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Old 09-04-2005, 02:49 PM
Derek in NYC Derek in NYC is offline
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Default The current NY law

BASIC FRAMEWORK

Out of curioisity, I quickly looked into this. Apologies in advance for some of the legalese, but I was cutting-and-pasting from LEXIS, and not really spending a lot of time re-writing to make it user friendly. However, the analysis is straightforward. The basic questions in each instance are (1) whether the game or scheme in issue constitutes gambling, and (2) if so, whether the defendant's conduct is of the indicated promotional character rather than that of a "player." If both questions are answered in the affirmative, a crime is committed regardless of the kind of scheme and regardless of the precise nature of the promotional activity; otherwise, no offense is committed. NY CLS Penal Article 225 Note

IS POKER GAMBLING? SKILL VS LUCK

Under New York law, poker is a game of chance. As such, the playing of poker constitutes gambling activity. See the quoted language from People v. Turner, 165 Misc. 2d 222, below:

"The principle that a game of skill is not within the compass of a gambling statute is one of long standing in this State (see, People v Fuerst, 13 Misc 304, 307 [Queens County Ct 1895]), as the court in Hunt noted. (162 Misc 2d, at 73, supra.) Gambling differs from other kinds of contests in that in gambling "the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein." (Penal Law 225.00 [1].) Games of chance range from those that require no skill, such as a lottery (see, e.g., Ginsberg v Centennial Turf Club, 126 Colo 471, 477, 251 P2d 926, 929 [1952]), to those such as poker or blackjack which require considerable skill in calculating the probability of drawing particular cards. Nonetheless, the latter are as much games of chance as the former, since the outcome depends to a material degree upon the random distribution of cards. ( Matter of Plato's Cave Corp. v State Liq. Auth., 115 AD2d 426, 428, affd 68 NY 2d 791.) The skill of the player may increase the odds in the player's favor, but cannot determine the outcome regardless of the degree of skill employed."

Note that the applicable standard is whether luck plays a "material" role--not whether it plays a "predominant" role.

DO CLUBS PROMOTE GAMBLING? RAKE VS TIME CHARGE

The BPC has also argued that it is not "profiting" from gambling activity as defined under the statute because it charges time and is not taking a rake.

It is not clear whether BPC "profits" from gambling activity. A person "profits from gambling activity" when, other than as a player, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity. Penal L. 225.00[5].

Read literally, the time charge seems to avoid the problems that a rake would create.

Unfortunately for BPC, this argument is statutorily impaired, since it is also illegal to "knowingly advance" gambling activity. A person "advances gambling activity" when, acting as other than a player, he engages in conduct which materially aids any form of gambling activity. Penal Law 225.00[4]. People v. Giordano, 87 N.Y.2d 441. 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." People v. Shing, 83 Misc. 2d 462

In the Sheng case, "dealers, cutters, moneyman/manager, and security" were all charged. Therefore it seems clear that what BPC employees and management did will violate the "advances" prong of the statute.

CONCLUSION

Unfortunately, current precedent does not support BPC's arguments. If they are to prevail, it will require a change in existing law. This is possible, but not likely.

Bottom line here is that the status of poker in NY is a legislative problem. For better or worse, it is illegal to run card rooms, and if we dont like that, it needs to be changed in Albany. Whether the conduct in question is illegal, is not really up for debate.
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  #42  
Old 09-04-2005, 09:37 PM
StevieG StevieG is offline
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Default Re: The current NY law

[ QUOTE ]

Out of curioisity, I quickly looked into this. Apologies in advance for some of the legalese, but I was cutting-and-pasting from LEXIS, and not really spending a lot of time re-writing to make it user friendly. However, the analysis is straightforward.

[/ QUOTE ]

Thaks, Derek, well done.
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  #43  
Old 09-04-2005, 10:51 PM
Easy E Easy E is offline
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Default Re: The current NY law

Nicely done, Derek. I would caution anyone reading this that they should not consider this a legal opinion and base any of their own risk-management decisions on this post. Translation- don't think you can find a loophole and use Derek's post to justify the legality of your decision.

Also, if I ever need to get involved in another debate on whether poker is gambling or not, I'm lifting this verbatim:

[ QUOTE ]
IS POKER GAMBLING? SKILL VS LUCK

Gambling differs from other kinds of contests in that in gambling "the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein." Games of chance range from those that require no skill, such as a lottery, to those such as poker or blackjack which require considerable skill in calculating the probability of drawing particular cards. Nonetheless, the latter are as much games of chance as the former, since the outcome depends to a material degree upon the random distribution of cards. The skill of the player may increase the odds in the player's favor, but cannot determine the outcome regardless of the degree of skill employed."


[/ QUOTE ]


Whether we poker players will ever be able to convince legislative members that, over the long term, skill can and does outweigh the luck factor is anyone's guess.
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  #44  
Old 09-05-2005, 12:40 AM
cokehead cokehead is offline
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Default Re: The current NY law

Wow Derek, very nicely done, makes my attempt look very amateurish (which it is).
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