Black jack is fun. At least, I enjoy it…in Las Vegas. Some people like to play poker. Others simply put money – big and small dollars – on NFL, NHL, NBA and MLB games. Toss in college sports, there is no shortage of gambling opportunities. While some jurisdictions allow or permit gambling, others simply do not. In New York State there are many criminal statutes in the New York Penal Law that are both felonies and misdemeanors. Simply, New York State regulates, enforces and prosecutes illegal gambling. Vegas New, York City is not. One of the offenses prosecuted by local District Attorneys is Second Degree Promoting Gambling, New York Penal Law 225.05. This class “A” misdemeanor is punishable by as much as one year in jail. A person is guilty of PL 225.05 if he or she knowingly advances or profits from an unlawful gambling activity. What makes this crime a felony of First Degree Promoting Gambling, New York Penal Law 225.10, is that the accused either engages in bookmaking by accepting at least six bets with a total value in excess of $5,000.00 in one day or receives money or written records from another person who is not a player who’s playing or chances are reflected by these records or monies or this person receives more than five hundred dollars of money being played in any given day. A long run on type sentence? Maybe, but that is the law in the State of New York that you and your criminal defense attorney will face when or if you are charged with Either First or Second Degree Promoting Gambling. For the purpose of clarity so you can better understand the crime or crimes, this blog entry will address what it means to advance from an unlawful gambling activity.
In People v, Fredericks, 2017 NY Slip Op 50091 (New York Criminal Court 2017), The accused was observed holding money and rolling dice in the street while six other people exchanged money. Based on the police officer’s training and experience, he concluded that the men were all engaged in a game of chance. Nothing in the complaint / information further alleged how, if at all, the defendant profited or advanced from an unlawful gambling activity. In pursuit of a dismissal for lack of legal or facial sufficiency, the defendant argued that this claim, even if true, did not legally establish the crime. More accurately, it appeared that the defendant not only failed to exhibit traits of advancing or profiting from gambling, but instead conducted himself in a manner consistent with and as a player. Because one cannot profit or advance from an illegal activity and be a participant as a gambler in the same, PL 225.05 was not sufficiently pleaded.
Certainly, nobody wants to find him or herself in the precarious position of being arrested for promoting gambling and advancing from such activities when in fact he or she is merely a gambler. The difference between the two and the consequences are stark. While Fredericks may not delve into the issues surrounding Second Degree Promoting Gambling in great detail, the broadest way to interpret this crime and to establish a defense for the same is that one is not pocketing any money or taking bets, but one is a player of cards, dice or whatever the gambling may be.
To better understand the nuances found in New York gambling statutes and laws, take a moment to search this blog or follow the links contained in this entry.
Saland Law PC, a New York criminal defense firm founded by two former Manhattan Assistant District Attorneys, represents clients in all stages of a criminal case from investigation and arrest to hearings and trials throughout the New York City region.