PEOPLE v. DAVIDSON (2002)

The People appeal from an order granting the motion of defendant to set aside the verdict convicting him of loitering “in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia” (Penal Law § 240.35[2] ).   In granting the motion, Supreme Court determined that Penal Law § 240.35(2) is unconstitutional because it is indistinguishable from Penal Law § 240.35(3), which was invalidated by People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 447 N.E.2d 62, cert. dismissed 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201.   We disagree.

Penal Law § 240.35(3) is a companion statute to the consensual sodomy statute invalidated by People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936, rearg. denied 52 N.Y.2d 1072, 438 N.Y.S.2d 1028, 420 N.E.2d 412, cert. denied 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845.   In our view, it “was intended only to provide an additional means of enforcing the statute struck down in Onofre and therefore was not severable from that statute” (New York v. Uplinger, 467 U.S. 246, 248, n. 2, 104 S.Ct. 2332, 81 L.Ed.2d 201).

In contrast to Penal Law § 240.35(3), Penal Law § 240.35(2) does not punish conduct anticipatory to constitutionally protected activity.   Indeed, the New York Constitution provides that no “gambling, except lotteries operated by the state and * * * pari-mutuel betting on horse races * * * shall hereafter be authorized or allowed within this state” (N.Y. Const, art I, § 9).   Penal Law § 240.35(2) was enacted under the authority of the State's police power to prohibit loitering in a public place, not for the purpose of all gambling, but only “for the purpose of gambling with cards, dice or other gambling paraphernalia”.   That power is “ ‘very broad and comprehensive’ and in its exercise ‘the conduct of an individual and the use of property may be regulated so as to interfere, to some extent, with the freedom of the one and the enjoyment of the other’ ” (People v. Bunis, 9 N.Y.2d 1, 4, 210 N.Y.S.2d 505, 172 N.E.2d 273, quoting Matter of Jacobs, 98 N.Y. 98, 108).   Thus, we disagree with the dissent that Penal Law § 240.35(2) should be invalidated merely because it regulates otherwise legal activity.

We note that the only issue before us is whether Penal Law § 240.35(2) is indistinguishable from Penal Law § 240.35(3), which was invalidated by People v. Uplinger (supra ).   The issue whether Penal Law § 240.35(2) is reasonably related to the public good and thus a valid exercise of police power is not before us on this appeal by the People.   Our power of review is limited to “any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant” (CPL 470.15[1] ), and thus “consideration of defendant's other arguments will have to await a possible future appeal by him after sentencing” (People v. Goodfriend, 64 N.Y.2d 695, 698, 485 N.Y.S.2d 519, 474 N.E.2d 1187;  see, People v. Karp, 76 N.Y.2d 1006, 1008-1009, 565 N.Y.S.2d 751, 566 N.E.2d 1156).   We therefore reverse the order, deny the motion, reinstate the verdict and remit the matter to Supreme Court for sentencing.

It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law, the motion is denied, the verdict is reinstated and the matter is remitted to Supreme Court for sentencing.

We respectfully dissent, and would affirm the order granting the motion of defendant to set aside the verdict convicting him of loitering (Penal Law § 240.35[2] [loitering or remaining in a public place for the purpose of gambling with cards, dice or other gaming paraphernalia] ).   In People v. Uplinger, 58 N.Y.2d 936, 460 N.Y.S.2d 514, 447 N.E.2d 62, cert. dismissed 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201, involving a loitering conviction under Penal Law § 240.35(3), the Court of Appeals reversed the conviction and dismissed the information on the ground that the underlying conduct could not be deemed criminal after People v. Onofre, 51 N.Y.2d 476, 434 N.Y.S.2d 947, 415 N.E.2d 936, rearg. denied 52 N.Y.2d 1072, 438 N.Y.S.2d 1028, 420 N.E.2d 412, cert. denied 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 was decided.   That analysis applies equally to a conviction under Penal Law § 240 .35(2).   It has been consistently held that casual gambling is not a crime and that casual gamblers are not criminals (see, e.g., People v. Stein, 280 App.Div. 176, 178, 112 N.Y.S.2d 291 [“A mere player is guilty of no crime”], affd. 304 N.Y. 834, 109 N.E.2d 710, rearg. denied 305 N.Y. 566, 111 N.E.2d 441;   People v. Solomon, 296 N.Y. 220, 222, 72 N.E.2d 163 [“casual betting or gaming by individuals-as distinguished from betting or gambling as a business or profession-is not a crime”];  Watts v. Malatesta, 262 N.Y. 80, 82, 186 N.E. 210 [“casual betting or gaming by individuals * * * is not a crime”];  People v. Bright, 203 N.Y. 73, 76, 96 N.E. 362 [same];  People v. Stedeker, 175 N.Y. 57, 62, 67 N.E. 132 [“ordinary betting has never been made a crime”];  People v. Melton, 152 Misc.2d 649, 651, 578 N.Y.S.2d 377 [“Throwing dice is gambling (see, People ex rel. Ellison v. Lavin, 179 N.Y. 164, 71 N.E. 753), but participating in gambling of this nature as a casual player is not a crime (PL [sic ] § 225.00 [4];  see, People ex rel. Guido v. Calkins, 9 N.Y.2d 77, 211 N.Y.S.2d 166, 172 N.E.2d 549;  Watts v. Malatesta, 262 N.Y. 80, 186 N.E. 210;  People v. Cea, 141 Misc.2d 234, 533 N.Y.S.2d 239)”] ).

In the instant case, the police observed a group of approximately 8 to 10 young men, including defendant, who were “shooting dice for money” in a residential driveway.   Defendant was not engaged in gambling that could be deemed criminal because there is no evidence that he was either advancing gambling activity or profiting therefrom (see, Penal Law § 225.00[4], [5];  § 225.05).

MEMORANDUM:

All concur except PINE, J.P., and GORSKI, J., who dissent and vote to affirm in the following Memorandum: