In any prosecution for an offense, it 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.  Inducement or encouragement to commit an offense means active inducement or encouragement.  Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

Lazer, J. P., Thompson, Niehoff and Boyers, JJ., concur.

Judgment modified, on the law, by reducing the conviction of robbery in the first degree to one of robbery in the third degree, by vacating the convictions of criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree and dismissing those counts, and by vacating the sentence imposed. As so modified, judgment affirmed, and case remitted to Criminal Term for resentencing in accordance herewith.

On the afternoon of December 18, 1980, defendant's paramour admitted codefendants Mercado and Aviles into defendant's Brooklyn apartment. Mercado sat down in the kitchen, placed a black gun on the table, and told defendant that he had a "job" ready which needed a third person, and that defendant was coming with him. When defendant stated that he did not want to go, Mercado turned nasty, loud and angry and told defendant that if he knew what was good for him and his family he would go along. Defendant was afraid of Mercado because he knew of Mercado's reputation for violence. Since he also feared for the safety of his paramour and son, he eventually capitulated. Mercado left the premises for about 15 minutes to change the license plates on his car, but defendant did not try to leave or telephone the police. After Mercado returned, he, defendant and Aviles rode in his car to a jewelry store on Queens Boulevard in Forest Hills. When they arrived at the store, defendant was directed to stand on a divider on the opposite side of the street from the store. He was supposed to enter the store as soon as he saw Mercado walk in. Despite these instructions, defendant stood on the divider for about five minutes after Mercado had already entered the store. He did not try to flee the area or abandon the enterprise. Aviles entered the store first and complainant and his 74-year-old mother attempted to sell him a medallion. When Mercado entered, both men pointed black guns at complainant and his mother and announced a robbery. Mercado herded them into a back room while Aviles started taking jewelry. Defendant then arrived and Aviles let him in. Shortly thereafter, a police officer came by, realized what was happening and kicked in 496*496 the glass front door. The perpetrators then took complainant and his mother as hostages and attempted to leave the store. The police officers on the scene took cover behind parked automobiles. As the perpetrators were leaving, one of the officers apprehended Mercado. However, defendant had his arm around complainant's mother's neck and Aviles was staying close to her. The two men dragged her down the block telling the officers to stay back. Aviles then moved away from her, put his right hand in his coat and went into a crouching position. The police opened fire and struck Aviles at least three times. Defendant was then grabbed by another officer and arrested. The perpetrators were frisked and found to be unarmed. The police immediately searched the store and found three blue .38 caliber revolvers hidden in the back of the store. No black guns were ever found. The three guns were subsequently tested for fingerprints and the results were negative. After a joint nonjury trial, Mercado, Aviles and defendant were convicted of robbery in the first degree based upon use of a deadly weapon, criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree. The court stated that defendant failed to prove an affirmative defense of duress. During the trial, no evidence was adduced connecting the blue guns found by the police to Mercado, Aviles or defendant. No other proof was offered to show that Mercado, Aviles or defendant used loaded and operable weapons. Defendant's conviction on the charges of robbery in the first degree and criminal use of a firearm in the first degree were based on the use of a deadly weapon (Penal Law, § 160.15, subd 2; § 265.09, subd [1]). In order for a gun to be considered deadly, it must be proven that the gun was loaded and operable (Penal Law, § 10.00, subd 12; People v Howard, 37 AD2d 178). In addition, criminal possession of a weapon in the second degree requires proof that the gun was loaded (Penal Law, § 265.03). Since there was no proof that a loaded and operable firearm was used, defendant's convictions for criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree should be reversed and those counts dismissed. In addition, the charge of robbery in the first degree should be reduced to the lesser included offense of robbery in the third degree, i.e., that the defendant forcibly stole property (Penal Law, § 160.05; see People v Moy, 56 AD2d 853). In view of the foregoing, this case is remitted to Criminal Term for resentencing (CPL 470.20, subd 4). Defendant's claim of duress is without merit. By his own testimony, defendant described numerous opportunities to abandon his criminal activity and escape Mercado's acts of duress. A defense of duress may not be used when the force or threat used is incapable of immediate realization (People v Brown, 68 AD2d 503). Also, on several occasions, as when he went into the store after being left alone for five minutes, defendant voluntarily put himself back in a position where he could be subjected to duress. Thus, a duress defense was not established (Penal Law, § 40.00, subd 2; People v Irby, 61 AD2d 386). Defendant also claims that several procedural errors were made during the trial that require a reversal. The court erred in not allowing defendant to present evidence showing his state of mind as to knowledge of Mercado's bad and violent reputation. That evidence was excluded in order to avoid prejudicing Mercado's defense, although defendant's knowledge of specific violent incidents involving Mercado was a key element in defendant's defense of duress (see People v Miller, 39 N.Y.2d 543; People v Colgan, 50 AD2d 932). In the case at bar, however, the court admitted evidence of threats made by Mercado to defendant. Also, in its determination, the court acknowledged that defendant was afraid of Mercado due to Mercado's reputation for violence. These facts, plus the overwhelming evidence of defendant's guilt, render this error harmless (People v Crimmins, 36 N.Y.2d 230). Defendant claims that the court also erred when it admitted in evidence an extrajudicial confession by Mercado which implicated defendant. Defendant immediately 497*497 moved for a severance, which the court properly denied. Motions for a severance must be made before a trial (CPL 200.40, subd 1; 255.20, subd 1). When such a motion is made during a trial, it is not timely and is properly denied (People v Bornholdt, 33 N.Y.2d 75, cert den 416 US 905). In any event, defendant claims that the court should not have accepted the confession because he was effectively denied an opportunity to cross-examine Mercado on the statements made which implicated defendant (Bruton v United States, 391 US 123). The instant case is distinguishable from Bruton v United States (supra), in that this case was a nonjury trial. Thus, it can be assumed that the court's superior knowledge of the laws of evidence would eliminate the major concern of Bruton (supra), namely, that a jury would look at incriminating extrajudicial statements of one defendant in determining a codefendant's guilt, despite instructions to the contrary (Bruton v United States, supra, p 126). In any event, it is evident from reading the court's determination that almost no credence was given to Mercado's statements. In addition, defendant gave testimony which placed him at the scene of the crime and which left no doubt that he participated in it. The only question at issue was defendant's own volition, a matter which the court decided against defendant based on his own testimony. Under the circumstances, evidence of defendant's guilt was overwhelming, and there is no reasonable possibility that the admission of the statements in question contributed to his conviction. Thus, any error which may have been committed in this regard was harmless (Harrington v California, 395 US 250; People v Pelow, 24 N.Y.2d 161; People v Miller, 74 AD2d 961).

