Depending on the facts and circumstances, gambling in New York, outside of Native American Reservations and the horse tracks, is an illegal enterprise. Unlike Las Vegas, gambling in New York City or elsewhere in the State of New York can land you in jail and the winner of a criminal record. New York is no stranger to organized gambling schemes, illegal "bookies" taking bets, or underground gambling enterprises. As a New York criminal lawyer representing clients in Manhattan, Queens, Westchester and the surrounding boroughs and counties, I know that while gambling offenses are not as common as many other crimes, prosecutors and police are constantly on the lookout for and target gambling offenders. Today I want to examine a recent Bronx County criminal case involving the violation of New York gambling laws: Possession of Gambling Records in the Second Degree, pursuant to New York Penal Law 225.15(2).
Under NY PL 225.15(2) a person is guilty of Possession of Gambling Records in the Second Degree when, with knowledge of the contents or nature thereof, he/she possesses any writing, paper, instrument or article of a kind commonly used in the operation, promotion or playing of a lottery or policy scheme or enterprise. Possession of Gambling Records is a class "A" misdemeanor, punishable by up to one year in jail and a fine. Remember, even without ever stepping into jail as a part of a sentence, Possession of Gambling Records is a crime that will stay on your permanent. Now, if the records are of the kind used in a bookmaking scheme or enterprise and total more than five thousand dollars the charge escalates to a much more dire case. That is, Possession of Gambling Records in the First Degree, pursuant to New York Penal Law 225.20, is a felony. While the misdemeanor variety of gambling crimes is punishable by up to one year in jail, the felony variety is punishable by up to one and one third to four years in state prison.
With the background and foundation of New York gambling crimes out of the way, let's address the recent court decision from the Bronx. In People v. Jose Garcia, 2011BX063385, NYLJ 1202541704022, at *1 (Crim., BX, Decided January 30, 2012), the defendant was charged with the Possession of Gambling Records in the Second Degree, in violation of Penal Law 225.15(2). The arresting officer found a Dominican wager scheme slip in the defendants front pants pocket, and she stated that based on her training and experience in the recognition of gambling records etc., the items taken from Mr. Garcia were wagers for a Dominican lottery that are commonly used in the playing of a lottery or policy scheme or enterprise. Interestingly, within NY P.L. 225.15(2) there is an affirmative defense if "the writing, paper, instrument or article possessed by the defendant constituted, reflected or represented plays, bets or chances of the defendant himself in a number not exceeding ten." In other words, if the gambling records are for your own bets/games than you cannot be prosecuted for this particular crime.
Mr. Garcia argued that the accusatory instrument was insufficient and thus the case should be dismissed. [Legal Note: The accusatory instrument lays out what the charges are with the facts (as alleged by the People) of the incident that are usually confirmed by a victim or arresting officer. Essentially it is the document containing the basics which are presented at arraignment. The facts alleged must show each and every element of the crime.] Garcia's lawyer contended that the factual allegations in the accusatory instrument did not negate the exception/defense written in the statute. That is, the allegations did not indicate that the one wager slip Mr. Garcia possessed represented something more than his own "plays, bets or chances."
The Garcia court found for the defendant and dismissed the charges. They ruled that because the exception/defense is clearly written in the language of the statute the accusatory instrument used at arraignment must state facts that tend to disprove the exception. In other words, the prosecution needed to present more information/details in the complaint that addressed why the wager slip was not just for Mr. Garcia's bets.
It is important to note the main, unique fact here that made all the difference for Jose Garcia. Most defenses are not written into a statute. In those instances the accusatory instrument must only present factual allegations which may tend to prove each and every element of the crime. However, Possession of Gambling Records in the Second Degree is fairly unique, because the statute- NY PL 225.15(2)- actually lays out an exception to the law itself. Therefore, the exception- that the gambling records were for personal use- is sort of like another element which the People themselves must prove. Luckily for Mr. Garcia the arresting officer's "factual allegations" did not address whether the bets were for Garcia's use only.
Whether the case above is applicable in your arrest for Second Degree Possession of Gambling Records is something to discuss with your criminal lawyer. Did prosecutors satisfy each element of the crime as set forth in the statue? Do you have a basis for dismissal? An educated review of the complaint or information will likely answer this question.
To further educate yourself on New York crimes and laws involving gambling and other statutes, review the Crotty Saland PC websites and blogs below.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys. The New York criminal lawyers at Crotty Saland PC represent clients in gambling crimes and related offenses in New York City and the region.