further, the legislative history is clear. Governor Cuomo noted in his approval memorandum that "the bill authorizes the Superintendent of Insurance to establish rates for a three-year period (July, 1985-June, 1988) that will provide a measure of badly needed premium stability as these reforms begin to take hold. In establishing these premium levels, the Superintendent is authorized to consider the availability of surcharges in future years that could be imposed, beginning in 1989, to restore any potential deficiency created during the premium stabilization period” (1986 NY Legis Ann, at 161 [emphasis added]).

It is clear that temporary rate stabilization is designed to complement the numerous remedial measures codified in 1985 and 1986 (L 1985, ch 294; L 1986, ch 266). Section 40 is designed to bridge the gap and allow the other reforms to start taking effect. Further, as pointed out by the dissenting Justices, if petitioner’s interpretation of section 40 is correct, section 40 would mean nothing and do nothing. If the Superintendent cannot account for future surcharges in calculating present rates, then the current rate increase would have to be approximately 86.7% — the rate recommended by the SDS. Nothing in chapter 266 reveals that the Legislature intended such extraordinary increases in premiums from 1985 through 1988. To the contrary, as chapter 266, section 1, plainly states, the purpose of the chapter is to "reduce the cost of [medical] malpractice insurance * * * [and] significantly reduce physician and health care system costs in the short-run” (L 1986, ch 266, § 1), during which time the positive actuarial effects of the prophylactic measures in the 1985 and 1986 legislation can begin to serve their purpose.

Thus, we conclude that the Superintendent correctly interpreted section 40 by considering future surcharges.

III.

We next consider whether the Superintendent’s reliance upon his actuary’s calculations was arbitrary or capricious (see, CPLR 7803 [3]; Matter of Colton v Berman, 21 NY2d 322; Matter of Schwartz v Corcoran, 118 AD2d 355, 361). Supreme Court gave short shift to respondent’s actuarial data, simply labeling them as "scenarios”, and concluding that the rates were not set on an actuarial basis as required by Insurance Law § 5505 (b). However, as the Referee found, actuarial data existed, and the Superintendent’s rate decisions were based on such data. It is axiomatic that a court reviewing the determination of an agency may not substitute its judgment for that of the agency and must confine itself to resolving whether the determination was rationally based (see, Matter of Procaccino v Stewart, 25 NY2d 301). We conclude that in annulling the Superintendent’s determination the courts below exceeded their review powers.

Throughout the course of this litigation, the parties’ actuaries have disagreed on almost everything. Just as they disagree concerning the impact of the surcharge on future deficits, the actuaries also disagree about the potential beneficial impact of the 1985 and 1986 reform legislation. A disagreement among actuaries, however, is not evidence that the Superintendent’s acceptance of one set of conclusions was arbitrary (see, Matter of New York State Council of Retail Merchants v Public Serv. Commn., 45 NY2d 661, 672-674; Montgomery v Daniels, 38 NY2d 41, 53).

Respondent’s actuarial projection used the SDS’s 86.7% suggested rate increase as a starting point. The purpose of this calculation was to determine whether an 8% surcharge to future premiums, commencing with the policy year 1989-1990, would ultimately offset deficiencies arising from the curtailed rates set for policy years 1985-1988. Based on the Superintendent’s calculations, it was shown that the deficit caused by the 1985-1988 rates could be cured by approximately the year 2000. While the computation was founded upon numerous assumptions, including future interest rates, projected decreases in severity of claims due to accompanying legislative reforms, and the Superintendent’s willingness to permit "adequate” increases beginning in 1988-1989 and the following years, the use of such assumptions does not render the Superintendent’s conclusions irrational.

As to the rates for layers of excess coverage, the Referee concluded that the record as to how the rates for excess policies were calculated was not complete, and thus recommended remitting this question to the Superintendent for further explanation. We disagree (see, Matter of Colton v Berman, 21 NY2d 322, 334, supra).

As he has consistently done in the past, the Superintendent fixed over-all rates for excess layers as percentages of the rates approved for primary coverage. In addition, the Superintendent’s actuarial witness testified that while excess programs at inadequate rates would increase the deficit, there would be greater surcharge income in future years, and that the two would offset each other. This alone should have been sufficient (see, Matter of Procaccino v Stewart, 25 NY2d 301, supra). Moreover, this court can take judicial notice of the Regulatory Impact Statement (see, CPLR 4511 [b], [c]) which the Superintendent filed in connection with the Ninth Amendment to Regulation No. 101 while this case was pending before the Supreme Court (see, 11 NYCRR 70.8). This statement explains how the same factors used by the actuaries in setting primary rates were also used in setting excess rates, and consequently supplies an adequate rational basis for the excess rates (see, New York State Register, May 6,1987, at 10-11; see also, CPLR 7803; Matter of Colton v Berman, 21 NY2d 322, supra).

IV.