Concur — Murphy, P. J., Sandler, Lane and Markewich, JJ.

Silverman, J., dissents in a memorandum.

Reversed, on the law and as a matter of discretion in the interest of justice, and the matter remanded for a new trial.

806*806The defendant, Danny Pryor, participated together with two others in an armed robbery of the Twilight Lounge in The Bronx. Pryor's defense was that he was forced by the two others to participate in the crime. The dissent views the defense interposed as tenuous; however, we are reversing and remanding for a new trial because of cumulative errors which occurred. Defendant, though he may be ultimately found guilty, is entitled to a fair trial. We cannot say with the certainty of the dissent that there is no significant probability that, had the cumulative errors not occurred, defendant would not have been acquitted (see People v Crimmins, 28 N.Y.2d 407, 412). The major error committed was in instructing the jury about the defense of duress. Subdivision 1 of section 40.00 of the Penal Law defines the defense as arising when a "defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist" (emphasis added). The court instructed the jury that to find that the defendant acted under duress they must find that "the compulsion must be present and immediate and of such a nature as to induce a well-founded fear of impending death or serious bodily injury." The standard imposed by Trial Term is a more stringent one than required by statute and is based on section 859 of the old Penal Law. Though counsel for the defendant did not object to this instruction, we, as a matter of discretion in the interest of justice, find that this error deprived the defendant of a fair trial (CPL 470.15, subd 6, par [a]). Additional error crept in during the course of the trial. During the examination of character witnesses, defense counsel was erroneously precluded from inquiring whether defendant lacked a bad reputation (People v Malinowski, 43 AD2d 189). On cross-examination of another character witness, the District Attorney, over defendant's objection, asked the witness whether he would change his mind if he knew that the defendant had committed the present robbery. We have recently held this type of question improperly assumes that the defendant was guilty of the crime with which he is charged, and is one which should be avoided (People v Lopez, 67 AD2d 624). These errors regarding the examination of the character witnesses are most critical in the case at bar, since defendant had no prior record of either juvenile or adult offenses, and had a generally creditable background. The character evidence, if fully developed at trial and believed by the jury, could have created a doubt as to the truthfulness of the positive evidence presented sufficient to warrant acquittal (People v Miller, 35 N.Y.2d 65). Furthermore, the jury may have been swayed by comments of the prosecutor complaining that all the defendant had to do was to get one juror "second-guessing" and there would be no verdict, and inferring that the defendant grew up in a neighborhood where he could not easily be the subject of intimidation or duress. We find that these cumulative errors deprived the defendant of a fair trial and create a significant probability that, had they not taken place, defendant may have been acquitted. We have therefore directed a new trial.

Silverman, J., dissenting.

I would affirm the judgment of conviction. There is no dispute that there was an armed robbery by three men; that defendant was one of those three men; that he carried a loaded pistol; that he at one point exchanged the pistol with the 807*807other perpetrator for a loaded shotgun; and that he was one of the robbers. The defense was that the defendant was acting under duress. The claim of duress is ludicrous. According to defendant, the other two robbers approached him in a bar at about 9:00 P.M., some 12 hours before the robbery, and one of the men discussed with defendant the possibility of committing an armed robbery. When the defendant stared at him, the man said you are going to participate and the other man, who kept his hand in his pocket, said that defendant was going to participate or he was not going to leave the bar. That ended defendant's protests. He never saw or was told what the man was holding in his pocket. The three men then left the bar, got into a car in which they drove around silently for 12 hours looking for a place to rob, never stopping for gas and ending up 23 blocks from their starting point. They got to the social club, which was the scene of the robbery, and one of the men took from the trunk of the car (not from his pocket) three guns, and thrust upon defendant a loaded pistol in a holster which defendant put in his pocket. Immediately thereafter, defendant, in fear of his life and holding the loaded pistol, participated in the robbery even though at times the other robbers were not facing him. In the course of the robbery, one of the other robbers gave defendant his loaded shotgun and defendant gave the other robber his loaded pistol. When the other two robbers left, one of the robbers instructed defendant to wait and hold his gun on the people. The other robber dropped the bag of loot and ran out. Defendant remarked to the patrons and victims, "Why don't we have a drink while we are waiting." A police alarm had been given. Defendant hearing a police walkie-talkie placed his shotgun near the door and attempted to leave. Confronted by a police officer, he said to the officer, "They are robbing the place in there." Unfortunately, the police officer discovered that defendant was wearing a holster and this apparently impaired his credibility. Defendant never suggests what there was about his name or fame or skills that made two unknown men decide to kidnap him for the purpose of engaging him in an armed robbery, or by what insanity they placed a loaded pistol and loaded shotgun in his hands, or how they all had the physical stamina to drive around for 12 hours with never an opportunity for defendant to escape. In accordance with the classic pattern, defendant furnished no identifying information as to his cohorts (beyond the gross facts of physical size which were of course obvious to the people in the social club); he did not notice the make or any part of the license plate number of the car in which he had spent the long night and at the trunk of which he stood while his cohorts took the guns from the trunk. I agree with my colleagues that most of the matters they deem errors were indeed errors. But in the face of the admitted facts and the ludicrous claim of duress, I cannot think that it makes any difference. This is truly a case where the evidence of guilt is overwhelming. "Nonconstitutional error * * * is harmless when, given the overwhelming proof of a defendant's guilt, there is no significant probability that the jury would have acquitted the defendant if the error had not been committed" (People v Crimmins, 38 N.Y.2d 407, 412). In this case, given the admitted facts of the defendant's participation in the robbery and the ludicrous defense of duress, there is no significant probability that the jury would have acquitted the defendant if the errors had not been committed. The most substantial error claimed relates to the court's definition of the standard of compulsion that constitutes duress. The court first read the statute, including the proper standard, "the use or threatened imminent use of unlawful physical force upon him [defendant] or a third person, which force or threatened force a person of reasonable firmness in his situation 808*808 would have been unable to resist." (Penal Law, § 40.00, subd 1.) The court then went on to discuss this standard and in the course of that discussion said the compulsion must be "of such a nature as to induce a well-founded fear of impending death or serious physical injury." Although there is arguably some support for this definition in the drafters' notes, I think that statement set an erroneously high standard. But a moment later, the court again summarized the test correctly. "The issue to be determined is whether a person of reasonable firmness, under the identical fact situation as the defendant, would have acted as the defendant acted." Thus the error was perhaps corrected. But in any event, the difference between the statutory definition and the court's gloss on it was immaterial to this case. If defendant's story was believed, it met both tests; if not, it met neither. It was precisely fear of impending death or serious physical injury that defendant was claiming, the belief that his kidnapper was holding a gun in his pocket, the threat that if he did not participate defendant would not leave the bar. Perhaps for this reason, there was no objection to the charge. In these circumstances, we nevertheless have the power to reverse "as a matter of discretion in the interest of justice" (CPL 470.15, subd 6). We should "decline to exercise that power on the present record where the proof overwhelmingly established the guilt of defendant of the crime for which he was convicted" (People v Jones, 32 AD2d 1069, 1070, affd 27 N.Y.2d 501; accord People v Musolino, 54 AD2d 22, 26). If defendant had pointed out the error, the point could have been clarified or corrected. That after all is the point of requiring protest to a ruling at a "time when the court had an opportunity of effectively changing the same." (CPL 470.05, subd 2.) And the verdict would have been the same. Defendant should not be better off because his lawyer failed to object. The other claimed errors are less substantial.

