Opinion
No. 2011KN054689.
2012-01-4
The PEOPLE of the State of New York, Plaintiff, v. JUN FENG, and Victor Chan, Defendants.
Charles J. Hynes, District Attorney, Kings County, by Yaser R. Othman, Esq., Assistant District Attorney, for the People. Jonathan D. Sims, Esq., for the Defendant.
Charles J. Hynes, District Attorney, Kings County, by Yaser R. Othman, Esq., Assistant District Attorney, for the People. Jonathan D. Sims, Esq., for the Defendant.
JOHN H. WILSON, J.
Defendants are charged with one count each of Promoting Gambling in the Second Degree (PL Sec. 225.05), and Possession of a Gambling Device (PL Sec. 225.30), both Class A misdemeanors.
By motion dated September 6, 2011, Defendant seeks dismissal of all charges, asserting that the People's complaint is facially insufficient, rendering said complaint jurisdictionally deficient.
The Court has reviewed the Court file, Defendant's motion, and the People's Response dated October 27, 2011, as well as the superceding information dated October 27, 2011, and Defendant's Reply Affirmation dated November 4, 2011.
For the reasons stated below, the motion to dismiss each count of Promoting Gambling in the Second Degree is denied. The motion to dismiss each count of Possession of a Gambling Device is granted.
FACTUAL STATEMENT
Pursuant to the superceding Criminal Court information dated October 27, 2011, which is attached to the People's Response also dated October 27, 2011, on or about July 8, 2011, Undercover Police Officer Number C0135 went to 8611 Bay Parkway, Brooklyn, New York. There, after ringing the door bell, he was met by Defendant Feng, who told the undercover officer that he “could come in and play some games.” After being allowed to enter the premises by Defendant Feng, the undercover officer observed “individuals sitting at two tables ... playing mahjong, which is a four player gambling game that requires a certain amount of skill and luck.”
Defendant Chan then approached the undercover officer, gave him $51.00 in chips, and told him that “one of the house rules was that whenever a player wins $15 or more in one hand, the house gets $1, which is placed in the house container.”
At one point during play, the undercover officer “made a mistake in the game ... and ... defendants then explained to informant the rules of the game.” At another point, “Defendant Chan set up a new table and Defendant Feng brought over the house container.”
The undercover officer also states that he “observed the defendants in possession of two video poker machines.” These machines are alleged to operate “by inserting United States currency bills into the machine and attempting to form a winning set of cards, and which games depend largely on luck.”
LEGAL ANALYSIS RE: FACIAL SUFFICIENCY
Defendants asserts that “the information is wholly devoid of any allegation that defendants were engaged in gambling' as that term is defined by statute” See, Defendants' motion dated September 6, 2011, p 3 para 4. Further, Defendants argue “the information is wholly devoid of any evidentiary facts that establish that mahjong is a game of chance' as the phrase is defined by statute.” See, Defendants' motion dated September 6, 2011, p 3 para 5.
Defendants also assert, in their Reply Affirmation, that the Possession of a Gambling Device charge is also insufficient. “Absent from the information ... are any facts that would tend to establish that defendants possessed these machines (ie. dominion and control over the machines.)” See, Defendants' Reply Affirmation dated November 4, 2011, p 2.
CPL Sec. 100.15 provides that every accusatory instrument must contain two elements; 1) an accusatory portion designating the offense charged, and 2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. These facts must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the accusatory instrument. See, People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319 (1986).
Further, under CPL Sec. 100.40, a misdemeanor information is facially sufficient if the non-hearsay facts stated in said information establish each and every element of the offense charged, as well as the Defendant's commission of said crime. If both of these factors are present, then the information states a prima facie case, and is sufficient. See, People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927 (1987).
On a motion to dismiss, this Court's review is limited to whether or not the People's allegations as stated in the Criminal Court information are facially sufficient. The facts alleged need only establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt. See, People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652 (1986).
Applying these principles to the instant matter, as to the counts alleging Promoting Gambling in the Second Degree, the factual allegations contained in the superceding information before this Court are facially sufficient. However, the same cannot be said for the allegations of Possession of a Gambling Device.
(A) Promoting Gambling in the Second Degree.
Under CPL Sec. 225.05, “a person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity.” CPL Sec. 225.00(2) defines “gambling” as “when (a person) 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 understanding that he will receive something in value in the event of a certain outcome.” CPL Sec. 225.00(1) defines a “contest of chance” as “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.”
“Advance gambling activity” is defined at CPL Sec. 225.00(4) as follows:
“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 towards 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 towards any other phase of its operation.”