Accepting the Superintendent’s interpretation of section 40 and his actuarial projections, it is apparent that MMIA may well be forced to run at a deficit until the surcharges result in recoupment in approximately the year 2000. Petitioner argues that requiring MMIA to run a continued deficit for this length of time proves that the Superintendent’s decision is arbitrary and capricious, and, alternatively, results in a confiscation of property in violation of the Fifth and Fourteenth Amendments of the United States Constitution (US Const 5th, 14th Amends) and article I, sections 6 and 7 of the New York State Constitution (NY Const, art I, §§ 6, 7).

According to the express language of section 40, there is no time limit within which the deficits must be made up. Section 40 merely provides that the 8% surcharge "shall continue for such period of time as shall be sufficient to satisfy such deficiency” (L 1986, ch 266, § 40). As previously noted, the deficit attributable to the diminished rates for 1985-1988 on primary and excess policies will be recouped by about the year 2000. This 15-year period for recoupment is not unreasonable, since according to respondent’s chief actuary, the established rates coupled with the 8% surcharge after 1989, will enable MMIA to remain liquid and pay claims as they come due, at least through the year 2010. More importantly, medical malpractice claims are "long-tailed”, so that claims made on policies written between 1985 to 1988 will not, on average, be payable until after 1995-1998. Thus, it is entirely conceivable that the deficit will be made up while some losses attributable to policies written and premiums collected in 1985-1988 are still unpaid. The combination of the "long-tailed” nature of medical malpractice claims along with the other statutory reforms promulgated under the 1985 and 1986 acts makes the long-term deficit entirely reasonable. If the reforms have their expected salutary effect, the collection of unnecessarily high premiums will be avoided. If the reforms are not as successful as expected, the surcharge provides a sensible method of meeting any deficiency that may develop over the long period within which claims mature.

Finally, we reject MMIA’s claim that section 40 is confiscatory as to it. MMIA was created by the Legislature of the State of New York in order to provide much needed medical malpractice insurance. MMIA is a creature of statute, and all of its rights, obligations and duties have been defined by the Legislature (see, Insurance Law art 55). MMIA may operate only for fixed periods of time and only if the Superintendent determines that medical malpractice insurance is not readily available in the voluntary market (Insurance Law § 5502 [d]). In addition, MMIA’s operations are subject to the Superintendent’s extensive and direct control (Insurance Law § 5503 [c]). Importantly, although all insurance companies writing personal injury insurance in New York are required to be members of MMIA as a condition of transacting business in this State (Insurance Law § 5502 [a]), MMIA is a nonprofit unincorporated association which is a legal entity separate and distinct from its members (Insurance Law § 5502 [b]). Moreover, all funds and reserves of MMIA are held and invested separately from its members (id.).

Thus, as a statutory entity created by the Legislature, the State’s broad police power can be implemented to foster affordable medical malpractice coverage, with the possibility that MMIA will operate under a deficit. Indeed, such deficits were expressly contemplated in the enabling legislation (Insurance Law §§ 5507, 5509). In this regard, even if MMIA will operate at a continued loss, such a loss is not confiscatory visá-vis MMIA (see, Brooks-Scanlon Co. v Railroad Commn., 251 US 396, 399 ¿"It is true that if a railroad continues to exercise the power conferred upon it by a charter from a State, the State may require it to fulfil an obligation imposed by the charter, even though fulfilment in that particular may cause a loss.”]; Missouri Pac. Ry. Co. v Kansas, 216 US 262, 276, 278; Atlantic Coast Line v North Carolina Corp. Commn., 206 US 1). Since the individual insurance companies which are members of MMIA and are required to make up any deficit which may be incurred by MMIA (Insurance Law § 5507 [b]) *8 are not parties to this proceeding, we do not consider the degree to which the Superintendent’s regulations, or the underlying statutory scheme, may be confiscatory as to them (see, Alliance of Am. Insurers v Cuomo, 854 F2d 591, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, the petition dismissed and the determination of the Superintendent of Insurance reinstated.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . Section 40 provides in pertinent part that: "The superintendent of insurance shall establish rates for policies providing coverage for physicians and surgeons medical malpractice for the periods commencing July first, nineteen hundred eighty-five and ending June thirtieth, nineteen hundred eighty-eight. The superintendent shall direct insurers to establish segregated accounts for premiums, payments, reserves and investment income attributable to such premium periods and shall require periodic reports by the insurers regarding claims and expenses attributable to such periods to monitor whether such accounts will be sufficient to meet incurred claims and expenses. On or after July first, nineteen hundred eighty-nine, the superintendent shall impose a surcharge on premiums to satisfy any actuarially projected deficiency that is attributable to the premium levels established pursuant to this section for such periods; provided, however, that such annual surcharge shall not exceed eight percent of the approved adequate rate and that such annual surcharges shall continue for such period of time as shall be sufficient to satisfy such deficiency * * * The surcharges authorized herein shall be deemed to be income earned for the purposes of section two thousand three hundred three of the insurance law” (L 1986, ch 266, §40).