Peter C. Bradstreet for appellant.

John M. Finnerty, District Attorney, for respondent.

Chief Judge BREITEL and Judges JONES, WACHTLER and FUCHSBERG concur with Judge COOKE; Judge GABRIELLI dissents and votes to affirm in a separate opinion in which Judge JASEN concurs.

514*514COOKE, J.

We reverse and dismiss the indictment against defendant; we so hold for the fundamental reason that due process compels it.

This case concerns fortunately rare, and inexplicable, police misconduct. Involved is reprehensible police action,^[*] including violence and deception, culminating in the further deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine, for which he was convicted and sentenced to 15 years to life at Attica. At the time of trial, defendant was in his mid-twenties and was a graduate student and teacher at Penn State University, on the brink of receiving his doctoral degree in plant physiology and biochemistry. He resided at State College, Pennsylvania. Although he admitted to having used three controlled substances on very few occasions, he had no prior criminal record.

The events leading to defendant's conviction trace back to December 5, 1974 when J. D. Breniman, a young man with an unsavory drug history, was arrested by the New York State Police in Steuben County for possession of a controlled substance in the second degree, a class A-2 felony punishable by a 15-year to life term. At the time of his apprehension, Breniman was on bail pending an appeal from a 1973 conviction, based on a guilty plea for possession of a dangerous drug in the fourth degree, for which he had been sentenced to an indeterminate term of zero to three years at the New York Correctional Facility at Attica.

515*515Breniman, who at defendant's trial admitted to being an inveterate user of drugs, including amphetamines, sedatives, hallucinogens, marihuana and heroin, and a seller for profit to maintain his habit, was interviewed after his arrest on December 5, 1974 at the New York State Police substation at Painted Post. As found as a matter of fact by the trial court, during this questioning, an investigator of the New York State Police struck Breniman with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. Breniman testified that this abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, "I [Breniman] may as well forget about it. They would swear that I fell coming in the substation on the steps."

Following his seizure on December 5, 1974, Breniman was held without bail at the Steuben County Jail until December 24, when he was released. By December 23, one of the officers involved in his case had received a lab report showing that the capsules found on Breniman, which were the basis for his class A-2 felony charge and which had been purchased from defendant, were not controlled substances at all. Rather than being amphetamines of a type referred to on the street as "Black Beauties", they were in fact nothing more pernicious than caffeine. However, Breniman was not told of this until some time later, at the trial of this matter — after he had been used by the police as an informant in this case.

Upon the advice of his attorney, and while suffering under the contrived delusion that he was still facing a long prison incarceration if found guilty of the A-2 felony on top of his previous conviction, Breniman agreed to assist the State Police as an informant. Although not specifically promised that his aid to the police would result in a lesser sentence, his attorney advised that this would provide him with a bargaining position with respect to the charges against him. The violence and threats of the investigator were not the reason for his co-operation, so he stated. Nevertheless, the trial court found that Breniman testified he would not have aided the police were it not for the fact that they deceived him by not 516*516 revealing that the charges relating to the December 5 arrest would not stand up in court.

Breniman began his informant activities by telephoning various persons indiscriminately for the purpose of setting up drug sales in which the police would arrest the sellers. He made "collect" calls and one of the individuals contacted was defendant, whom he had known for two years through a mutual friend at State College. Defendant's version of the conversations is that Breniman cried and sobbed on the phone, relating that he was facing 15 years to life in Attica, that his parents had effectively cast him from the family home, that he was running out of friends, and that he was looking for ways to make money to hire a decent lawyer. Breniman's recollection was that he had not made the remarks in the manner described by defendant, but he otherwise corroborated defendant's version. He admitted telling defendant that he was in trouble, that the police had beaten him, that he feared going to Attica, and that he needed a "score" or "deal" so that he could hire an attorney and "make" bail.

Between December 24, 1974 and January 4, 1975, Breniman made seven phone calls to defendant before finally arranging a sale. Initially, he sought to buy heroin, but defendant flatly refused. As to cocaine, defendant tried to put him off by saying that there was nothing worthwhile, but Breniman persisted in his efforts to get defendant to make a sale.

At the time of Breniman's calls, defendant was living in an apartment in State College with Denise Marcon, a legal secretary, who admitted that she was a daily user of drugs including marihuana, cocaine, LSD, amphetamines and depressants. She testified that in October and November of 1974 defendant had sold one-gram quantities of cocaine which he kept at the apartment, and this was confirmed by Breniman who alleged that he made two purchases of small amounts of cocaine from defendant during these months. Although Marcon had not herself spoken to Breniman about a sale, defendant discussed with her at length Breniman's request.