The Practice Commentary to CPL Sec. 225.00 notes that with certain limited exceptions, “the definitions (presented in this section) have not been amended since their original enactment; thus, the following commentary draws substantially from the original commentaries.” See, William C. Donnino, Practice Commentary, McKinney's Penal Law, Book 39, p 354–355 (2008), citing Denzer and McQuillan, Practice Commentary, McKinney's Penal Law, pp 22–24 (1967). There, the older commentary noted that betting on the outcome of a chess game would constitute gambling “(d)espite chess being a game of skill, X and Y are gambling' because the outcome depends upon a future contingent event that neither has any control or influence over.” See, Donnino, Practice Commentary, McKinney's Penal Law Book 39, p 355. However, since chess is a game of skill, if the players were to bet against each other, they would not be gambling because each “have a material influence over the outcome.” Id at 355.
Thus, the definition given in CPL Sec. 225.00(1) of a “contest of chance” is “problematic.” Id at 355. “While some games or schemes are obviously contests of chance' (eg., roulette) ... and some are obviously contests of skill (eg., chess), there is a vast middle ground or gray area (eg., bridge and some other card games) that had caused the courts considerable difficulty.” Id at 355, citing Denzer and McQuillan, Practice Commentary, McKinney's Penal Law, p 23.
“The current definition of contest of chance' does not require that the element of chance be the dominating element.” ' Id at 356. Thus, while the game of three card monte is considered a game of skill, and not “gambling” (See, People v. Mohammed, 187 Misc.2d 729, 733, 724 N.Y.S.2d 803 (Crim Ct, N.Y. Cty 2001), “playing stud' poker for money is a game of chance and constitutes gambling.” See, People v. Dubinsky, 31 N.Y.S.2d 234, 237 (Ct Spec Sess, Bx Cty, 1941).
The game at issue here is “mahjong,” which is also spelled Ma Jong, but is more properly spelled Mah Jong. The current game is believed to be based upon a game reportedly invented by the Chinese philosopher Confucius in or about 500 BC. “The appearance of the game in various Chinese provinces coincides with Confucius' travels at the time he was teaching his new doctrines ... Confucius was said to be fond of birds, which would explain the name Mah Jong (Hemp Bird).” See, http://www.mahjongmuseum.com/brief.htm.
There is also authority for the proposition that Mah Jong “began ... being played in China in the mid to late 1800's ... yet another theory places its origins during the Taiping Rebellion and its creators as Chinese officers during that time.” See, http://www.mahjongsets.co.uk/history-mahjong.html.
“Mah Jong ... is a very tactile game. There are 136 tiles that are based off of different Chinese symbols and characters, although some sets go up to 144 tiles. The game is usually played with four players ... in order to play Mah Jong, a combination of skill and luck is required. This adds an element of excitement and unpredictability to the game. In addition to these, one must employ strategy and calculation in order to plan moves and react to what the other players are doing.” See, http://www.mahjongsets.co.uk/history-mahjong.html. (Emphasis added.)
The game was described in a paper written by the American anthropologist Stewart Cullen in 1895. See, http://www.gamesmuseum.uwate rloo.ca/Archives/Wilkinson/Wilkinson.html. That article describes a game using tiles made of paper, however, by the time the game was introduced to America in the 1920's, it was played with sets of tile made from ivory or bone. See, http://www.mahjongsets.co.uk/history-mahjong.html.
Since the 1920's, the popularity of the game of Mah Jong has increased, to the point where today, Mah Jong is played all around the world. There are a variety of associations, both overseas and here in America, which sponsor tournaments. Players are ranked, and there is a world champion Mah Jong player. See, http:// www.mahjongnews.com/en/index.php.
The only case to address the issues raised in this matter is People v. Li Ai Hua, 24 Misc.3d 1142, 1147, 885 N.Y.S.2d 380 (Crim Ct, Qns Cty, 2009). There, the Court dismissed a charge of Promoting Gambling in the Second Degree “as the information fails to contain a factual basis for the detective's conclusion that mahjong is gambling.” The People's complaint in that matter alleged “that people were handing co-defendants money to play mahjong which is a game of chance.' There is no support given for the claim that majhong is a game of chance.” 24 Misc.3d at 1147. The Court there did give the People leave to file a “legally sufficient superceding information.” Id at 1147.
Here, the People have served a superceding information, and in that document, the People allege that “Mah Jong ... requires a certain amount of skill and luck” in an effort to have the game declared a “contest of chance” under CPL Sec. 225.00(1). However, the mere fact that the game combines skill and luck does not make it a contest of chance. Further, given the history outlined above, under the circumstances presented in this case, the Court declines to declare Mah Jong to be a per se “contest of chance.”
However, this aspect of the Court's ruling does not mean that the superceding information is insufficient.
CPL Sec. 225.05 states that “a person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity.” The definition of “gambling” given in CPL Sec. 225.00(2) includes a “future contingent event not under his control or influence,” and is not limited solely to contests of chance.
