People v. Cea
| Decision Date | 04 October 1988 |
| Docket Number | BT-5 |
| Parties | The PEOPLE of the State of New York, v. Joyce CEA, Defendant |
| Court | New York City Court |
Robert M. Morgenthau, Dist. Atty., New York County (Sheri Holland, New York City, of counsel), for people.
Herman I. Graber, New York City, for defendant.
Introduction
This is a motion to dismiss an information on the ground it is facially insufficient. The motion is made pursuant to CPL §§ 170.30(1)(a) and 170.35(1)(a) and alleges the information fails to meet the requirements of CPL §§ 100.15(3) and 100.40(1)(b) that it allege "facts of an evidentiary character supporting or tending to support the charges" which facts give "reasonable cause to believe the defendant committed the offense charged."
The defendant is charged with violating P.L. Sections 225.15, 225.30 and 225.05, possession of gambling records in the second degree, possession of a gambling device and promoting gambling in the second degree. The charges arise from allegations that on March 15, 1988 an undercover police officer placed a policy wager with the defendant, and upon the defendant's arrest a slot machine and Mutual Race Horse Policy slips were in her possession because they were in an area over which she "exercised control."
The accusatory instrument filed in this case reads as follows:
Deponent states that defendant, with knowledge of the contents and nature thereof, possessed a writing paper, instrument, and article of a kind commonly used in the operation, promotion and playing of a lottery, policy scheme and enterprise, and that defendant possessed a slot machine and that defendant knowingly advanced and profited from unlawful gambling activity, in that deponent placed a wager with defendant and in exchange for a sum of U.S. Currency, received one MRHP slip representing a policy wager and that deponent recovered from an area over which defendant exercised control, approximately 309 MRHP slips, representing in excess of 500 plays, a sum of U.S. Currency and one slot machine.
The defense position is there are no facts of an evidentiary character alleged supporting the two possessory offenses because the statement the contraband was "recovered from an area over which defendant exercised control" is a legal conclusion, not a statement of evidentiary facts. Further, the defense claims there are no facts of an evidentiary character alleged to support the promoting gambling charge because no facts are alleged to show the defendant acted "other than as a player," in accepting the wager, which is an element of the crime charged.
The People's response asserts the following: "The mere allegation that the defendant exercised control over the area in which the contraband was recovered provides reasonable cause that the defendant committed the offense in question." The People also claim the allegation the undercover officer placed a policy wager with the defendant for a sum of money is a sufficient factual allegation to support the charge of promoting gambling in the second degree.
The seminal case in the area of whether a complaint is facially insufficient is People v. Dumas, 68 N.Y.2d 729, 506 N.Y.S.2d 319, 497 N.E.2d 686 (1986), in which the Court of Appeals upheld the dismissal of a misdemeanor complaint charging the defendant with criminal sale of marijuana in the fourth degree on the ground it failed to contain evidentiary facts supporting the officer's conclusion that the substance the defendant sold was marijuana. Emphasizing the importance of complying with CPL §§ 100.15(3) and 100.40(1)(b), in People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987), the Court of Appeals held the...
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