Defendant's studies and his teaching responsibilities required him to work 12 to 14 hours a day. He did not have access to someone who could supply him with the cocaine — the two ounces worth $3,800 which Breniman was seeking — but Denise Marcon did. She called a girl friend who gave her a number at which to contact a man known as "Zorch". Although 517*517 Marcon testified that defendant indicated that a sale of this magnitude to Breniman was worth $1,000 to them, she also confirmed that a desire to help Breniman was defendant's motivation for entering into the transaction.

The sale was scheduled for January 4, 1975. The State Police claimed no knowledge of Breniman's prior negotiations, but had spoken to Breniman concerning the sale in general. The investigator, who had previously struck Breniman, detailed the specifications to his victim-turned-informant. Breniman said he might be able to get an ounce of cocaine, but the investigator told him to get two because it was his experience that one never gets exactly what is asked for and he wanted a sale of at least one ounce to obtain a conviction for a higher grade of crime. Defendant feared New York's drug laws and did not want to enter the State, but the investigator instructed Breniman that the transaction must take place in New York where he had authority to make an arrest.

To cause defendant to sell drugs in this State, Breniman cleverly kept changing the destination, progressively northward, culminating in an arrangement by which defendant would make a three- or four-hour trip to meet at a place near the Pennsylvania-New York border, at a spot where it would be difficult for defendant to ascertain his location. Initially, defendant agreed to meet in Williamsport, Pennsylvania, one and a half hours distant from State College. Breniman then succeeded in inducing defendant to commit himself to journey to Mansfield, a point near Williamsport and also in the Quaker State. Finally, he acceded to drive another 15 miles north from Mansfield to Lawrenceville, Pennsylvania, which is just south of the State boundary.

The meeting place finally settled upon was the Whiffle Tree Bar, which Breniman told defendant was in Lawrenceville. What Breniman did know, and defendant did not, was that the bar was actually in the Town of Lindley, Steuben County, New York. Traveling north on Route 15 in Pennsylvania toward Lawrenceville, the only clear indication a motorist might have that he is leaving Pennsylvania is a sign adjacent to the southerly approach of a bridge spanning the Cowanesque River and welcoming the traveler to New York State. Actually, the State line is several hundred yards southerly of the bridge and is designated by a stone marker, which at the time of defendant's visit had crumbled and was obscured in the vegetation alongside the road. The Whiffle Tree Bar is 518*518 situate between the hidden stone marker and the bridge sign and thus is located in the Town of Lindley in New York State, rather than in Lawrenceville, Pennsylvania, as defendant had been led to believe. Although Breniman devised the scheme for bringing defendant into this State, it was the State Police investigator who independently determined that the proposed location was within his jurisdiction.

Defendant engaged in a rather elaborate method of delivering the cocaine, including an arrangement to have Denise Marcon drive along in a separate vehicle conveying the contraband and the toting beneath his shirt of a plastic bag containing a nonnarcotic substance with a cocaine appearance to be turned over in the event of a "rip-off". He testified these precautions were suggested by Zorch, the supplier. The Appellate Division majority and trial court inferred that defendant's use of these methods showed he was not unskilled but was knowledgeable and wary. This evaluation is belied by the ease with which he was enticed into New York.

Defendant's precautions notwithstanding, he was arrested in the course of the transaction outside of the Whiffle Tree Bar. Breniman was called as a material witness. So was defendant's former paramour, Denise Marcon, who testified for the prosecution in return for a promise of life-time probation for her part in the sale.

Following a trial, without a jury, at which defendant raised the defense of entrapment and urged that his due process rights were violated, the County Judge found him guilty of criminal sale of a controlled substance in the first degree in violation of section 220.43 of the Penal Law, and imposed sentence. The Appellate Division affirmed, but two Justices vigorously dissented. For reasons which follow, we reverse and dismiss the indictment.

In holding that this prosecution should be barred, we find it unnecessary to examine in detail the question of whether this defendant was predisposed to commit the crime (see Penal Law, § 40.05). County Court found as a matter of law and fact that defendant did not prove by a preponderance of the evidence the defense of entrapment and the Appellate Division majority in turn held that the record amply supports the determination that defendant was predisposed to commit the offense for which he was charged. Even though defendant did not sustain his burden as to this affirmative defense (see Penal Law, § 25.00, subd 2), the police conduct, when tested by due 519*519 process standards, was so egregious and deprivative as to impose upon us an obligation to dismiss.

Recent cases show greater recognition of due process as a check on police misconduct. In United States v Russell (411 US 423), based on a finding that defendant was predisposed to commit the crime, the Supreme Court rejected an entrapment defense even though a government agent supplied him with a chemical ingredient used by him to manufacture drugs illegally. However, while adhering to the test enunciated in Sorrells v United States (287 US 435), the court envisioned: "[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165" (411 US, at pp 431-432). In a later case, however, the meaning of Russell divided the majority of the court, which upheld a conviction where the government supplied contraband to a defendant later prosecuted for trafficking in the same (Hampton v United States, 425 US 484). Referring to Russell, the plurality stated: "We ruled out the possibility that the defense of entrapment could ever be based upon governmental misconduct in a case, such as this one, where the predisposition of the defendant to commit the crime was established" (id., at pp 488-489). Two Justices concurred, on the basis that they were "unwilling to join the plurality in concluding that, no matter what the circumstances, neither due process principles nor our supervisory power could support a bar to conviction in any case where the Government is able to prove predisposition" (POWELL, J., with whom BLACKMUN, J., joined, concurring in judgment, 425 US, at p 495). Therefore, in light of the concurrence and the dissent of three Justices in Hampton (see 425 US, at pp 495-500), a dismissal on due process grounds in the context of an insufficient entrapment defense has not been ruled out by the Supreme Court.

