People v Buckhannon

[*1] People v Buckhannon 2015 NY Slip Op 51322(U) Decided on September 8, 2015 Criminal Court Of The City Of New York, Bronx County Hornstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

David Buckhannon, Defendant.



2015BX013607



Kenneth J. Kaufmann, Esq.

PO Box 146

Ardsley, New York 10502

Allison S. Mitchell, Esq.

Assistant District Attorney

Bronx District Attorney's Office

Bronx, New York 10451
Steven J. Hornstein, J.

By omnibus motion, filed July 13, 2015, the defendant seeks, inter alia, dismissal of

the accusatory instrument for facial insufficiency. The Court, having reviewed the defendant's moving papers, the People's response and all court documents, concludes as follows:

Criminal Procedure Law (CPL) § 100.40 provides that an information is sufficient

on its face when it substantially conforms with the requirements prescribed in CPL § 100.15

and contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged and non-hearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof. CPL § 100.40 (1)

(a) (b) (c). Reasonable cause exists "when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as

to convince a person of ordinary intelligence, judgment and experience that it is reasonably

likely that such offense was committed and that such person committed it" (CPL 70.10 [2]).

Compliance with CPL § 100.40 (1) (c) is referred to as the "prima facie case requirement." People v. Jones, 9 NY3d 259, 262 (2007). Failure to establish a "prima

facie" case constitutes a jurisdictional defect to the criminal action. People v. Kalin, 12

NY3d 225 (2009). "A prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson,92 NY2d 677, 680 (1999). "Nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion

to dismiss based on proof presented at trial" (see Peter Preiser, 2004 Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL § 100.40). Facial sufficiency analysis requires the court to assess the non-hearsay evidentiary allegations contained within the "four corners

of the instrument itself" to determine whether the "prima facie case requirement" has been met.

People v. Thomas, 4 NY3d 143, 146 (2005). In making this assessment, the court may draw

reasonable inferences from the facts set forth in the instrument. People v. Jackson, 18 NY2d

738, 747 (2012). "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 reading." People v. Casey, 95 NY2d 354, 360 (2000).

Here, the accusatory instrument is comprised of a misdemeanor information charging

the defendant and four others with one count of possession of a gambling device (PL § 225.

30 [a] [2]) and one count of loitering for the purpose of gambling (PL § 240.35 [2]). The information alleges, in pertinent part, that on March 21, 2015, at approximately 11:05 p.m., Police Officer Michael Monahan observed the defendants inside the lobby of 1526 Beach Avenue, a "Clean Halls" building. The information further alleges that the officer observed

the defendants "in a circle"; that each of them threw United States currency onto the floor in front of them; that the defendants took "turns throwing dice onto the floor, in the middle of

the circle"; and that the defendants "collected the United States currency from the floor." See misdemeanor information, dated 3/22/15.

The defendant does not address any specific elemental deficiency in the accusatory instrument, rather, he seeks dismissal on the ground that the allegations are conclusory and nonspecific and fail to "state which defendants threw dice, and which collected currency."

See defendant's affirmation at 4. The People oppose dismissal and contend that the information is facially sufficient with respect to both of the charged counts. See People's affirmation at 2-6.

Contrary to the People's contention, the factual allegations of the accusatory instrument are insufficient to establish possession of a gambling device (PL § 225.30 [a] [2]). Contrary to

the defendant's contention, the factual allegations of the accusatory instrument are sufficient

to establish loitering for the purpose of gambling (PL § 240.35 [2]).

Possession of a Gambling Device

Penal Law (PL) § 225.30 (a) (2) provides, in pertinent part: "A person is guilty of possession of a gambling device when, with knowledge of the character thereof, he...possesses ...any... gambling device, believing that the same is to be used in the advancement of unlawful gambling activity." PL § 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..." PL § 225.35 (1) provides: "Proof of possession of any gambling device...is presumptive evidence of possession thereof with knowledge of its character or contents."

Thus, to establish a prima facie case of possession of a gambling device (PL § 225.30 [a]

[2]), the accusatory instrument must sufficiently allege four elements: (1) that the defendant possessed, (2) a gambling device, (3) with knowledge of its' character, (4) while believing

that the device was to be used in the advancement of unlawful gambling activity.

The allegations contained in the instant accusatory instrument that the defendant and others were observed in a circle, throwing dice and money onto the floor, and then collected

the money from the floor are sufficient to establish the first three elements required under PL

§ 225.30 (a) (2). These allegations, however, are insufficient to establish the fourth element

— a belief that the dice were used in the advancement of unlawful gambling activity.

