PEOPLE v. LI AI HUA (2009)

Defendant moves in an omnibus motion for the following relief: (1) A Bill of Particulars; (2) Discovery; (3) Dismissal of the Accusatory Instrument; (4) Suppression of Physical Evidence; (5) Suppression of Statement Evidence; (6) A Sandoval Application; and (7) A Reservation of Rights. The People have responded to the motion and Demand Reciprocal Discovery. Defendant's motion is decided as follows:

Defendant Li Ai Hua is charged, under a theory of acting in concert with three co-defendants, with Promoting Gambling in the Second Degree. (PL § 225.05.)

DISMISSAL OF THE ACCUSATORY INSTRUMENT

Defendant moves for dismissal of the accusatory instrument for facial insufficiency. It is defendant's contention that the information is defective as the facts alleged fail to establish that defendant engaged in a game of chance. According to defendant, mahjong is a game that requires skills that include tactics, observation and memory. In addition, defendant argues for dismissal on the basis that the accusatory instrument only establishes that defendant was present.

The People oppose the motion, arguing that mahjong is a game of skill and chance. The People annex to the affirmation in opposition printouts about mahjong from two websites.

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. (CPL §§ 100.15[3] and 100.40[1][b]; 70.10; People v. Jones, 9 N.Y.3d 259, 848 N.Y.S.2d 600, 878 N.E.2d 1016 [2007]; People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000]; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. (CPL § 100.40[1][c] ). An information which fails to satisfy these requirements is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Kalin, 12 N.Y.3d 225, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009]; People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987]; People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 [1986] ).

In reviewing an accusatory instrument for facial sufficiency, “[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 ․,” the Court should give it “a fair and not overly restrictive or technical reading.” (People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). What is needed in the pleading is that the factual allegations are sufficiently evidentiary in character such that they tend to support the charges. (People v. Allen, 92 N.Y.2d 378, 385, 681 N.Y.S.2d 216, 703 N.E.2d 1229 [1998] ).

In deciding a motion to dismiss for facial insufficiency, a court must confine its analysis to the allegations contained solely in the complaint and any depositions filed in support of it. (CPL §§ 100.40[1] and [4]; People v. Alejandro, supra at 138, 517 N.Y.S.2d 927, 511 N.E.2d 71; People v. Konieczny, 2 N.Y.3d 569, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). New facts contained in the affirmation in opposition are not part of the accusatory instrument and cannot serve to cure any of its alleged jurisdictional defects. (Id.; People v. Iftikhar, 185 Misc.2d 565, 713 N.Y.S.2d 671 [Crim. Ct. Bx. County 2000] ).

The accusatory instrument charges defendant with the commission of the aforementioned crime on January 28, 2009, between 5:55PM and 6:00PM, inside of 41-78 Main Street, Basement, Queens, New York, under the following circumstances:

Deponent [Detective Philip Adaszewski] states that on the above-mentioned date and time and place of occurrence, the defendant Liu Al Hua, opened the front door and greeted the deponent.

Deponent further states that he observed two (2) tables with over ten (10) people, handing the defendants, Kan Fan Chan and Qing Z. Zhang, a sum of United States Currency to play “Mahjong” which is a game of chance.

Deponent further states that he observed the defendant Kan Fan Chan hand the defendant Pan Yi Zhu, said United States Currency.

Deponent further states that he observed the defendant Pan Yi Zhu place said United States Currency on said tables and write entries on a betting slip notebook pad.

Deponent further states that he observed and recovered from said table seven hundred ninety ($790.00) Dollars United States Currency and said notebook pad.

Deponent further states that the defendant Liu al Hua admitted to him in sum and substance that he was sorry and that he will close the location tomorrow.

Deponent further states that his conclusion that the said betting slip notebook pad is a gambling record and that said records are commonly used as instruments of gambling, is based upon his experience and training as a police officer in the identification of gambling paraphernalia.

A person is guilty of Promoting Gambling in the Second Degree when “he knowingly advances or profits from unlawful gambling activity.” (PL § 225.05.) “Gambling” is defined as follows: “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.” (PL § 225.00[2] ).

Inasmuch as gambling' is a material element of the charge of Promoting Gambling in the Second Degree, the People must make a prima facie showing that the game or scheme in issue constitutes gambling. (People v. Giordano, 87 N.Y.2d 441, 640 N.Y.S.2d 432, 663 N.E.2d 588 [1995] ). Section 225.00(1) of the Penal Law defines a “Contest of chance” as “any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.”