      . When this action was initiated only the Sixth and Seventh Amendments had been passed, and thus only these amendments were challenged. However, the parties have agreed by stipulation to allow petitioner to supplement its petition and challenge the provisions of the Eighth and Tenth Amendments.

      . Following the Appellate Division’s affirmance, section 40 was amended as follows: "Notwithstanding any provision of the insurance law, rates already established and to be established by the superintendent pursuant to this section are deemed adequate if such rates would be adequate when taken together with the maximum authorized annual surcharges to be imposed for a reasonable period of time whether or not any such annual surcharge has been actually imposed as of the establishment of such rates” (L 1988, ch 184, § 19).
      The amendment was made retroactive to July 8, 1986, the day before the rates challenged in this proceeding were initially promulgated (L 1988, ch 184, §22). In addition, other amendments extend the Superintendent’s authority to establish rates pursuant to section 40 through June 30, 1991, and increases the maximum surcharge to 25%, beginning in the 1991-1992 policy year, and continuing until any deficiencies have been recouped (L 1988, ch 184, § 19; ch 186).
      After these enactments, respondent sought to renew and/or reargue before the Appellate Division. The court granted renewal but adhered to its original decision, the same two Justices again dissenting. By stipulation, both the appeal from the original decision, and the appeal from the order adhering to that decision, have been consolidated. Since we conclude that the Superintendent’s original interpretation of the unamended version of section 40 was proper, we need not address the effects, if any, of the subsequent amendments.

      . Severity refers to the amount of losses on such claims. Importantly, section 5505 (a) provides that MMIA’s rates shall give "due consideration to the past and prospective loss and expense experience for medical malpractice insurance written and to be written in this state, trends in the frequency and severity of losses, the investment income of the association, and such other information as the superintendent may require.” (Insurance Law § 5505 [a].) Thus, section 5505 (a) instructs the Superintendent to extrapolate upon trends in medical malpractice insurance. It cannot be deemed unreasonable, as a matter of law, to consider the potential beneficial impact of the accompanying reforms on the severity of future claims.

      . In its Regulatory Impact Statement, the Superintendent points out that the average payout time for excess claims is significantly greater than 10 years. "Since many excess losses for policies written in policy years 1985/-86 and 1986/87 will not be payable until beyond the year 2000, the excess deficit will be made up while some losses attributable to excess policies written during policy years 1985/86 and 1986/87 remain unpaid” (New York State Register, May 6,1987, at 11).

      . MMIA, from its very inception, has been required to maintain a stabilization reserve fund for the purpose of offsetting deficits and "for reimbursement to the association’s members for payment of any deficit arising out of the operations of the association” (Insurance Law § 5509 [a]). While recent legislation has been passed affecting the stabilization fund (L 1986, ch 266, § 11), MMIA has not raised any claims concerning the stabilization fund in this action (see, Medical Malpractice Ins. Assn. v Cuomo, 138 AD2d 177, lv granted 143 AD2d 548).


author: Kaye, J. Alexander, J.

text:
    The People of the State of New York, Respondent, v Scott DeGina, Appellant.
    Argued November 18, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      Julia Pamela Heit for appellant.
    I. The trial court usurped appellant’s right under the Sixth Amendment of the Federal Constitution to present a defense of his own choosing by wrongfully charging the jury on the affirmative defense of entrapment despite strenuous objections by the defense; the conduct of the court in compelling appellant to raise this unwanted defense before the jury was so egregious in and of itself that the foisting of such a defense on a defendant in a criminal trial cannot be construed as harmless error. (Faretta v California, 422 US 806; People v Albright, 65 NY2d 666; People v Martin, 66 AD2d 995; People v Laietta, 30 NY2d 68; People v Mann, 31 NY2d 253; People v Papa, 47 AD2d 902; People v Ventura, 66 NY2d 693; People v Crandall, 67 NY2d 111; People v Ventimiglia, 52 NY2d 350; People v Zackowitz, 254 NY 192.) II. Appellant was deprived of his Sixth Amendment right to the effective assistance of counsel by virtue of his counsel’s negligence in failing to communicate to the court in a timely manner that appellant accepted the plea offer, and by counsel’s failure to request a severance of appellant’s case from that of his codefendant given the antagonistic defenses by each. (Strickland v Washington, 466 US 668; People v Aiken, 45 NY2d 394; People v Baldi, 54 NY2d 137; People v Ford, 46 NY2d 1021; People v Jackson, 52 NY2d 1027; People v Bennett, 29 NY2d 462; People v Droz, 39 NY2d 457; People v Simmons, 110 AD2d 666; People v Rodriguez, 94 AD2d 805; People v Hood, 62 NY2d 863.) III. The court’s refusal to permit appellant to introduce into evidence Sanzo’s out-of-court statement, which statement constituted a declaration against his penal interest, deprived appellant of his due process right under the Fourteenth Amendment to present evidence in his own behalf and his due process right to a fair trial. (People v Settles, 46 NY2d 154; People v Maerling, 46 NY2d 289; People v Shortridge, 65 NY2d 309; People v Brensic, 70 NY2d 9.)