Of course, under our own State due process clause (NY State Const, art I, § 6), this court may impose higher standards than those held to be necessary by the Supreme Court under the corresponding Federal constitutional provision (see Oregon v Hass, 420 US 714, 719; see, generally, Brennan, State Constitutions and the Protections of Individual Rights, 90 Harv L Rev 489). However, the views expressed by some members of the Supreme Court, as well as those of other 520*520courts and respected commentators, illustrate and articulate the need for a due process analysis of the boundaries of permissible police conduct. We therefore decide this case under our own State Constitution.

It has been said that "`due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances" (Anti-Fascist Committee v McGrath, 341 US 123, 162 [FRANKFURTER, J., concurring]). It embraces fundamental rights and immutable principles of justice (People v Terra, 303 N.Y. 332, 334) and use of the term is but another way of saying that every person's right to life, liberty and property is to be accorded the shield of inherent and fundamental principles of justice (see Ives v South Buffalo Ry. Co., 201 N.Y. 271, 293, 295-296; see, also, People v Yamin, 45 Misc 2d 407, 417). Due process of law guarantees respect for personal immunities "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (Snyder v Massachusetts, 291 US 97, 105 [CARDOZO, J.]). It imposes upon courts the duty to foster "`that fundamental fairness essential to the very concept of justice'" (People v Leyra, 302 N.Y. 353, 364). Although an application of due process to outrageous conduct of law enforcement agents such as to warrant a restraint of the government from invoking judicial procedures in obtaining a conviction has evolved more recently, the doctrine is an ancient one traceable to Magna Charta and has been "so often judicially defined that there can be no misunderstanding as to [its] meaning" (see Ives v South Buffalo Ry. Co., 201 N.Y. 271, 292-293, supra).

Where the police obtain evidence by brutalizing a defendant, a conviction resulting from such methods offends due process (see, e.g., Rochin v California, 342 US 165, supra). And, as noted, even where a defense of entrapment is not made out because of the predisposition of the defendant to commit the crime, police misconduct may warrant dismissal on due process grounds (see United States v Russell, 411 US 423, 431-432, supra; see, also, Hampton v United States, 425 US 484, 495, supra [POWELL, J., concurring]; cf. 425 US, at pp 495-500 [BRENNAN, J., dissenting]). Moreover, the type of conduct which mandates the barring of prosecution ought not to be limited to situations involving police brutality (see 87 Harv L Rev 243, 252; see, also, Cox v Louisiana, 379 US 559; Raley v Ohio, 360 US 423, 439; cf. United States v Archer, 486 F.2d 670). To prevent improper and unwarranted police solicitation 521*521 of crime, there is a need for courts to recognize and to uphold principles of due process (see United States v Lue, 498 F.2d 531; see, also, Comment, Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L Rev 655; Comment, Defense of Entrapment: Next Move — Due Process?, 1971 Utah L Rev 266; cf. People v Joyce, 47 AD2d 562, 564). This is a case that demands the application of these principles.

While due process is a flexible doctrine, certain types of police action manifest a disregard for cherished principles of law and order. Upon an inquiry to determine whether due process principles have been transgressed in a particular factual frame there is no precise line of demarcation or calibrated measuring rod with a mathematical solution. Each instance in which a deprivation is asserted requires its own testing in the light of fundamental and necessarily general but pliant postulates. All components of the complained of conduct must be scrutinized but certain aspects of the action are likely to be indicative (see People v Taranovich, 37 N.Y.2d 442, 445; cf. Sortino v Fisher, 20 AD2d 25, 28).

Illustrative of factors to be considered are: (1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity (compare Greene v United States, 454 F.2d 783, with United States v Russell, 411 US 423, supra); (2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice (see United States v Archer, 486 F.2d 670, supra; cf. Rochin v California, 342 US 165, supra); (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness (see Schecter, Police Procedure and the Accusatorial Principle, 3 Crim L Bull 521, 527); and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace. No one of these submitted factors is in itself determinative but each should be viewed in combination with all pertinent aspects and in the context of proper law enforcement objectives — the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness. As a bare minimum, there should be a purposeful eschewal of illegality or egregious foul 522*522 play. A prosecution conceived in or nurtured by such conduct, as exemplified in these guidelines, so as to cast aside and mock "that fundamental fairness essential to the very concept of justice" should be forbidden under traditional due process principles.

Applying these factors to this case, first we find the manufacture and creation of crime. At most, and over his denial, the record shows that defendant had made small and rather casual sales of drugs. Indeed, it was established that he did not himself have access to the quantity of drugs sought by Breniman and for which he was arrested but was only directed to the source by one who testified against him. Doubtless, a crime of this magnitude would not have occurred without active and insistent encouragement and instigation by the police and their agent.

Turning to the second component, serious police misconduct repugnant to a sense of justice is revealed. Initially, there was conceded abuse of Breniman at the substation. While this harm was visited upon a third party, it cannot be overlooked, for to do so would be to accept police brutality as long as it was not pointed directly at defendant himself. Not only does the end not justify the means, but one should not be permitted to accomplish by indirection that which is prohibited by direction. More importantly, these actions set the pattern for further disregard of Breniman's rights in failing to reveal to him that the material he possessed on December 5 would not subject him to criminal charges (cf. Brady v Maryland, 373 US 83). This was deceptive, dishonest and improper; it displayed a lawless attitude and, if countenanced, would suggest that the police are not bound by traditional notions of justice and fair play.

The third factor embraces a persistent effort to overcome defendant's reluctance to commit the crime. Breniman, as informant, played upon defendant's sympathy, their past relationship, and persevered in his requests despite defendant's obvious unwillingness. Moreover, even if defendant was motivated by expectation of profit, the lure of exorbitant gain is not a proper basis to create crime for the purpose of obtaining convictions. With resistance so undermined, even a person not predisposed to crime may be enticed to violate the law.

Finally, there is the overriding police desire for a conviction of any individual. In this respect, one is immediately shocked by an incredible geographical shell game — a deceit which 523*523 effected defendant's unknowing and unintended passage across the border into this State. While this outright fraud was ostensibly accomplished by an informant, he was acting at the behest of the police, who emphasized that the sale must take place in New York, and thus are chargeable with the tactics employed by their agent (see Johnson v United States, 317 F.2d 127, 128; State v Stein, 70 NJ 369). Of course, in a particular case it may be necessary for the police to apprehend a criminal who operates outside our borders, but this is not such a situation. There is no suggestion that defendant had previously sold great quantities of cocaine. In short, the police wanted a conviction and simply set two specifications — a large amount of the substance to denote a high grade of crime and a situs of sale in New York. There was no indication of any desire to prevent crime by cutting off the source and, thus, the conviction obtained became little more than a statistic.