Penal Law § 225. 00 (4) provides:

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.

Penal Law (PL) § 225.00 (3) defines a "Player" as:

[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....

"The governing rule of statutory construction is that courts are obligated to interpret

a statute to effectuate the intent of the Legislature, and when the statutory language is clear

and unambiguous, it should be construed so as to give effect to the plain meaning of the

words used." People v. Brown, 25 NY3d 247, 250, quoting People v. Finnegan, 85 NY

2d 53, 58 (1995). Here, the statutory language of PL §§ 225.30 (a) (2) and 225.00 (4) is

clear and unambiguous— a mere "player" is not subject to criminal liability for possession

of a gambling device (PL § 225.30 [a] [2]).

In the Matter of Victor M., 9 NY3d 87 (2007), a case remarkably similar to the instant matter, the police were conducting a vertical patrol in a Bronx "Clean Halls" building when they observed, in a building hallway, the fifteen year old appellant and several others playing dice and exchanging United States currency. When neither the fifteen year old nor his mother could provide identification, the officers transported the teen to the local precinct where, during a search, drugs were recovered from his pants' pocket. At a hearing to determine the admissibility of the drugs, the Family Court held the detention and search were constitutionally permissible since the appellant had been observed committing two misdemeanors, promoting gambling in the second degree (PL § 225.05) and possession of a gambling device (PL § 225.30 [2). In a divided opinion, the First Department (see Matter of Victor M., 35 AD3d 180 [1st Dept 2006]), upheld the hearing court's finding. On further appeal, however, the Court of Appeals reversed and stated:

Neither of these statutes is applicable to the facts of this case.

Under the first (PL § 225.05), a person is guilty when he

knowingly advances or profits from unlawful gambling' —

but the definitions of terms advances gambling activity'

and profits from gambling activity' specifically exclude

actions taken as a player' (PL § 225.05 [4] [5]). Nothing

in the record suggests that Victor was anything other than

a player in the dice game. The second statute...applied when

a person possesses a gambling device "believing that the same

is to be used in the advancement of unlawful gambling activity

(PL § 225.30 [a] [2]). Whatever its precise scope, this statute

cannot fairly be read to apply to every player in a dice game

who touches the dice.

Here, as in Victor M., the factual allegations of the accusatory instrument are devoid

of information demonstrating that the defendant was engaged in any conduct, other than as a player. See also People v. Rollins, 125 AD3d 1540 (4th Dept 2015). Accordingly, the first

count of the accusatory instrument, possession of a gambling device (PL § 225.30 [a] [2]), is dismissed.

Loitering

Penal Law (PL) § 240.35 provides, in pertinent part: "A person is guilty of loitering

when he: (2) Loiters or remains in a public place for the purpose of gambling with...dice..."

PL § 225.00 (2) provides, in pertinent part: "A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance...not under his control or influence, upon an agreement or understanding that he will receive something of value on the event of a certain outcome." PL § 225.00 (3) provides, in pertinent part: A public place'

"means a place to which the public or a substantial group of persons has access, and includes,

but is not limited to...hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence."

"Drawing reasonable inferences from all the facts set forth in the accusatory instrument" (People v. Jackson, 18 NY3d 738, 747 [2012]) and giving "a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]) to the sworn allegations that

a police officer observed the defendant and others in a circle, throwing dice and currency into

a circle in front of them, in the lobby of a "Clean Halls" building, the court finds that the accusatory instrument is sufficient to establish reasonable cause to believe and a prima facie

case that the defendant loitered for the purpose of engaging in gambling (PL § 240.35 [2]).

See Matter of Victor M., 9 NY3d at 87 (defendant, observed with others in clean halls building with others gambling with dice "apparently violated the loitering statute"); People v. Wilder, 38 AD3d 263 (1st Dept 2007) (officer's observation of defendant on public street for over thirty-five

minutes, observation of defendant dropping dice and holding currency while in company of two others, sufficient to conclude defendant was loitering for gambling with dice); compare People

v. Hawkins, 1 Misc 3d 905(A) (Crim Ct, NY County 2003) (playing dice, absent allegation

that anything of value was risked or staked, insufficient to establish loitering for purpose of gambling). Accordingly, defendant's motion to dismiss the second count of the accusatory

instrument, loitering for the purpose of gambling (PL § 240.35 [2]), is denied.

This constitutes the decision and order of the court.

DATED: September 8, 2015

Bronx, New YorkHon. Steven Hornstein

NOTE: Portions of opinion omitted for purposes of publication.