      Carl A. Vergari, District Attorney (Richard E. Weill of counsel), for respondent.
    I. Entrapment was a material legal principle applicable to this case. In charging the jury on this issue, the court properly insured that its instructions would not affect the People’s burden to prove appellant’s guilt beyond a reasonable doubt. (People v Johnston, 47 AD2d 897; Mathews v United States, 485 US —, 108 S Ct 883; People v Sundholm, 58 AD2d 224; People v Lauder, 65 AD2d 520; People v Victor, 62 NY2d 374; People v Albright, 65 NY2d 666; People v Ventura, 66 NY2d 693; People v Vereen, 45 NY2d 856; People v Koberstein, 66 NY2d 989.) II. Appellant is not entitled to the specific performance of an off-the-record, unconcluded plea offer. The record also does not establish that appellant’s representation by counsel was unconstitutionally ineffective. (People v McConnell, 49 NY2d 340; People v Danny G., 61 NY2d 169; People v Hood, 62 NY2d 863; People v Farrar, 52 NY2d 302; People v Winkler, 71 NY2d 592; People v Baldi, 54 NY2d 137; People v Cruz, 66 NY2d 61, 481 US 186; People v Lerner, 122 AD2d 813, 68 NY2d 1001; People v Angelakos, 70 NY2d 670; People v Love, 57 NY2d 998.) III. As appellant never offered his codefendant’s statement as evidence, he cannot claim the court refused to introduce it. Further, the only portion of this statement relevant to appellant’s case was not a declaration against codefendant’s interests. (People v Washington, 64 NY2d 961; People v Settles, 46 NY2d 154; People v Thomas, 68 NY2d 194; People v Maerling, 46 NY2d 289; People v Thompson, 129 AD2d 655; People v Shortridge, 65 NY2d 309.)
   OPINION OF THE COURT

Kaye, J.

This case, involving narcotics sales, presents two questions: first, was it error for the trial court to instruct the jury on the affirmative defense of entrapment over defendant’s consistent protestations that he was not advancing an entrapment defense, but was in fact putting forth a different defense, and second — if error — was the error harmless?

Defendant’s position both at trial and on appeal has been that he did not raise an entrapment defense and that it was error to charge the jury on that defense. Defendant claims that the entrapment instruction violated his fundamental right to present a defense of his own choosing and cannot be deemed harmless in any circumstances. Alternatively, he contends that because the entrapment charge shifted the burden of proof of criminal intent to him, permitted the jury to consider his predisposition to commit the crimes charged, and undermined the defense he actually raised, the error was prejudicial in this case.

The Appellate Division concluded that the defense was not entrapment and that the trial court’s instruction therefore constituted error. We agree. The Appellate Division, however, found the charge error harmless, and in that conclusion we cannot concur. While we need not reach defendant’s broader argument that it is invariably reversible error to charge a jury on an affirmative defense disavowed by defendant, on this record the error cannot be deemed harmless.

Synopsis of the Trial Record

Resolution of both questions presented requires a summary of relevant portions of the trial record.

In a brief opening, defense counsel stated that, although defendant did not have the burden of proof, the evidence would show that an undercover agent — John DiDomenico— kept after his client to sell him drugs. "He was trying to ensnare an innocent man” into selling something he didn’t want to sell. Defendant, however, did not sell the agent drugs. Counsel explained that, in order to "get this man off his back,” defendant ultimately sold him what turned out to be talcum powder, after which the agent, a "professional deceiver,” invented a case of drug sales against his client.

The People’s key witness was the undercover narcotics agent, John DiDomenico, who testified that he had been introduced to defendant under the assumed name Frank DeMarco after telling a police informant he wanted to buy cocaine. DiDomenico met with defendant a number of times in the following days for the purpose of making a purchase, but on each occasion defendant said he had been unable to obtain any cocaine. Eventually, DiDomenico told defendant that he was tired of these abortive meetings, at which point defendant gave him his home telephone number. DiDomenico subsequently arranged to meet defendant outside a bar, where they agreed that DiDomenico would purchase a gram of cocaine. When he arrived, defendant insisted that he first needed the money to buy the cocaine, and DiDomenico gave defendant $125 — which the officer conceded may well have been paid out of his own funds. Defendant returned several minutes later with an envelope that he claimed contained cocaine. Laboratory analysis later showed that what defendant had sold DiDomenico for his $125 was talcum powder, not cocaine.

According to DiDomenico, after he insisted that defendant make restitution, defendant and his friend, codefendant Robert Sanzo, gave him a tinfoil packet of opium and then offered to sell him opium and amphetamines that Sanzo had acquired from the drugstore where he worked. Having obtained a sample of the pills from Sanzo, DiDomenico agreed to purchase the drugs. He testified that defendant was present during the transaction, but it was Sanzo who actually possessed and delivered the drugs. Subsequent laboratory analysis showed the substances were indeed opium and amphetamines.