In sum, this case exposes the ugliness of police brutality, upon which was imposed a cunning subterfuge employed to enlist the services of an informant who, deceived into thinking he was facing a stiff prison sentence, desperately sought out any individual he could to satisfy the police thirst for a conviction, even of a resident of another State possessed of no intention to enter our confines. Separately considered, the items of conduct may not rise to a level justifying dismissal but viewed in totality they reveal a brazen and continuing pattern in disregard of fundamental rights.

As expected, the argument is advanced that the police are to be condemned, but the criminal should still be punished. Indeed, defendant's conviction was allowed despite the castigation of police conduct as "improper" and "reprehensible". Whether conduct is so outrageous is a question of degree to be answered by sound judgment, but "there comes a time when enough is more than enough — it is just too much" (Williamson v United States, 311 F.2d 441, 445 [BROWN, J., concurring]). In this case, the police have simply gone too far. This court would be paying mere lip service to the principle of due process if it sanctioned the continuance of a prosecution in the face of the revelations of this record.

Certain comments in the dissent warrant discussion. Although stated elsewhere in this opinion, it appears to be necessary to emphasize our recognition that defendant has not established the defense of entrapment. That defense is not the 524*524 issue in this case and no attempt has been made to interfere with or disturb the fact-finding powers of other courts. Analysis is not advanced by disputes over the extent of defendant's predisposition. To be sure, he was predisposed to commit the crime, and for that reason the defense of entrapment failed. However, the proper focus is on whether, regardless of defendant's inclinations or criminal intent, due process mandates dismissal of his indictment.

Presented for our legal evaluation are undisputed facts and findings of the trial court that the police engaged in serious misconduct, which even the dissent characterizes as "devious" and "inexcusable" (dissent, at p 527). The dissent would overlook this conduct because the defendant was not "a direct victim of police malfeasance" (at p 527). The point is, however, that while the informant was the victim of the trickery and beating, these actions were indeed directed at defendant. This misbehavior set the pattern for an investigation in which the informant was maliciously used as a pawn to obtain a conviction of any individual. The dissent apparently finds nothing wrong with this technique. Tactics here employed, if not checked, are certain to encourage lawlessness and destroy cherished freedoms. A defendant charged with the most heinous of crimes is still entitled to the fundamental fairness we conceive under the notion of due process.

The undisputed facts and the express findings of the trial court provide the pivot on which this case turns and the basis from which this opinion is reasoned. A standard must be set somewhere and the line should be drawn here.

To be sure, "[c]riminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer" (Sherman v United States, 356 US 369, 372). However, while Justice FRANKFURTER'S view was not adopted in the analysis of the entrapment defense, we now apply it in a due process context, thereby affirming this fundamental principle: "No matter what the defendant's past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society" (id., 356 US, at pp 369, 382-383, FRANKFURTER, J., concurring]). There may be those who fear that dismissal of convictions on due process grounds may portend an unmanageable subjectivity. Such apprehension is unjustified for courts by their very nature are constantly called upon to 525*525 make judgments and, though differences of opinion often surround human institutions, this is the nature of the judicial process (see Rochin v California, 342 US 165, 170-171, supra). Circumscribed by a sizeable body of constitutional and common law pronounced and steeped in traditions of Anglo-Saxon jurisprudence, due process is our most fundamental principle of law and must be applied here. The administration of justice must be above reproach (People v Savvides, 1 N.Y.2d 554, 556). We therefore hold that this prosecution should be barred.

Accordingly, the order of the Appellate Division should be reversed, and the indictment dismissed.

GABRIELLI, J. (dissenting).

I cannot agree that due process either as urged by the defendant or as expostulated by the majority mandates a reversal of defendant's conviction and a dismissal of the charges against him. Accordingly, I vote to affirm the order appealed from and sustain the conviction.

While it may well be that under certain egregious circumstances due process might mandate dismissal in an entrapment situation although the defendant is in fact predisposed to commit the crime of which he stands accused (but cf. United States v Russell, 411 US 423), this is not that case.^[*] My disagreement with the majority today lies more in the court's unwarranted assessment of the facts than in its enunciation of basic principles. The defendant has been convicted, and that conviction has been affirmed by the Appellate Division. The testimony at trial, both as to defendant's prior involvement in the drug subculture, and as to the details of the sale with respect to which he was convicted, was conflicting to say the least. The defendant, according to his own testimony which has been implicitly, and improperly, credited by the majority of this court, was a veritable innocent: an occasional user of marihuana, who agreed to sell cocaine in this case only because he wanted to help his friend, Breniman (whom he had met casually only three times before); a man 526*526 who did not even know that the woman he was living with was a regular drug user.

Other witnesses, however, describe a completely different man. Breniman, the police informant, testified that he had on three prior occasions purchased varying amounts of marihuana, cocaine, and phenocyclidine from defendant. Denise Marcon, who shared an apartment with defendant, testified that defendant had been involved in several cocaine sales in the two or three months immediately preceding his arrest. She declared that on at least five occasions cocaine had been delivered to their apartment; that defendant took that cocaine to his laboratory, where he weighed it and broke it down into grams for easier sale; that he subsequently delivered it to several different people. As a perusal of the trial transcript indicates, someone at defendant's trial took certain liberties with the truth. As we have stated on many prior occasions, the trial court was in the best position to assess the testimony, and that court believed the prosecution witnesses; indeed the experienced Trial Judge concluded that some of defendant's testimony was incredible. These conclusions were not disturbed by the Appellate Division, and I cannot agree that it is proper for this court to supplant the conclusions of the original trier of fact with its own speculations absent clear error as a matter of law (People v Erwin, 42 N.Y.2d 1064, 1066; People v Richardson, 41 N.Y.2d 886, 887; see People v Gruttola, 43 N.Y.2d 116, 122-123).

