People v Fredericks

[*1] People v Fredericks 2017 NY Slip Op 50091(U) Decided on January 26, 2017 Criminal Court Of The City Of New York, New York County Cesare, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff, Dennis Fredericks, Defendant.



2016NY068723



For the Defendant:

The Legal Aid Society

(Martin Morris, Esq., of counsel)

For the People:

Cyrus R. Vance, Jr., District Attorney, New York County

(James Lebair, of counsel)
Heidi C. Cesare, J.

The defendant, Dennis Fredericks, is charged in a three count information with promoting gambling in the second degree (Penal Law § 225.05) (count one), unlawful possession of marijuana (Penal Law § 221.05) (count two), and loitering (Penal Law § 240.35 [2]) (count three). Defendant moves pursuant to Criminal Procedure Law §§ 100.40 and 170.30 to dismiss count one charging promoting gambling in the second degree on the ground that the charge is facially insufficient.

Defendant contends that count one, promoting gambling in the second degree, is facially insufficient because the information fails to sufficiently allege that defendant advanced from gambling activity. The People contend that advancing gambling activity may be reasonably inferred from the factual allegations. The court finds for the defendant. Though not addressed in defendant's omnibus motion, the court further finds that count three, loitering, is also facially insufficient as the information fails to sufficiently allege a public place.

For the reasons stated below, counts one and three are dismissed.[FN1]

The Allegations

The accusatory instrument sworn out by NYPD Police Officer John Rysieko, of the Housing Bureau PSA 5, provides that that on November 19, 2016 at about 5:00 p.m., across from 95 West 119th Street, in the County and State of New York, the following occurred:

[Deponent] observed the defendant rolling dice onto the ground while holding money at the above location, which is a public place. [Deponent] further observed a group of approximately 6 individuals surrounding the defendant exchanging money.[Deponent knows], based on [his] training and experience as a New York City Police Officer, the game [deponent] observed the defendant playing to be a game of chance in which players bet money and try to choose the correct number after rolling dice.[Deponent] also took 8 small plastic bags of marijuana from the defendant's front sweater pocket.[Deponent has] examined the substance described above as marijuana and [has] determined that it is in fact marijuana. This determination is based on [deponent's] professional training as a police officer in the identification of marijuana, [deponent's] prior experience as a police officer making drug arrests, and the odor emanating from the substance, which is characteristic of marijuana.

Facial Sufficiency

A facially sufficient information must contain non-hearsay factual allegations providing [*2]reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o 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]).

Promoting Gambling in the Second Degree

A person is guilty of promoting gambling in the second degree when "he knowingly advances or profits from unlawful gambling activity" (Penal Law § 225.05). A person advances gambling activity "when acting other than as a player, he engages in conduct which materially aids any form of gambling activity" (Penal Law § 225.00 [4]). A player is "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" (Penal Law § 225.00 [3]).

Here, the pertinent factual allegations are that the deponent officer observed defendant rolling dice onto the ground while holding money. The officer also observed approximately six other people surrounding defendant and exchanging money. Based upon his training and experience, the officer concluded that the defendant and the others were playing a game of chance.

In Matter of Victor M. (9 NY3d 84, 87 [2007]), The Court of Appeals held that promoting gambling in the second degree (Penal Law § 225.05) will not apply to a mere player in a dice game. Defendant's alleged actions, which are substantially similar to those observed in Victor M., are consistent with the actions of a player in a dice game. On these facts the court may not reasonably infer that defendant's involvement in the game rose to the level of advancing gambling activity.

For the foregoing reasons, the court finds that count one of the information, promoting gambling in the second degree (Penal Law § 221.05), is insufficiently plead. Defendant's motion to dismiss count one is granted.

Loitering

A person is guilty of loitering when he "[l]oiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia" (Penal Law § 240.35 [2]). Public place is defined 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" (Penal Law § 240.00 [1]). A complaint that lacks factual allegations describing the "public place" of the offense and merely relies on otherwise "conclusory statements that do no more than track [statutory language] . . . fails to meet the reasonable cause requirement and should be dismissed" (People v Afilal, 26 NY3d 1050 [2015]).

Here, the pertinent allegations are that defendant was observed "across from" 95 West 119th Street. According to the deponent officer this location "is a public place." The information provides no other information about the place where defendant was observed engaging in alleged criminal activity. The deponent's conclusory statement that a certain place was a "public place" fails to meet the reasonable cause requirement. For the foregoing reasons, the court finds that count three of the information, loitering (Penal Law § 240.35 [2]), is insufficiently plead. Count three is dismissed for facial insufficiency.

Motion to suppress statements

The defendant's motion is granted to the extent that a combined Huntley/Dunaway hearing is ordered.

[*3]Motion to Suppress physical evidence

Defendant's motion to is granted to the extent that a Mapp hearing is granted.

Sandoval Motion

A Sandoval hearing is reserved to the trial court.

Reservation of Rights

The right to make further motions is granted to the extent indicated in CPL § 255.20.

This constitutes the decision and order of the court.January 26, 2017

New York, New York

_______________________Heidi C. Cesare, J.C.C. Footnotes

Footnote 1:In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.