The only defense witness was defendant’s mother, who testified that during the month when DiDomenico claimed he bought drugs from defendant, she had received 15 to 20 telephone calls from a man named Frank, who asked to speak to defendant but would not leave a telephone number. She heard her son speak to Frank only once, during which defendant yelled at Frank. Frank came to her house toward the end of the month, when defendant and his good friend Sanzo were working in the yard. Frank called Sanzo over and spoke to him alone. Sanzo later told her that if Frank telephoned again, he — Sanzo—wanted to speak to him.

At a precharge conference, the prosecutor requested an entrapment instruction, arguing that defendant had based his defense on the claim that he "could not form the necessary intent to, I believe this to be the defense, although I’m not sure, at the conclusion of the case, that he could not form an intent to sell these drugs, simply because of the fact that he was trapped.” Over defense objection, the court declared that it would charge the jury on the entrapment defense.

In summation, defense counsel repeated the claim he had made in his opening — that DiDomenico was trying to "ensnare” his client by his constant efforts to get him to sell drugs, leading to defendant’s sale of talcum powder simply to get a "pest off his back.” That transaction, counsel argued, was the key to the entire case. Counsel asserted that it was Sanzo alone who later sold drugs to DiDomenico, and that DiDomenico had fabricated the story of defendant’s involvement simply because he was infuriated and humiliated at having been tricked into buying talcum powder, possibly even with his own money.

The court thereafter instructed the jury on the affirmative defense of entrapment, noting that the burden of proving all material elements of the charged crimes beyond a reasonable doubt was on the People, but that defendant then bore the burden of proving the affirmative defense of entrapment by a preponderance of the evidence. After reading the elements of the defense from Penal Law § 40.05, the trial court again noted that defendant "has the burden of proving by a preponderance of the evidence that he was actively induced or encouraged to commit a crime he would not otherwise be disposed to commit and was thus ‘entrapped’ under the law.” Defendant at this point reiterated that this was not the theory of his defense. During deliberations, and shortly before the return of a guilty verdict, the jury asked for the definition of entrapment. The court reread only the statutory definition of entrapment and its instruction on defendant’s burden of proof.

Defendant was convicted of several counts of criminal sale of a controlled substance, and the Appellate Division affirmed. While concluding that it was error to charge entrapment, the Appellate Division termed the error harmless beyond a reasonable doubt "given the overwhelming evidence regarding defendant’s intent to commit the crimes for which he was convicted” (140 AD2d, at 538). We now reverse.

Discussion

The entrapment defense was introduced in New York — one of the last States to recognize it — in 1967, as part of the current Penal Law. Penal Law § 40.05 sets forth the elements of the defense: "that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it.” As it is designated an affirmative defense, the burden to establish these elements by a preponderance of the evidence is placed on the defendant— unlike other defenses, as to which the defendant has no burden and which the People must disprove beyond a reasonable doubt (Penal Law § 25.00 [1], [2]).

A defendant thus assumes a substantial burden in asserting entrapment. Indeed, New York imposes a heavier burden than either the Federal courts, where entrapment is an ordinary defense — not an affirmative defense — or the Model Penal Code and those States following its formulation, where entrapment is a so-called "objective” affirmative defense. In contrast to Penal Law § 40.05, which requires that defendant prove that he or she had no disposition to commit the acts charged (see, People v Calvano, 30 NY2d 199, 203-204), under the Model Penal Code approach the character of the particular defendant is not a relevant subject of inquiry, the pertinent question being the nature of the police conduct and whether it was such as to cause an ordinary person to commit the crime (ALI Model Penal Code § 2.10, comment, at 20 [Tent Draft No. 9]).

It should be borne in mind, however, that affirmative defenses were introduced into the law not "as a hardening of attitudes in law enforcement [but] rather as a civilized and sophisticated amelioration.” (People v Patterson, 39 NY2d 288, 306 [Breitel, Ch. J., concurring].) As such, it is necessary to guard against abuse of affirmative defenses "to unhinge the procedural presumption of innocence” or "to undermine the privilege against self incrimination by in effect forcing a defendant in a criminal action to testify in his own behalf.” (Id., at 305.)

Applying these legal standards to the factual record in this case, we agree with the conclusion reached by the Appellate Division: "a fair reading of the record establishes that the entrapment defense was not raised” (140 AD2d, at 538, supra). Defendant’s trial theory had in common with a defense of entrapment the premise of overreaching and misconduct by a police officer. But defendant did not contend that he was "induced or encouraged” to engage "in the proscribed conduct.” (Penal Law § 40.05.) His defense was to deny engaging in the "proscribed conduct” at all; he sold the officer only talcum powder. Defendant sought to have the jury disbelieve DiDomenico as to any sales of controlled substances by him, and to believe instead that the officer sought retaliation by falsely involving him in criminal charges.