While some games may involve both an element of skill and chance, if “the outcome depends in a material degree upon an element of chance,” the game will be deemed a contest of chance. (Donnino, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 39, PL § 225, at 355). “The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game?” (People ex rel. Ellison v. Lavin, 93 A.D. 292, 87 N.Y.S. 776 [1st Dept. 1904], rev'd on other grounds, 179 N.Y. 164, 71 N.E. 753). It follows then that wagering on the outcome of a game of skill is therefore not gambling as it falls outside the ambit of the statute. (People v. Stiffel, 61 Misc.2d 1100, 308 N.Y.S.2d 64 [App. Term 2d Dept. 1969]; People v. Mohammed, 187 Misc.2d 729, 724 N.Y.S.2d 803 [Crim. Ct. N.Y. County 2001]; People v. Fuerst, 13 Misc. 304, 34 N.Y.S. 1115 [County Ct. Queens County 1895]; see also, People ex rel. Ellison v. Lavin, supra at 170, 71 N.E. 753 [“games of chess, checkers, billiards and bowling [are] held to be games of skill.”] ). Three card monte, when played fairly, has been characterized by some courts as a game of skill (People v. Mohammed, supra; People v. Hunt, 162 Misc.2d 70, 616 N.Y.S.2d 168 [Crim. Ct. N.Y. County 1994] ), while other courts have characterized three card monte and other similar type shell games as games of chance. (People v. Denson, 192 Misc.2d 48, 50-52, 745 N.Y.S.2d 852 [Crim. Ct. N.Y. County 2002]; People v. Turner, 165 Misc.2d 222, 629 N.Y.S.2d 661 [Crim. Ct. N.Y. County 1995] ).

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] ). In defining “advances gambling activity,” Penal Law § 225.00[4] provides as follows:

[W]hen, acting other than as a player, [a person] 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 ․ 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.

Promoting Gambling in the Second Degree (PL § 225.05.) thus identifies various types of conduct which may constitute gambling activity and concludes with the “catchall phrase referring to conduct directed ‘toward any other phase of [a gambling] operation.’ ” (People v. Giordano, supra at 447, 640 N.Y.S.2d 432, 663 N.E.2d 588.) Pursuant to Penal Law § 20.00, a person who intentionally aids another person to engage in conduct constituting an offense, is criminally liable for such conduct when he acts with the requisite mental culpability.

Here, the accusatory instrument alleges that people were handing co-defendants money to play mahjong “which is a game of chance.” There is no support given for the claim that mahjong is a game of chance. Detective Adaszewski fails to state the basis for his conclusion about mahjong or otherwise indicate that he is trained and experienced in identifying gambling activity i.e. games of chance. (cf. People v. Kalin, supra ). Although the information provides the basis for his conclusion as to the betting slip notebook pad, if it were determined that mahjong is a game of skill and not of chance, mahjong would not constitute gambling no matter the surrounding circumstances, including the presence of gambling paraphernalia. (People v. Giordano, supra ).

It is noted that unlike other alleged gambling activity such as three card monte (People v. Denson, supra; People v. Mohammed, supra; People v. Turner, supra; People v. Hunt, supra ) and joker poker machines (People v. Herman, 133 A.D.2d 377, 519 N.Y.S.2d 550 [2d Dept. 1987]; Matter of Plato's Cave Corp. v. State Liq. Auth., 68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420 [1986]; People v. Delacruz, 23 Misc.3d 720, 872 N.Y.S.2d 876 [Crim.Ct., Kings County] ), there are no reported cases on mahjong and whether it is a game of skill or one of chance.

The exhibits attached to the People's affirmation in opposition do not warrant a different result as they are not part of the information or supporting deposition, as the information contained therein is hearsay, and as the documents are not otherwise admissible under some hearsay rule exception. (CPL §§ 100.40[1] and [4]; People v. Belcher, 302 N.Y. 529, 534-535, 99 N.E.2d 874 [1951]; People v. Casey, supra at 361, 717 N.Y.S.2d 88, 740 N.E.2d 233). Therefore, they have not been considered.

Accordingly, as the information fails to contain a factual basis for the detective's conclusion that mahjong is gambling, a material element of the charge, defendant's motion to dismiss the accusatory instrument for facial insufficiency is granted.

The People are granted leave to file a legally sufficient superseding information within thirty (30) days of the date of this decision. In the event the People timely file a legally sufficient superseding information, the remaining requests for relief are decided as follows:

BILL OF PARTICULARS

The People are ordered to provide a Bill of Particulars as required by CPL § 200.95, to the extent not already provided.

DISCOVERY

The People are directed to comply with the motion for discovery, pursuant to by CPL § 240.20, to the extent not already provided. The People are reminded of their continuing Brady obligations. (Youngblood v. West Virginia, 547 U.S. 867, 869, 126 S.Ct. 2188, 165 L.Ed.2d 269 [2006]; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ).

SUPPRESSION OF PHYSICAL EVIDENCE

Defendant has moved for suppression of physical evidence seized, specifically, the $790.00 and the notebook pad. The People oppose the motion. Defendant's motion to suppress physical evidence is granted to the extent that a Mapp Hearing is ordered. (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 [1961] ).

SUPPRESSION OF STATEMENT EVIDENCE

Defendant's motion to suppress statement evidence is granted to the extent that a Huntley/Dunaway Hearing is ordered. (People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 [1965]; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 [1979] ). The People oppose the motion.

SANDOVAL APPLICATION

The Sandoval motion is referred to the trial court for decision. (CPL § 240.43; People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974] ). Disclosure of the prior bad act evidence which the People will seek to introduce at trial for purposes of impeaching defendant's credibility, shall be made in accordance with the time frame set forth in CPL § 240.43.

RESERVATION OF RIGHTS

Defendant's motion to reserve the right to make further motions is granted to the extent permitted by CPL § 255.20(3).

DEMAND FOR RECIPROCAL DISCOVERY

The People's demand for reciprocal discovery is granted as required by CPL § 240.30.

This constitutes the decision and order of the court.

CHARLES S. LOPRESTO, J.