People v Greenhill

[*1] People v Greenhill 2017 NY Slip Op 51917(U) Decided on December 26, 2017 Criminal Court Of The City Of New York, New York County Frey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 26, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Shannon Greenhill, Defendant.



2017NY047521



For the Defendant:

Judith E. Stein, Esq.

139 Fulton Street, No.510

New York, NY 10038

For the People:

Cyrus R. Vance, Jr.

District Attorney, New York County

One Hogan Place

New York, NY 10013

By: A.D.A. Andrew Trueheart[FN1]
David Frey, J.

The defendant was originally charged with one count each of Promoting Gambling in the Second Degree (PL 225.05), Possession of a Gambling Device (225.30[2]), and Loitering (PL 240.35[2]). On October 19, 2017, the People dismissed the first count, Promoting Gambling in the Second Degree. The defendant, in an omnibus motion dated November 7, 2017, sought, inter alia, to dismiss the remaining two counts as facially insufficient pursuant to CPL 710.20(1) and CPL 170.30.[FN2] The People filed their motion response and a Voluntary Disclosure Form (VDF) on December 20, 2017, as well as a cross-motion for reciprocal discovery.

The motion to dismiss both counts for facial insufficiency is granted as follows:

FACIAL SUFFICIENCY

Criminal Procedure Law (CPL) 100.40(1) states that an information is sufficient on its [*2]face when it substantially conforms with CPL 100.15; the allegations provide reasonable cause (CPL 70.10[2]) to believe that the defendant committed the offense charged; and the non-hearsay allegations in conjunction with any supporting deposition establish, if true, every element of the offenses charged and the defendant's commission thereof. "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

1. Possession of a Gambling Device (PL 225.30[2]).

In order for the People to charge this defendant with Penal Law 225.30[2], the People had to allege that "with knowledge of the character" of the gambling device, he (1) possessed the dice, (2) believing that they were to be used in the advancement of "unlawful gambling activity." The only real issue presented here[FN3] is whether the People sufficiently pled that the defendant was involved in unlawful gambling activity when he possessed the dice.

"Advances gambling activity" is defined in Penal Law 225.00(4):A person "advances gambling activity" when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity."Player" is defined in Penal Law 225.00(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 person gambling winning, 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 people to play, permitting the use of premises therefor and supplying cards or other equipment used therein.

To break it down to its simplest terms, in New York State it is not illegal for people to roll dice for money if they are only players. Only someone who collects a "vig"[FN4] regardless of the outcome can be charged for promoting gambling or possessing a gambling device.

The police officer in his misdemeanor complaint stated:

I observed the defendant in a ground[FN5] of other individuals exchanging money and rolling dice on the ground at the above-described location. Based on my professional training as a police officer and my prior experience,[FN6] I know that the defen[d]ant was placing monetary bets and the dice were rolled to predict the winner and loser of the scheme in a [*3]game of chance. I took $45 in US currency from the defendant's pocket. I am informed by [another police officer] that he took dice from the ground in front of the defendant where he threw it.[FN7] Based on my training and experience, I know that the above-described dice are commonly used in gambling-related activities.

The officer did not allege that the defendant was taking a percentage of the winnings unrelated to the defendant's individual game play, thus the defendant was doing nothing illegal. Without that crucial information, the defendant cannot be charged with Possessing a Gambling Device (Matter of Victor M., 9 NY3d 84 [2007]). This charge is dismissed for facial insufficiency.

2. Loitering (PL 240.35[2]).

In order for the People to charge this defendant with Penal Law 240.35(2), the People had to allege that the defendant "loiter[ed] or remain[ed] in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia." Penal Law 225.00(2) defines "gambling:"

A person engages in gambling when he stakes or risks something of value upon the outcome 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.The officer's complaint, once again, allegesI observed the defendant in a ground of other individuals exchanging money and rolling dice on the ground at the above-described location. Based on my professional training as a police officer and my prior experience, I know that the defen[d]ant was placing monetary bets and the dice were rolled to predict the winner and loser of the scheme in a game of chance. I took $45 in US currency from the defendant's pocket. I am informed by [another police officer] that he took dice from the ground in front of the defendant where he threw it. Based on my training and experience, I know that the above-described dice are commonly used in gambling-related activities.

To break it down to its simplest terms, in New York State it is a violation for people to roll dice for money even if they are only players, if they do so in a public place. But, this complaint fails to make out the Loitering charge on two independent grounds.

First, the officer did not say that he observed the defendant roll dice and then exchange money after the dice were rolled: the complaint as written states the defendant was with other individuals who were exchanging money and rolling dice on the ground. The officer did not state that he heard the defendant have any conversation with the other individuals relating to the number of pips facing upwards after the dice landed, and then observe the defendant subsequently exchange money. Even a "fair reading" (Casey, supra) of this grammatically tortured paragraph still does not allow sufficient notice for the reader to deduce whether the defendant, the other individuals, or everyone in the group were rolling dice and exchanging money. The complaint could have stated, "I observed the defendant roll dice and, after the dice landed, exchange money with other individuals based upon how the dice landed." It did not. Or, if the officer did not observe the defendant himself roll the dice, but saw someone else roll the dice, followed by the defendant yelling, "Box cars!" or "Snake eyes!" (or any other indicia that [*4]he was involved in the dice game) and then exchange money with someone else, the charge would have survived. It does not. No indicia that the defendant was gambling is made out in this complaint. Certainly, the bare fact that after he was arrested the defendant had $45.00 in his pocket added nothing to this complaint. The complaint also did not provide any facts about this particular defendant upon which the officer's opinion is based, nor explained the officer's "prior experience" in any way. This complaint also begs the question, why the officer had to rely on his "opinion" that gambling was taking place rather than simply detailing in full what took place with this defendant vis-à-vis the dice, the money, and the other individuals present. (See, People v Rollins, 125 AD3d 1540 [4th Dep't 2015] [complaint dismissed due to People's failure to allege the defendant was holding money, exchanging money with other men in the group, or even rolling dice]). This complaint simply fails to meet the element that the defendant was gambling (compare with, People v Buckhannon, 48 Misc 3d 1230[A] [NYC Crim Ct, Bronx Co 2015] [Hornstein, J.] [dismissing Possession of a Gambling Device, but finding Loitering charge properly pled where the complaint stated the defendants were in a circle, each of them threw U.S. currency on the floor in front of them, took turns throwing dice in the middle of the circle, and the defendants each collected currency from the floor]).