Nor did counsel’s use of the word "ensnare” in his opening and summation, convert his defense to one of entrapment. Counsel used the word "ensnare” to describe DiDomenico’s repeated efforts to cause defendant to sell him drugs. DiDomenico’s alleged overzealousness was relevant to defendant’s theory that the officer was angered by what actually happened and ultimately framed him. Counsel was not forbidden to urge the jury to draw these inferences at peril of being saddled with the burden of proving a full-blown entrapment defense.

Having concluded from a fair reading of the record that defendant did not raise the entrapment defense, we further agree with the Appellate Division that it was error to accede to the People’s request for such an instruction.

Imposing the burden of proving entrapment on defendant, who had not raised it, constituted an abuse of the affirmative defense in derogation of defendant’s right to have the State bear the entire burden of proof. Moreover, a trial court is not authorized to instruct the jury on legal principles that are not applicable to the particular case (CPL 300.10 [2]). As we have recognized, jury instructions have singular significance in criminal trials, where a charge error may well result in the deprivation of a fair trial and require reversal (see, e.g., People v Owens, 69 NY2d 585, 589). Whether or not reversible error in every case, the erroneous instruction prejudiced defendant in at least two respects.

First, a defendant unquestionably has the right to chart his own defense (see, People v Martin, 66 AD2d 995, 996), and in this case the entrapment charge undermined the defense chosen by defendant. In telling the jury that when counsel used the word "ensnare” he was really raising the defense of entrapment, the court’s instruction effectively impaired the success of the different inferences urged by defendant. Furthermore, by informing the jury that defendant was claiming he had sold the drugs as a result of the officer’s inducement, the trial court placed defendant in the midst of contradictory defenses on the critical question of whether he had or had not sold any drugs. Defendant was arguing that he had not sold any drugs to DiDomenico; the entrapment defense proceeded on the premise that he had sold drugs to DiDomenico. While a defendant is not forbidden to do this (see, People v Butts, 72 NY2d 746 [decided today]), it is plainly a hazardous tactic, for it not only risks confusing the jury as to the nature of the defense but also may well taint a defendant’s credibility in the eyes of the jury. Indeed, only recently a Supreme Court ■Justice aptly termed such a strategy "self-penalizing.” (See, Mathews v United States, 485 US —, 108 S Ct 883, 889 [Scalia, J., concurring].) Certainly it is not a strategy that should be thrust on a defendant who has not chosen it.

Second, the court imposed on defendant an affirmative burden of proof he had not undertaken by his defense theory. The jury was charged that defendant had the burden of establishing by a preponderance of the evidence that DiDomenico actively enticed him into committing the crime, and that without such enticement defendant would not have been disposed to commit the crime. Understandably, in light of his quite different defense, defendant did not attempt to present evidence, through his own witnesses or through cross-examination, to demonstrate that DiDomenico actively encouraged or induced him to sell drugs after the talcum powder incident, as would have been required to prevail upon a claim of entrapment. Nor did defendant make any affirmative effort to meet his burden of showing a lack of disposition to commit the charged crimes, as it was his claim that they had never happened at all. Thus, the court’s charge imposed upon defendant an affirmative burden that the jury was bound to conclude he had failed to sustain (see, People v Alwadish, 67 NY2d 973, 974).

While it is true, as the People point out, that the trial court initially, and properly, charged the jury that they were not to reach the affirmative defense of entrapment unless and until they determined that the People had met their higher burden of proving the elements of the charged crimes, we do not therefore conclude that defendant could not have been prejudiced by the imposition of a burden he was unprepared to meet. In that defendant advanced only a defense — as to which he had no affirmative burden of proof (see, People v Albright, 65 NY2d 666) — the suggestion that he had assumed a burden of proof in connection with his defense itself had the potential to mislead the jury (People v Victor, 62 NY2d 374, 378 [reversal required where alibi charge may have misled jury as to defendant’s burden]). We note, moreover, that the jury requested that the instruction on entrapment be reread during deliberations, demonstrating that they did in fact consider the issue injected by the trial court’s erroneous acquiescence in the District Attorney’s request to charge.

Finally, we reject the Appellate Division’s conclusion that the evidence of defendant’s intent was overwhelming and consequently, prejudice notwithstanding, the erroneous instruction was harmless. If DiDomenico’s testimony were fully credited, then the evidence of defendant’s intent to sell drugs was indeed overwhelming. But the defense urged was not that defendant had no intent to sell DiDomenico narcotics; the defense urged was that he simply had not done so, and that the officer’s testimony was a fabrication. Overwhelming evidence of intent would be relevant to the question whether the defense of entrapment had been made out, but was not proof whether the sales took place at all. In addition, DiDomenico’s testimony was the sole source of evidence both of defendant’s intent and of the sales. It was this very testimony that defendant sought to have the jury discredit. The erroneous instruction deprived defendant of the opportunity to have the jury evaluate the officer’s testimony in assessing defendant’s claim accurately. It is no answer to say that the evidence of intent proffered by the officer nonetheless rendered that error harmless.