Here, Defendant Feng is alleged to have allowed the undercover officer to enter the premises, and engage in a game of Mah Jong. It is also alleged that Defendant Chan explained to the undercover officer that “one of the house rules was that whenever a player wins $15 or more in one hand, the house gets $1, which is placed in the house container.” Later, when Defendant Chan set up a new table, Defendant Feng “brought over the house container.”
The use of a “house container,” a receptacle used by Defendants to collect their share of the winning hand, exhibited both Defendants “understanding” that they would “ “receive something in value in the event of a certain outcome” of a “future contingent event” not under the “control or influence” of the Defendants.
See, Dubinsky, 31 N.Y.S.2d at 238 (“ “the courts of many states including our own seem to be unanimous in their holding that where a host receives some consideration or some payment for permitting a card game to be played or other gaming to take place in his premises, that constitutes gambling”) (Citations omitted); See, also, Alperin, “Gambling in Private Residence as Prohibited or Permitted by Anti–Gambling Laws,” 27 ALR3d 1074 (2009).
Conversely, under the example of the chess players given in the 1967 Practice Commentary to PL Sec. 225.00, the Mah Jong players would not be engaged in gambling, since they have some control over the outcome of the game using their skill.
Further, under the definition given of “advanced gambling activity” in CPL Sec. 225.00(4), both Defendants “engage(d) in conduct which materially aids any form of gambling activity.” This includes “conduct directed towards the creation or establishment of the particular game,” “maintenance of premises,” and “inducement of persons to participate therein.” The People's superceding information includes allegations that each Defendant engaged in activity of this nature.
Thus, the allegations of Promoting Gambling in the Second Degree as to each Defendant are facially sufficient. The motion to dismiss this count is denied.
(B) Possession of a Gambling Device.
Under CPL Sec. 225.30(a) “a person is guilty of possession of a gambling device, when, with knowledge of the character thereof, he or she ... places or possesses or conducts or negotiates any transaction affecting ... (2)any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity.” CPL Sec. 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.”
In the superceding information dated October 27, 2011, the undercover officer states that he “observed the defendants in possession of two video poker machines.” These machines are alleged to operate “by inserting United States currency bills into the machine and attempting to form a winning set of cards, and which games depend largely on luck.” However, the case law applicable to this situation does not support an inference of illegality under these facts.
In Bubba Restaurant, Inc. v. New York State Liquor Authority, 160 A.D.2d 539, 540, 554 N.Y.S.2d 189 (1st Dept, 1990), a video game machine which rewarded the winning player with additional games free of charge constituted possession of a gambling device within the meaning of the statute. In Cos Dei San, Inc. v. New York State Liquor Authority, 147 A.D.2d 370, 537 N.Y.S.2d 536 (1st Dept, 1989), app den,74 N.Y.2d 611, 546 N.Y.S.2d 556 (1989), a video poker game which rewarded the winning player with an extension of free play was a gambling device. Further, in MNDN Restaurant, Inc. v. Gazzara, 128 A.D.2d 781,784, 513 N.Y.S.2d 257 (2d Dept, 1987), app den,70 N.Y.2d 603, 518 N.Y.S.2d 1026 (1987), a “Joker Poker” video game that gave players an extension of time or credits to a sufficient high score also was a gambling device.
In each of these cases, the player received something of value in exchange for their play, whether it be an extension of time, a credit, or some other reward. Regarding the two video poker machines recovered from the location of Defendant's arrest, no allegation is made regarding any item of value to be received in return for play on the machines.
Further, under these facts, since no one was observed playing the machines, the People cannot cure the defect by a further superceding information. In People v. Herman, 133 A.D.2d 377, 379, 519 N.Y.S.2d 550 (2d Dept, 1987), app den,70 N.Y.2d 932, 524 N.Y.S.2d 684 (1987), the People were able to establish that the defendant knew the character of the “Joker Poker” machine found in his establishment where “ “the winning player ... would fill out a slip of paper indicating the number of credits he won on the machine, and the player, in turn, would be given a certain amount of money per credit by the bar management.” See, also, People v. Spar, 263 AD 883, 883, 32 N.Y.S.2d 272 (2d Dept, 1942) (“ “there was no proof in the case, direct or by inference, that appellant had entered into any arrangement ... for the use of the machine as a gambling instrument.”)
Here, there is no interaction alleged between the Defendants and any potential players, which would exhibit the Defendants' knowledge of the illegal nature of the machine. No one is alleged to have played the machines; no one is alleged to have asked for, or been provided with any benefit or value in exchange for their play.
The mere fact that the machines accept money, a player must form combinations of cards, and the combinations are based on “luck” does not establish that any value is received in exchange for forming those combinations, or that the Defendants' knew of or provided any benefit to the player of said machines. In all respects, these allegations would fit the definition of any video game that provides play of a game in exchange for United States currency.
Thus, the counts alleging Possession of a Gambling Device are dismissed as to each Defendant as facially insufficient.
All other arguments advanced by the parties have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.