In addition to not making out the "gambling" element, this complaint also failed to meet loitering's "public place" element. Penal Law 240.00(1) defines a "public place" as

A place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence.

Here, the complaint alleged that the defendant was "in front of 850 Columbus Avenue, in the County and State of New York" and "on the ground at the above-described location." Nothing else in the complaint describes where the dice rolling was taking place. Even taking judicial notices that 850 Columbus Avenue (also known as Building 10 in the New York City Housing Authority's Douglas I Housing projects) runs approximately 200 feet along Columbus Avenue[FN8] does nothing to save this charge, because its entrance is actually in the "rear" side, opposite Building 122 (860 Columbus Avenue). Thus, even "in front of" the building is vague. In addition, the most recent Google Maps satellite images taken in 2017[FN9] reveal that portions "in front of" the building on the Columbus Avenue side have fenced-in ramps and lawns. The complaint could have stated that the gambling was taking place on a sidewalk to which the public had access in front of that address. It did not. Or, if the officer had alleged that it took place on a road, park, or anyplace else where the public has access, the charge would have survived. It does not. These bare allegations are not descriptive enough to make out the "public [*5]place" element (People v Afilal, 26 NY3d 1050 [2015]; People v Fredericks, 54 Misc 3d 1210[A] [NYC Crim Ct, NY Co 2017]. See also, People v Ocasio, 186 Misc 2d 822 [City Court, Rochester 2001] [private residence's back yard was not a "public place"]).

This charge is thus also dismissed for facial insufficiency.

CONCLUSION

The accusatory instrument is dismissed for facial insufficiency (CPL 170.30 [1][a]; 170.35 [1][a]), with leave for the People to refile the charge consistent with CPL 30.30 and 170.30 (People v Nuccio, 78 NY2d 102, 104-105 [1991]). Should the People file a sufficiently pled superseding information, the defendant's remaining motions are decided as follows: (1) a Mapp/Huntley/Dunaway hearing is granted, (2) Sandoval and Ventimiglia (Molineux) hearings are granted and referred to the trial court (CPL 240.43), (3) the defendant's motion for a Bill of Particulars and further discovery is denied, (4) the People must comply with their continuing duty to disclose, including potentially exculpatory evidence, to the defendant (CPL 240.20[2] and 240.60; Brady v Maryland, 373 US 83 [1963]), and (5) the defendant must comply with their reciprocal discovery obligations (CPL 250.10 and 250.20).

Dated: December 26, 2017

New York, New York

DAVID FREY, J.C.C. Footnotes

Footnote 1: It should be noted that this assigned assistant did not draft the complaint at issue.

Footnote 2: This Court, on November 20, 2017, granted the defendant's motions for Mapp/Huntley/Dunaway hearings, reserved Sandoval and Ventimiglia hearings for the trial court, and reserved its decision on the facial insufficiency motion, which is decided herein.

Footnote 3: Defense counsel in her moving papers also claims that "there is no such statute as Penal Law Section 225.30[2]" (Affirmation of Judith E. Stein, Esq., dated November 7, 2017, p. 2, ¶6). There is (L.2013, ch. 47, §2).

Footnote 4: "Vig," which is short for vigorish (Yiddish slang derived from the Ukrainian or Russian words for winnings or profits), is defined as the percentage deducted from a gambler's winnings by a game's organizers. http://www.dictionary.com/browse/vig?s=t.

Footnote 5: The court is assuming that this was a typo for "group."

Footnote 6: The complaint does not explain if the officer's prior experience was as an investigator, gambler, or croupier.

Footnote 7: Due to the pronoun cornucopia in that sentence, the complaint also does not make out whether the defendant or the other officer threw the dice to where they were recovered.

Footnote 8: https://www1.nyc.gov/assets/nycha/downloads/pdf/DouglassI & II.pdf

Footnote 9: https://www.google.com/maps/place/850+Columbus+Ave,+New+York,+NY+10025/@40.7968617,-73.9646373,3a,75y,306h,90t/data=!3m7!1e1!3m5!1sgmtvvbGKYr7tAsEKnFGv1A!2e0!6s%2F%2Fgeo1.ggpht.com%2Fcbk%3Fpanoid%3DgmtvvbGKYr7tAsEKnFGv1A%26output%3Dthumbnail%26cb_client%3Dsearch.TACTILE.gps%26thumb%3D2%26w%3D86%26h%3D86%26yaw%3D306.9627%26pitch%3D0%26thumbfov%3D100!7i13312!8i6656!4m5!3m4!1s0x89c2f623fca3600f:0x4b318fdb375d6ea6!8m2!3d40.7970064!4d-73.9648855