While we have concluded that defendant’s remaining contentions lack merit, the erroneous entrapment charge unduly prejudiced defendant and requires a new trial.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Alexander, J.

(dissenting). Because I believe, contrary to the position advanced by the majority, that a fair reading of the record unquestionably establishes that defendant raised an entrapment defense in every conceivable way short of reading the statutory definition to the jury, I conclude that the lower court was fully justified in instructing the jury on the law of entrapment over defense counsel’s objection and thus committed no error. Further, because there is inherent in the majority view the troubling potential for abuse that would permit clever defense counsel to obliquely raise the entrapment issue at trial while avoiding the court’s instruction that would enable the jury to properly evaluate the defense, thereby evading the affirmative evidentiary requirements that criminal defendants urging entrapment must satisfy, I respectfully dissent.

Entrapment is "an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it” (Penal Law § 40.05). Being an affirmative defense, the People need not disprove entrapment beyond a reasonable doubt and it is defendant who bears the burden of proving the defense by a preponderance of the evidence (Penal Law § 25.00 [2]). Thus, a defendant urging entrapment assumes the burden of showing that the police actively encouraged or induced him to commit a crime when he was not predisposed to do so (see, People v Martin, 66 AD2d 995).

Upon close examination of the record, it is at once apparent that defendant’s attorney repeatedly attempted to portray his client as having been victimized by the deceptions and machinations of the undercover officer. In his opening, the attorney described the officer as "a professional deceiver” who "befriended” and "took advantage” of defendant. He recounted numerous phone calls placed by the undercover officer to defendant’s residence in an attempt "to ensnare an innocent man, Mr. Scott Degina, into selling something that an innocent man didn’t want to sell”. In a similar vein, the attorney suggested that the officer was "interfering with [defendant’s] tranquility and his lifestyle” and that he was "trying to force [defendant] to do something he doesn’t want to do”. The allusion to the entrapment defense here could hardly be more obvious; defense counsel was clearly asking the jury to believe that defendant was actively encouraged to commit a crime he was not predisposed to commit.

The fact that an entrapment defense was being pursued is further demonstrated by the tenor of the cross-examination where, in questioning the undercover officer, counsel repeatedly attempted to elicit statements suggesting that defendant had consistently resisted the seductions of the police:

"Defense Counsel: Isn’t it true, Sir, that every time that you called Mr. Degina, if he answered the phone, or every time you tried to make contact with Mr. DeGina, he didn’t want to speak to you, and he didn’t want to have anything to do with you?
"District Attorney: Objection form of the question. Compound.
"The Court: The objection is sustained.
"Defense Counsel: Isn’t it true that Mr. DeGina wasn’t interested in speaking to you?
"Witness: No, that’s not true.
"Defense Counsel: Isn’t it correct, Sir, that you were promoting the transaction?
"Witness: No.
* * *
"Defense Counsel: Isn’t it true that Mr. Degina told you to stop calling his house? Scott DeGina; isn’t that true?
"Witness: I don’t recall.
* * *
"Defense Counsel: And you said — and isn’t it a fact, Sir, that you told Mr. DeGina, when you handed him the money, you told him, T know where you can get it.’ Isn’t that true? T know where you can get the cocaine.’ When you gave him the $125.00?
"Witness: No.
"Defense Counsel: Isn’t it true that he showed absolute [reluctance]?
"District Attorney: Objection to form. Argumentative.
"The Court: Yes, the objection is sustained.
"Defense Counsel: Isn’t it true that he was reluctant?
"District Attorney: Objection. Form.
"The Court: Objection is sustained.
"Defense Counsel: Isn’t it true that he did not want to?
"District Attorney: Same objection, Judge.
"The Court: You are asking for an opinion. The objection is sustained.
* * *
"Defense Counsel: Isn’t it true that Mr. Degina said he did not want to sell you [cocaine] for $125.00.
"Witness: No, it’s not true.
* * *
"Defense Counsel: You are familiar with buying drugs, you’ve done it a lot; right?
"Witness: Right.
"Defense Counsel: Would you say it’s common practice for an enthusiastic would-be seller of drugs to sell a good customer talcum powder?
"District Attorney: Objection to the form of the question.
"The Court: Objection sustained.”

That the foregoing exchange is relevant to the issue of predisposition to commit the crimes charged and is designed to counteract such an inference is self-evident. It is clear that defense counsel knew exactly what he was doing in presenting for the jury’s consideration the picture of an innocent man who was lured by the police into a drug transaction he neither sought nor desired.