The majority has wisely chosen not to decide this case on the statutory entrapment defense issue, since a reversal on that ground would require that the court explicitly disturb the factual finding that defendant was predisposed to commit the crime of which he stands convicted. Unfortunately, it has fallen into the same difficulty in its due process analysis, for although the court admits that the defendant was in fact predisposed to commit the crime, it nonetheless then finds itself in the troublesome position of having to show that defendant's character is such that he would not have committed this crime had he not been lured into it by Breniman. The distinction is tenuous at best. As I have noted, it is not for this court to set aside the factual determination of credibility made by the lower courts. Indeed, the majority concedes that defendant was previously involved in drug sales, but dismisses that impertinent fact by characterizing those sales as at most "small and rather casual sales". Whatever the wisdom of our 527*527 drug laws, it is for the courts to apply them, not demean them. Although the amount of drugs involved in a sale may lessen the degree of liability which attaches, the sale itself remains a criminal act, be it casual or the result of ten years' planning. In the present case, at any rate, the testimony of Marcon tends to belie the lack of professionalism implied by the majority. I find it difficult to reconcile this evidence with the portrait of entrapped innocence drawn by the court.

Turning then to the police misbehavior which the majority posits as proof that defendant has been deprived of his basic right to fair treatment at the hands of the government, I agree, of course, that the beating of Breniman was inexcusable, as were the devious means used to convince him to work for the police. These actions, however, had no significant connection with defendant, and in no way violated any of defendant's constitutional rights (cf. People v Cefaro, 21 N.Y.2d 252; People v Hansen, 38 N.Y.2d 17, 22). While police misbehavior is not to be condoned, neither should the punishment for such activity be lightly visited upon society as a whole (see Matter of Nigrone v Murtagh, 46 AD2d 343, 349, affd 36 N.Y.2d 421). Had defendant been a direct victim of police malfeasance, the situation would be quite different. As it is, however, the beating and the trickery were directed solely toward Breniman. To free this defendant, a confirmed drug dealer, simply because the police had mistreated the man who was later to inform on him, makes as little sense as would invalidating all arrests made by a policeman who has mistreated one suspect.

Apart from the mistreatment of Breniman, there has been no other police misbehavior shown in this case. The majority would castigate the police for the "deceitful luring of a Pennsylvania resident into New York solely to make a sale of cocaine". I do not agree that the actions which are so characterized constitute misconduct under the facts of this case. Proper analysis is furthered by separate consideration of the two discrete aspects of this alleged police misbehavior; the "luring" into New York, and the "entrapment" into the sale in the first place. Assuming that there was no real element of entrapment in this case, as I will discuss below, then surely there is no wrong in "luring" into the confines of New York State a man who would breach our laws with impunity from the far side of the border. Are not the people of this State entitled to some protection from criminal conduct outside the 528*528 State which is intended to have a harmful effect inside the State? (See, generally, CPL 20.20, subd 2.) Defendant knew that Breniman intended to resell the cocaine in New York, and he had absolutely no compunction about that. His avowed reason for not wishing to enter New York had nothing to do with any desire not to commit a crime, for he had already agreed to do that by agreeing to sell the cocaine to Breniman. Rather, he did not wish to complete the sale in New York because he was afraid of our strict drug laws. In a situation such as this, involving someone who is selling contraband with the knowledge that it will be resold in New York, I see no problem in "luring" that person into our State for the purpose of obtaining criminal jurisdiction over him.

With respect to the nature of the incidents and communications which led to the sale itself, my differences with the majority are in large part based on our interpretations of the record. I find myself compelled to accept that version of the facts which has been accepted by the trial court and left undisturbed by the Appellate Division. So should the majority. As was discussed above, the testimony of Breniman and Marcon, the two other participants in the sale, indicates that the defendant was deeply involved in the drug subculture, and was in fact a seller of cocaine on a fairly regular basis. He had sold cocaine, as well as other illicit drugs, to Breniman on several prior occasions, and obviously had no compunctions about entering into subsequent transactions with Breniman. Although he did not wish to become involved in heroin, he clearly was already involved in the sale of cocaine.

The majority emphasizes that it took some time and several phone calls to set up the deal, and suggests that this is indicative of a disinclination upon the part of defendant to enter into the sale. I would note that the delay was due to the fact that these events transpired over the Christmas-New Year recess, during which time the campus was empty and defendant's normal source of cocaine doubtless was temporarily curtailed. Thus, he was forced to delay until he could locate a new supply, which he eventually did, purchasing the drugs from a friend of a friend of Marcon.

In light of defendant's prior sales, both to Breniman and to others, it is clear that this was not the type of manufactured crime which would never have taken place had it not been for the police, and with respect to which society might not wish to impose criminal liability. This is simply not a case in which 529*529 an innocent man is seduced into criminal activity by police agents solely in order to obtain another conviction. Any reluctance upon defendant's part came not from a disinclination to sell drugs, but from a temporary disruption of his supply lines and from a disinclination to travel into this State to complete the sale. It is simply not the type of reluctance relevant to either the statutory defense of entrapment or a due process based quasi-entrapment doctrine.

In conclusion, I would note that the police conduct in this case is much less offensive than that in Hampton v United States (425 US 484). There, the Supreme Court held that due process was not violated, and a prima facie entrapment defense was not available to a defendant who was predisposed to commit the crime, in a situation in which defendant alleged that not only had a police agent talked him into becoming involved in a heroin sale, but that it had in fact been the police agent who supplied the heroin.

Accordingly, I am compelled to vote to affirm the order appealed from.

Order reversed, etc.

[*] The majority and the dissenters at the Appellate Division both characterized the police conduct as "reprehensible" (56 AD2d, at pp 226, 231).

[*] There was no entrapment here, and the majority acknowledges that the principles of that defense are not here involved (pp 518, 519). Any discussion of entrapment as a defense by the majority as it applies to this case is inappropriate. I must address the subject only because the majority expounds upon it and then concludes that the trial court held as a matter of law and fact that entrapment was not here present, a finding that was affirmed by the Appellate Division.

It is emphasized at this point that both courts found that the evidence showed that the defendant, by proof of numerous previous drug sales and violations, "was predisposed to commit the offense for which he was charged" (p 518).

