NYC - BPC Club raided

[The Ocho]

These poker games are illegal, right? If so, I don't really feel sorry for any player, dealer, club member, etc. who got arrested. Don't break the law (no matter how frivolous or unjust you may view it) and you won't get a gun waved in your face. This isn't a great social injustice being perpetrated by the NYPD.

[BottlesOf]

Illegal? Well what aspect? Playing in the game isn't. Owning the room in which the games is occuring is. Dealing the game may or may not be.

[The Ocho]

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Illegal? Well what aspect? Playing in the game isn't. Owning the room in which the games is occuring is. Dealing the game may or may not be.

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It's not illegal to play? Well, OK. If this is true (which it very well may be), then it sucks that people are getting hassled.

However, if you are playing in a game that is apparently not supposed to be happening (as evidenced by the illegality of owning a poker room and the numerous police raids of various clubs) then you shouldn't be surprised that the cops are hassling you. It seems odd to me that so many people seem to be in such an uproar over something like this. It's unfortunate that the cops don't understand or care about the fairly subtle nuances and grey areas of gambling laws in NYC. But I would figure most players would have figured this out by now, and adjusted their attitudes accordingly. When you step in that room, you are taking a risk of being nailed by the cops and having your money seized. That seems to be the reality of the situation, like it or not. If you don't like that risk, don't take it.

It seems to me that some people that don't live here or play here don't understand the "nuances". Poker is a game of skill. Just like bridge or pool or golf or bowling. All of these activities (and many more) ask that you pay to play them. A bowling alley takes no extra or less if you score a 300 or roll 10 gutter balls and niether do the clubs. And to follow the point of what is and is not illegal...if it is not illegal to play then why is the players money being taken? That is a constitutional issue of illegal search and seizure...

As for the stupidity of claiming that poker players deserve to have guns waived in their faces...i leave that to others to comment on

I continually hear the "playing is not illegal" arguement that is supposed to make us all feel better about playing. The truth of the matter is that if it is not illegal to play the game then the game is not illegal. Read that again to make sure you read it right. It sounds simple and it is but so many people don't get it (including the police - if the police continue to set an example but not arresting players then THEY are saying that the game is NOT illegal) Then hosting the game is not illegal. It is not illegal to host a legal activity. People seem to want to say this over and over that only the owners/operaters are breaking the law but that is similiar to saying only drug dealers are breaking the law. GAMBLING is illegal. The biggest point to get across to people is that POKER IS NOT GAMBLING, it is a game of skill just as bridge and other games have been determined to be games of skill in NYC and as poker has been deemed in other parts of the country and so owning a club is not illegal. The clubs have no interest in who wins - no extra value if you bet a billion dollars or 20 cents...the point of the club is to provide a safe place to play where a common set of rules is followed to avoid conflicts...

[satelliter]

Careful whom you call idiot. A 4 year old can beat the best backgammon player in the world in one game, but that did not stop the New York State courts from deciding that betting on backgammon is NOT illegal gambling under the NYS constitution. The issue is whether the game is PREDOMINANTLY one of skill or luck, and if New York follows California, poker will be ruled a game of skill--predominantly, not completely.

Reading the on-line version of the NYS Constitution linked above, I find no definition of gambling. New York courts have properly defined gambling quite narrowly to limit this paternalistic and invasive provision which probably had a religious origin. Any activity, enjoyable or otherwise, especially involving spending money, can be addictive and might be harmful to many members of society, but that by itself is no reason to deny it to informed adults. Might as well ban television.

[cokehead]

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but that did not stop the New York State courts from deciding that betting on backgammon is NOT illegal gambling under the NYS constitution.

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citation please?

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The issue is whether the game is PREDOMINANTLY one of skill or luck

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Where in NEW YORK law is this distinction made?

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Reading the on-line version of the NYS Constitution linked above, I find no definition of gambling.

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Gambling is defined in the NY Penal Code.
NY CLS Penal § 225.00 states: "Gambling." A person engages in gambling when he 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 agreement or understanding that he will receive something of value in the event of a certain outcome.

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New York courts have properly defined gambling quite narrowly to limit this paternalistic and invasive provision which probably had a religious origin.

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Huh? citation?

I am going to assume you cannot give a citation for any of this, so I will provide one, PEOPLE v. DUBINSKY 31 N.Y.S.2d 234, which states in part:

In answering the questions raised by the defendant as to whether or not the defendant violated Section 973 of the Penal Law, viz., did he keep a room used for gambling, we must necessarily first determine whether gambling took place in the room in question. There is no doubt that to the description of this playing 'stud' poker for money is a game of chance and constitutes gambling. People v. Sergeant, 8 Cow. 139. 'Any [**4] game of cards for stakes is technically gambling.' In re Fischer, 231 App.Div. 193, 247 N.Y.S. 168, 178.

So the courts have ruled on this issue and have ruled specifically that poker is gambling. Well I guess they only specified stud poker, so maybe hold 'em isn't gambling (s/w).

[MRBAA]

Feeling a bit absurd debating a sober legal manner with a poster named "cokehead" I will nonetheless say that the precedent cited does cut to the core of the matter. Poker is a funny game -- it's clearly a gambling game, yet it is also clearly a game of skill. So court's have trouble deciding whether cardrooms should be treated like game clubs, and be legal, or like casinos, and be banned. In California, for many years some poker forms were legal and others were not.I think the bike et al could spread draw but not hold'em, Eventually, the laws caught up with reality, and all poker games were allowed. These days, card rooms seem to be all over in CA, and it seems to be no big deal.

[cokehead]

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Feeling a bit absurd debating a sober legal manner with a poster named "cokehead"

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I am addicted to Coca-Cola, not cocaine [img]/images/graemlins/wink.gif[/img]

[Derek in NYC]

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.