The majority appropriately notes (majority opn, at 773) that during his summation defense counsel repeated his contention that the undercover officer had been trying to "ensnare” defendant. The majority fails to mention, however, that defense counsel also explicitly referred to a very well-known entrapment case in suggesting that defendant’s predicament was "more serious than the DeLorean case” (alluding to the case of United States v DeLorean in which a famous car manufacturer was acquitted of drug-related charges by reason of entrapment). This telling reference is directly at odds with the position advanced by defendant in his brief to us that "[e]ven after the court informed counsel that it intended to charge the affirmative defense of entrapment, counsel in his closing summation did not conform his arguments to encompass this defense”. It is simply impossible to interpret defense counsel’s allusion to the DeLorean case in any way other than as a deliberate effort, consistent with counsel’s trial strategy up to that point, to impress the entrapment defense upon the collective conscience of the jury, even while urging that defendant played no part in the crimes charged.

Given the ample record evidence demonstrating defense counsel’s deliberate strategy to raise the entrapment defense at trial, I cannot agree with the majority’s conclusion that charging the jury on the law of entrapment was error. Indeed, it may not be disputed that the trial court was obligated to instruct the jury on the material legal principles applicable to the case (CPL 300.10 [2]). Not delivering the entrapment charge, in the circumstances presented, would have breached this obligation and left the jury without the legal tools necessary to cope with the evidence adduced at trial (see, People v Magliato, 68 NY2d 24 [where defendant raises justification defense, court is obligated to instruct jury on elements of that defense]).

Nor does requiring the entrapment charge on these facts present defendant with a "Hobson’s choice” (see, majority opn, at 776, n 2) requiring him to pursue a particular defense strategy not based on entrapment only at the peril of being saddled with an unwanted entrapment charge at the end of the trial. Here, it was defendant who, by intentionally raising the affirmative defense,- all but guaranteed that the court would deliver the charge. Defense counsel’s repeated references to "ensnaring” and his obvious attempts to persuade the jury that defendant was not predisposed to committing the crimes charged would have been unnecessary if the strategy of the defense were limited solely to proving that the undercover officer framed defendant out of anger after defendant sold him talcum powder instead of cocaine.

Holding defendant to his chosen defense strategy does not, as suggested by the majority, "[assume] the falsity of defendant’s version of events” (see, majority opn, at 776, n 2), but simply ensures that his version of events, or versions if more than one, are properly reflected in the court’s instructions to the jury. In this regard, the fact that defense counsel apparently also pursued a parallel strategy by which he attempted to portray defendant as a nonparticipant in the drug transaction who was framed by the undercover officer neither diminishes nor eliminates the entrapment defense as it is recognized that a criminal defendant may maintain inconsistent defenses (see, Mathews v United States, 485 US —, 108 S Ct 883, 887-888; People v Butts, 72 NY2d 746, 750 [decided today]). Inasmuch as the entrapment defense was clearly and intentionally raised at trial, had the court failed to instruct the jury in respect thereto, defendant would have succeeded in evading the affirmative proof obligations of that defense imposed by law, thereby misleading the jury into believing that the People carried the burden of disproving entrapment beyond a reasonable doubt.

To permit a criminal defendant, through his attorney, to subtly, but clearly, raise an affirmative defense at trial while avoiding the proof requirements of that defense and the charge pertaining thereto is patently improper and tends to undermine the fairness of the adversarial system. A fair trial is not a trial fair to one side alone but rather one which scrupulously respects and protects the legal rights of the criminal defendant while affording the prosecution a genuine unfettered opportunity to prove the defendant’s guilt beyond a reasonable doubt (see, Hayes v Missouri, 120 US 68, 70 [impartiality of jury "requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held”]). This is simply not possible where, as here, the defense attorney is permitted, through the artful manipulation of language, to offer an entrapment defense for the jury’s consideration while denying that same jury, by objecting to the court’s instruction, essential knowledge of the legal principles applicable to that defense. Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Wachtler and Judges Simons, Titone and Hancock, Jr., concur with Judge Kaye; Judge Alexander dissents and votes to affirm in a separate opinion in which Judge Bellacosa concurs.

Order reversed, etc.

      . The facts of this transaction formed the basis for a separate indictment of Sanzo. The jury was given a limiting instruction that this evidence was not to be considered against defendant, who had not been involved.

      . Addressing the dissent, defendant never adduced any evidence to show, nor did he argue, that following the talcum powder incident he had sold the opium and amphetamines to DiDomenico only because of the officer’s active encouragement. Notably, defendant also did not argue that the jury could infer, if they disbelieved his denial of the offenses, that he had sold the drugs as a result of the officer’s encouragement before the talcum powder transaction. The import of the dissent is that a defendant who found himself in the situation depicted by defense counsel — pursued by a police officer seeking to make a drug purchase and then framed when he failed to provide drugs — must face a Hobson’s choice at trial: defendant would be forced either to avoid eliciting or commenting on the very evidence that provided an explanation of the officer’s motive to fabricate the charges, or mount a full-scale entrapment defense. The dissent’s characterization of the defense proffered in the case as merely an artful attempt by counsel to smuggle in the concept of entrapment assumes the falsity of defendant’s version of events, which it is not our province to do.