People v. Brown
| Decision Date | 04 February 1982 |
| Citation | 447 N.Y.S.2d 129,112 Misc.2d 471 |
| Parties | The PEOPLE of the State of New York v. Henry BROWN, Defendant. |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (Peter Nichols, New York City, of counsel), for the People.
Legal Aid Society (Audrey Harrington, New York City, of counsel), for defendant.
The defendant is accused of the class A misdemeanors of promoting gambling, second degree (Penal Law § 225.05) and possession of a gambling device (Penal Law § 225.30). He moves, pursuant to the standards of CPL 100.40, to dismiss the information for insufficiency on its face.
The information alleges that "defendant, acting in concert with two (2) others not apprehended, knowingly advanceand profitfrom three (3) card monte in that defendant acted as lookout for the two (2) others and shouted police when deponent approached, causing the two (2) others to flee with their cards and money."
Defendant argues that the factual allegations fail to establish defendant's commission of every element of the offenses charged. The first count of promoting gambling in the second degree requires allegations that defendant "knowingly advances or profits from unlawful gambling activity." 1 PL § 225.05. The pleading states as much in the statutory language. But defendant contends that his personal actions, alleged in the information, fall short of the statutory definition of advancing gambling activity. Simply, he states that inducing flight is not the equivalent of any of the activities defined as advancing gambling (Penal Law § 225.002 Defendant ignores the charge that he was "acting in concert."
Penal Law § 20.00 provides:
"When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."
The defendant allegedly acted as a lookout for his accomplices: When the police approached, he warned the others, who thereupon fled with the cards and money. The defendant, by aiding and abetting his co-perpetrators, is guilty as a principal as if he had personally committed the acts ascribed to them. People v. Liccione, 63 A.D.2d 305, 312-313, 407 N.Y.S.2d 753 (4th Dept. 1978), affd. 50 N.Y.2d 850, 430 N.Y.S.2d 36, 407 N.E.2d 1333 (1980) and cases cited; People v. Henry, 18 A.D.2d 293, 296, 239 N.Y.S.2d 146 (4th Dept. 1963). Indeed, as a lookout defendant was a participant in the criminal conduct of his companions, an accomplice as a matter of law, and himself criminally liable as a principal. People v. Basch, 36 N.Y.2d 154, 157, 365 N.Y.S.2d 836, 325 N.E.2d 156 (1975); People v. Capobianco, 18 Misc.2d 217, 192 N.Y.S.2d 308 (County Ct., Schenectady County, 1959).
By charging that defendant, acting in concert, aided his fellow monte players in their gambling activities, particularly by acting as their lookout, the information sufficiently alleges facts supporting every element of the misdemeanor of promoting gambling in the second degree.
The information is also sufficient on its face to sustain the second count of possession of a gambling device. Penal Law § 225.30, in pertinent part, provides:
"A person is guilty of possession of a gambling device when, with knowledge of the character thereof, he ... possesses ... (2) any ... gambling device, believing that the same is to be used in the advancement of unlawful gambling activity."
The defendant disclaims liability under this section because he, personally, never had actual possession of the cards or money nor such control thereof as to be in constructive possession. Again, this argument ignores defendant's liability pursuant to Penal Law § 20.00. As a principal responsible for the acts of his co-perpetrators, defendant had as much actual possession as they did. People v. Liccione, supra, and People v. Henry, supra. See also People v. Feliciano, 32 N.Y.2d 140, 142, 344 N.Y.S.2d 329, 297 N.E.2d 76 (1973) (); People v. Passero, 83 A.D.2d 769, 443 N.Y.S.2d 481 (4th Dept. 1981) ().
Thus, the second count is likewise sufficiently pleaded.
Accordingly, defendant's motion to dismiss the...
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