Promoting Gambling and Related Charges in NY: Penal Law 225.05 & 225.10

Throughout New York City from Manhattan to Brooklyn and from Queens to the Bronx, criminal defense attorneys and lawyers encounter a variety of crimes. A set of crimes that your criminal defense lawyer should be familiar with, even though the offenses do not regularly cross the path of a judge or prosecutor, are the crimes related to gambling (Article 225 of the Penal Law). Specifically, these offenses include the felonies and misdemeanors of Promoting Gambling, Possession of Gambling Records and Possession of a Gambling Device. The NY criminal defense attorneys and former Assistant District Attorneys at Saland Law PC firmly believe that just because a prosecutor or judge may not deal with these crimes regularly does not mean that you should be unfamiliar with the law as well. Although not a substitute for a first hand reading and consultation on these crimes, this entry will deal with Promoting Gambling so our readers can develop a basic understanding of this offense.

New York Penal Law 225.05 – Promoting Gambling in the Second Degree

A person is guilty of Promoting Gambling in the Second Degree when he knowingly advances or profits from unlawful gambling activity. Promoting Gambling in the Second Degree is a class A misdemeanor punishable by up to one year in jail.

New York Penal Law 225.10 – Promoting Gambling in the First Degree

A person is guilty of Promoting Gambling in the First Degree when he knowingly advances or profits from unlawful gambling activity by:

(1) Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars; or (2) Receiving, in connection with a lottery or policy scheme or enterprise, (a) money or written records from a person other than a player whose chances or plays are represented by such money or records, or (b) more than five hundred dollars in any one day of money played in such scheme or enterprise.

Promoting Gambling in the First Degree is a class E felony punishable by up to four years in state prison.

Be forewarned…the following is a list of terms and definitions applicable to the statutes addressed above. While an understanding of these terms are essential to have a working knowledge of gambling crimes – that doesn’t make them easier to read. Please note, however, that the second entry in this series will deal with cases and legal decisions further defining these crimes. So…here we go:
(1) “Contest of chance” means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein. (2) “Gambling.” A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.

(3) “Player” means 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. A person who gambles at a social game of chance on equal terms with the other participants therein does not otherwise render material assistance to the establishment, conduct or operation thereof by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises therefor and supplying cards or other equipment used therein. A person who engages in “bookmaking”, as defined in this section is not a “player.” (4) “Advance gambling activity.” A person “advances gambling activity” when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity. Such conduct includes but is not limited to conduct directed toward the creation or establishment of the particular game, contest, scheme, device or activity involved, toward the acquisition or maintenance of premises, paraphernalia, equipment or apparatus therefor, toward the solicitation or inducement of persons to participate therein, toward the actual conduct of the playing phases thereof, toward the arrangement of any of its financial or recording phases, or toward any other phase of its operation. One advances gambling activity when, having substantial proprietary or other authoritative control over premises being used with his knowledge for purposes of gambling activity, he permits such to occur or continue or makes no effort to prevent its occurrence or continuation.

(5) “Profit from gambling activity.” A person “profits from gambling activity” when, other than as a player, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity.

(6) “Something of value” means any money or property, any token, object or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service, entertainment or a privilege of playing at a game or scheme without charge.

(7) “Gambling device” means any device, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity, whether such activity consists of gambling between persons or gambling by a person involving the playing of a machine. Notwithstanding the foregoing, lottery tickets, policy slips and other items used in the playing phases of lottery and policy schemes are not gambling devices. (7-a) A “coin operated gambling device” means a gambling device which operates as a result of the insertion of something of value. A device designed, constructed or readily adaptable or convertible for such use is a coin operated gambling device notwithstanding the fact that it may require adjustment, manipulation or repair in order to operate as such. (8) “Slot machine” means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely automatically or with the aid of some physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value. A device so constructed, or readily adaptable or convertible to such use, is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability. Nor is it any less a slot machine because, apart from its use or adaptability as such, it may also sell or deliver something of value on a basis other than chance. A machine which sells items of merchandise which are of equivalent value, is not a slot machine merely because such items differ from each other in composition, size, shape or color. A machine which awards free or extended play is not a slot machine merely because such free or extended play may constitute something of value provided that the outcome depends in a material degree upon the skill of the player and not in a material degree upon an element of chance.

(9) “Bookmaking” means advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events.

(11) “Lottery” means an unlawful gambling scheme in which (a) the players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one or more of which chances are to be designated the winning ones; and (b) the winning chances are to be determined by a drawing or by some other method based upon the element of chance; and (c) the holders of the winning chances are to receive something of value provided, however, that in no event shall the provisions of this subdivision be construed to include a raffle as such term is defined in subdivision three-b of section one hundred eighty-six of the general municipal law.

(11) “Policy” or “the numbers game” means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme. (12) “Unlawful” means not specifically authorized by law.

Boring? Yes. Necessary? Yes as well. Again, check back for our second entry where Saland Law PC will address and review the various statutes and case law applicable to gambling crimes.

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