People v. Turner

Citation165 Misc.2d 222,629 N.Y.S.2d 661
Decision Date10 May 1995
Docket NumberAP-7
PartiesThe PEOPLE of the State of New York v. Bruce TURNER, Defendant
CourtNew York City Court

Robert M. Morgenthau, Dist. Atty. (Asst. Dist. Atty., William Schaeffer, of counsel), for the People.

Robert M. Baum, Legal Aid Soc. (Roma Baran, of counsel), for defendant.

LEE ELKINS, Judge.

The defendant herein has been charged by misdemeanor information with the crimes of possessing a gambling device [PL 225.30(2) ] and promoting gambling in the second degree [PL 225.05]. The information alleges that the police officer deponent saw the defendant "manipulating three bottle caps on top of a cardboard box with his hands and encouraging pedestrians to place bets by calling out in substance 'five bucks a bet' on a game commonly known as the 'the shell game'." The defendant, citing People v. Hunt, 162 Misc.2d 70, 616 N.Y.S.2d 168 [Crim.Ct.N.Y.Co.1994], contends that the information fails to state facts sufficient to constitute the crimes charged. Specifically the defendant argues that the information fails to allege facts constituting any form of gambling activity.

Hunt, supra, involved the game of three card monte, which is only a variation on the shell game at issue here, with cards substituted for shells. [People v. Brown, 112 Misc.2d 471, 472 n. 1, 447 N.Y.S.2d 129 [Crim.Ct.N.Y.Co.1982]; People v. Williams, 93 Misc.2d 726, 728, 402 N.Y.S.2d 310 [Crim.Ct.N.Y.Co.1978]]. In Hunt, the court held that three card monte is a game of skill and not of chance. The court wrote that "absent trickery or deceit on the part of the dealer, i.e., palmed cards, the contest pits the skill level of the dealer in manipulating the cards against that of the player in visually tracking the card. Played fairly, skill rather than chance is the material component of three card monte" [162 Misc.2d at p. 72, 616 N.Y.S.2d 168]. The court in Hunt concluded, therefore, that these are not "contest[s] of chance" [PL 225.00(1) ] and do not fall under the definition of gambling in the Penal Law. [PL 225.00(2) ] [Id. at p. 73, 616 N.Y.S.2d 168]

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, 34 N.Y.S. 1115 [Queens Co.Ct.1895]], as the court in Hunt noted. [162 Misc.2d at p. 73, 616 N.Y.S.2d 168] 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." [PL 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, 251 P.2d 926, 929 [Colo.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. [In Re Plato's Cave Corp. v. State Liquor Authority, 115 A.D.2d 426, 428, 496 N.Y.S.2d 436, aff'd 68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420] 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.

As noted by the court in Williams, which dismissed a prosecution for three card monte under an entirely different criminal statute, many courts in many countries over centuries have taken divergent views of the legality of three card monte and of the shell game. [People v. Williams, supra, 93 Misc.2d at pp. 728-729, 402 N.Y.S.2d 310]. Of the courts that have considered the issue, all agree on one point, that the dealer, by virtue of consummate skill in manipulating the cards or shells, creates an illusion, the placement of the cards or shells being entirely under the dealer's control. 1

The dealer's ability to control the game does not change the essential character of the contest, which, in this court's view, is a game of chance. The essence of the shell game is to stake a bet on the player's selection of the one shell, out of three, that contains an object. The game could be played without manipulating the shells at all; just as one might ask a child to choose which of two closed hands contains a treat. Obviously, no skill is required in making such a choice. In a shell game, the dealer's purpose in initially disclosing the location of the object and in then manipulating the shells is hardly to give the player a fair chance. Rather, as universally recognized [see, People v. Williams, supra, 93 Misc.2d at pp. 728-730, 402 N.Y.S.2d 310], the purpose of the disclosure and manipulation is to confuse the player and to create an illusion designed to convince the player that the object is within one of the empty shells. [see Metcalf v. State, 329 S.W.2d 824, 826 [Tenn.1959]] 2 This manipulation does not alter the essential character of the contest, however, since the player is always free to ignore the obvious and to select any of the three shells. In other words, the dealer's ability to control the game does not remove the element of chance from the calculus. The dealer's slight of hand may influence the player, but the dealer can neither predict nor control the player's response. The effect of the dealer's skill is merely to influence the odds. The outcome is still determined by the player's selection at random. As Judge Lang noted in People v. Williams, supra:

The skilled Monte dealer verifies the adage that the hand is quicker than the eye and provides practical proof of Heisenberg's uncertainty principle. The odds are clearly two to one against the player, but some dealers are so good at this trompe l'oeil that they induce the bettor to specifically pick a wrong card rather than guess one out of three, thus increasing the odds against the bettor. [93...

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    • U.S. District Court — Eastern District of New York
    • August 21, 2012
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    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 6, 2013
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    • U.S. District Court — Eastern District of New York
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    • August 6, 2013
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