Every which way you look, one prosecutorial agency is enforcing a Federal or State law that forbids, prevents or punishes illegal gambling. It may be a lucrative business if you don’t get caught, but as soon as you do it is not uncommon to find yourself charged with Money Laundering and Enterprise Corruption crimes that can take a relatively lesser misdemeanor or felony to a class B felony punishable by up to eight and one third to twenty-five years in prison. While this blog entry will not address those more significant collateral crimes associated with gambling rings that touch New York (even if the accused reside elsewhere), this article will review the critical difference between being a “player” and “promoter” when charged with New York Penal Law 225.30, Possession of a Gambling Device and how you and your criminal defense attorney may chose to attack the gambling related charges.
Before analyzing People v. Buckhannon, 2015BX013607, NYLJ 1202738724452, at *1 (Crim., BX, Decided September 8, 2015), let’s take a look at the crime of Possession of a Gambling Device, NY PL 225.30(a)(2). Pursuant to this subsection, in pertinent part, you are guilty of Possession of a Gambling Device when with knowledge of the character thereof, you possess any gambling device, believing that the same is to be used in the advancement of unlawful gambling activity.
With the statute behind us, the complaint (information) in Buckhannon alleged that the defendant was in a circle with others throwing down money into the middle, rolling dice and collecting that money. In challenging the information, the defendant asserted that the facts set forth did not identify who was throwing the dice and money and who was collecting the same. Another way to examine this was who was the promoter and who was the player?
In resolving the above question, the court first looked to other statutes defining New York gambling crimes.
New York Penal Law 225.00 (7) defines a “gambling device” “as any device, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity…”. Further, New York Penal Law 225.35 (1) provides: “Proof of possession of any gambling device…is presumptive evidence of possession thereof with knowledge of its character or contents.” Taking it back to Possession of a Gambling Device, prosecutors must establish (1) that the defendant possessed, (2) a gambling device, (3) with knowledge of its’ character, (4) while believing that the device was to be used in the advancement of unlawful gambling activity. Taking this one step further, even if elements one through three are sufficient, what is the evidence of advancement from unlawful gambling activity?
In pertinent part, New York Penal Law 225.00 (4) defines “gambling activity” as conduct, other than that as a player, where one materially aids any form of gambling activity. Because definitions and subsections never seem to end in the world of statutory construction and our laws, the next and final step is defining what it means to be a “player” in the eyes of New York gambling crimes statutes. New York Penal Law 225.00 (3) establishes a “player” as a “person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity.”
Bringing these legal terms back to the current case (finally!), the court dismissed the accusatory instrument against the defendant for the failure of the prosecution to establish element of advancing unlawful gambling activity. Why? “Gambling activity” excludes a player and, according to the facts alleged in this information, a bunch of people playing dice in a circle where one person collects the money is not enough to conclude that all of the individuals were nothing more than players.
Remember, while there is a critical difference between a “promoter” and a “player”, the prosecution may have been able to avoid dismissal with a mere tweaking of the allegations. Could an admission that the accused was taking a piece of the collections have changed judge’s decision or other conduct establishing that he was not solely a player impacted the results? Absolutely.
To read more about New York Gambling crimes (felonies, misdemeanors and defenses) including Promoting Gambling and Possession of a Gambling Device, please review this blog, the highlighted links and the sites listed below. Additional information can also be found on Enterprise Corruption and Money Laundering.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. The New York criminal defense attorneys and gambling crimes defense lawyers represent clients throughout New York City – Queens, Brooklyn, Manhattan and the Bronx – as well as municipalities in many suburban counties including Westchester, Rockland and Putnam.