In the first entry in the New York Gambling Crimes series, I addressed the crime of Promoting Gambling in New York (Manhattan, Brooklyn, Queens, Bronx, Westchester or any other County in New York State) as well as the dry, yet important, definitions underlying this and other gambling statutes. Today’s entry addresses some cases that will help you further understand this offense and understand Promoting Gambling and related crimes from the perspective of a New York criminal defense attorney. More specifically, this entry will address who can be charged with Promoting Gambling pursuant to New York Penal Law sections 225.05 and 225.10.
To start things off, one cannot be charged with the crime of Promoting Gambling if one is merely a participant in that gambling. The Court of Appeals, New York’s highest court, recently affirmed that position in the Matter of Victor M., 9 N.Y.3d 84, 845 N.Y.S.2d 771, 876 N.E.2d 1187 (2007). In that case, the Court found that a player in a game of dice (it could have been any other game for the purpose of this conclusion) could not be charged with this offense because merely as a player, that person did not advance or profit from the unlawful gambling activity. One has to look no further than New York Penal Law 225.00(4) and (5) for corroboration in the statute itself to support the Court of Appeals’ determination. Keep in mind, that the terms “advance” and “profit” are both specifically defined in the statute.
Although a fact specific analysis is required to ascertain whether one is liable for Promoting Gambling, the following cases are good guides to assist one in determining criminal liability:
Ordinary betting as opposed to professional is generally not the type of gambling punishable under the statute (old gambling statute). See People v. Stedeker, 175 N.Y. 57 (1903)
Courts seem to disagree if games such as “Three Card Monte” and “Majhong” are games of “skill” and therefore are not considered gambling offenses. A bigger issues is which characteristic is greater, i.e., “skill” or “chance.” See People v. Denson, 192 Misc.2d 48 (NY Cty Crim. Ct. 2002) and People v. Li Ai Hua, 24 Misc.3d 1142 (NY Cty. Crim. Ct. 2009)
The New York criminal defense attorneys and former Manhattan prosecutors at Crotty Saland PC have successfully represented defendants investigated for and charged with gambling felonies involving search warrants and/or wire taps. For further information on the crime of Promoting Gambling in New York, contact one of our New York criminal defense lawyers for a consultation and review the prior NewYorkCriminalLawyerBlog.Com entry for a general understanding of Promoting Gambling in New York.
Crotty Saland PC is a New York criminal defense firm founded by two former Manhattan prosecutors. Crotty Saland PC represents clients throughout the New York City region.