Joseph A. Barrette, Syracuse, and Robert H. Whorf for appellant.

William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gordon J. Cuffy, Gary T. Kelder and Loretta R. Kilpatrick of counsel), for respondent.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH and LEVINE concur; Judge HANCOCK, JR., taking no part.

870*870MEMORANDUM.

The order of the County Court should be affirmed.

Defendant was convicted in Syracuse City Court of patronizing a prostitute in the fourth degree (Penal Law § 230.03). County Court, Onondaga County, affirmed the conviction. Defendant's principal argument on appeal to this Court is that it was reversible error for the Trial Judge to deny his request for a jury charge on the affirmative defense of entrapment (Penal Law § 40.05). We affirm, finding no evidentiary basis on this record to warrant the requested instruction.

A trial court must charge entrapment on a defendant's 871*871 request where the evidence adduced at trial, when viewed in the light most favorable to the defendant, reasonably and sufficiently supports the defense (see, People v Butts, 72 N.Y.2d 746, 748-750; People v Watts, 57 N.Y.2d 299, 301). Defendant bore the burden of establishing entrapment by a preponderance of the evidence (Penal Law § 25.00 [2]), that is, to demonstrate that: (1) he was actively induced or encouraged to commit the offense by a public official; and (2) such inducement or encouragement created a "substantial risk" that the offense would be committed by defendant who was not otherwise disposed to commit it (Penal Law § 40.05; People v Butts, supra, at 750-751; People v Alwadish, 67 N.Y.2d 973, 974).

There was trial testimony adduced by the People that at approximately 10:45 P.M. on May 22, 1991 a male undercover police sergeant dressed as a female was standing near a street corner in the City of Syracuse when defendant pulled over to the adjacent curb in front of him. The undercover officer testified that he approached the front passenger window of the car and asked defendant if he was looking for a date; defendant said he was; the officer asked defendant how much he was spending; defendant said "20 or 25"; the officer asked defendant if he wanted oral sodomy for 25, and defendant said yes. He directed defendant to drive around the corner, which defendant did, and back-up police units arrested him. An undercover police lieutenant positioned in a nearby unmarked surveillance vehicle overheard the conversation and corroborated its contents. The undercover officers and the defendant agreed that the conversation lasted approximately 15 to 30 seconds.

By contrast, defendant testified that while driving to pick up food he stopped at a stop sign at the intersection in question, where a man dressed as a woman approached his vehicle, asked him what he was looking for, and offered to perform oral sodomy for money. Defendant testified he did not respond to the offer. He denied ever agreeing to exchange money for sex or voluntarily pulling over when he turned the corner.

Under no reasonable view of this evidence could a jury have found that the statutory requirements of an entrapment affirmative defense were satisfied. Defendant's testimony denying that he committed the proscribed conduct does not alone support or defeat the requested charge (see, People v Butts, supra, at 748-750; Mathews v United States, 485 US 58, 62). The testimony of the undercover officers demonstrates that 872*872 they merely afforded defendant an opportunity to commit the offense, which standing alone is insufficient to warrant an entrapment charge (see, Penal Law § 40.05; People v Thompson, 47 N.Y.2d 940, 941; see also, Mathews v United States, supra, at 66). Merely asking a defendant to commit a crime is not such inducement or encouragement as to constitute entrapment.

Defendant's remaining contentions are without merit.

Order affirmed, in a memorandum.

Concur — Carro, J. P., Milonas, Rosenberger, Ellerin and Wallach, JJ.

The main issues to be determined by the jury on the trial of this indictment were raised by defendant's affirmative defense of entrapment (Penal Law § 40.05; People v McGee, 49 N.Y.2d 48, cert denied 446 US 942), as to which he bore the burden of proof by a preponderance of the evidence (Penal Law § 25.00 [2]).

To establish the defense of entrapment a defendant must prove two separate elements: first, that the police or other public servant actively induced or encouraged the commission of a crime (People v Thompson, 47 N.Y.2d 940; People v Sundholm, 58 AD2d 224, 227); second, that the inducements or encouragements used by the officer created a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. On the second element of the defense (absence of predisposition to commit the crime) the trial court instructed the jury in its main charge as follows: "The purpose of the defense of entrapment is to prevent the conviction of persons who, although not criminals or predisposed to become criminals nevertheless commit a crime because induced or encouraged to do so by pressure exerted by the police."

This instruction could only leave the jury with the impression that the entrapment defense was only available to "non-criminals", an impression that could have only been reenforced by a further instruction given by the court in response to a jury inquiry as follows: "Having a predisposition can be compared to having a fertile soil ready for seed to be planted."

The combined impact of these instructions was highly prejudicial to defendant and deprived him of a fair trial, inasmuch as the prosecutor stressed both during trial and summation that defendant was a "successful" pimp and parole violator who would therefore be predisposed to bribe his way out of 351*351 trouble. Such proof of criminality was, of course, competent on the predisposition issue raised by the entrapment defense (People v Calvano, 30 N.Y.2d 199, 205), but defendant's prior and present criminal life was only one of several factors that the jury was bound to weigh. The flaw in the cited instructions was, essentially, to strip defendant of the benefit of the defense as a matter of law. On the contrary, here a fair jury question was presented. This case is similar to People v Yore (36 AD2d 818), where a lawyer was tried for payment of a $75 bribe to a police officer witness. The trial court charged that the availability of the entrapment defense was to discourage the "use of overzealous methods of law enforcement officials to trap the unwary innocent." On appeal, the Second Department viewed this formulation as erroneous and observed (supra): "The defense is available to all defendants and is not limited to the `unwary innocent'".

We are aware that defendant took no exception to either the main or supplemental charge, but we are compelled to reverse here in the interest of justice. A tape recording of a conversation between defendant and the police witnesses, received in evidence, tended strongly to support defendant's contention that a monetary bribe was actively induced and encouraged by the police, and that defendant's initial reluctance to offer more than his services as an informer was overborne by police pressure. While the police conduct here did not reach an unacceptable level as a matter of law (cf., People v Isaacson, 44 N.Y.2d 511), this was a close case where erroneous jury instructions could have unfairly tipped the scales against defendant.

Accordingly, we reverse the conviction and remand for a new trial.