People v. Chilli

• Decision Date: 18 March 1966
• Citation: 267 N.Y.S.2d 990,49 Misc.2d 540
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Joseph CHILLI, Joseph Giddio, Charles Gemelli and Alphonse Gemelli, Defendants.
• Court: New York City Court

Page 990

267 N.Y.S.2d 990

49 Misc.2d 540

The PEOPLE of the State of New York, Plaintiff, v. Joseph CHILLI, Joseph Giddio, Charles Gemelli and Alphonse Gemelli, Defendants.

Criminal Court of the City of New York, New York, County.

March 18, 1966.

Frank S. Hogan, Dist. Atty. (Benjamin Zinkin, Asst. Dist. Atty., of counsel), for the People.

James Schenker, New York City, for defendants Joseph Giddio and Joseph Chilli.

Salvatore T. De Matteo, Brooklyn, for defendants Charles Gemelli and Alphonse Gemelli.

WILLIAM E. RINGEL, Judge.

The defendants moved to controvert the search warrant issued herein and to suppress the items seized thereunder (Code Cr.Proc. sec. 807). The warrant directed a search and seizure of 'written records and other paraphenalia and equipment, used and possessed unlawfully in connection with illegal bookmaking operations'. The only description of the items to be seized are described in the supporting affidavit as 'Football Pool Tickets.'

At the hearing the evidence disclosed that the Football Pool tickets are printed sheets of paper containing the names of various football teams, amateur and professional, scheduled to play on a certain date together with the 'point spread' between opposing teams.

Winners of these football matches may be selected by circling certain numbers printed on the bottom of each sheet. The selection of a certain number of winning teams entitles one to a certain number of points, as printed on the top of each ticket.

The evidence also indicated that the defendants printed and distributed these pool tickets. No evidence was adduced indicating that they were used in connection with any bets or wagers, nor does the supporting affidavit contain any such facts.

The principal question to be decided is whether the printing or mere possession of these football pool tickets, without more, is a sufficient lawful predicate upon which a search warrant may be issued.

Section 792 C.C.P. provides that a search warrant may be issued for the seizure of fruits, instrumentalities or evidence of crime and for contraband. (United States v. Nirenberg, D.C., 19 F.R.D. 421; People v Carroll, 38 Misc.2d 630, 238 N.Y.S.2d 640; cf., People v. Grossman, 45 Misc.2d 557, 257 N.Y.S.2d 266).

It is obvious that these football pool tickets are not fruits, instrumentalities, contraband or evidence of crime.

The Defendants are charged with bookmaking (Penal Law, secs. 986, 986-b) while it is true that these pool tickets may be used in such unlawful activity there is no evidence that they were so used or intended for that purpose (People v. Smoke, 38 Misc.2d 939, 239 N.Y.S.2d 230).

A comparable situation was presented in People v. Rodriguez (Manuel), (Crim.Ct.), 267 N.Y.S.2d 304, involving the printing of policy slips. In that case the Court said (p. 306): 'Absent a wager, however,--and in the case at bar, it is conceded that no wager had been made--the bolipol booklet is not a record of anything. It necessarily follows that possession by defendant of unplayed boli-pol booklets was not the possession contemplated by Section 975 of the Penal Law.'

So too, in the case at bar, the mere possession of football pool tickets which contain no evidence of any bet or wager is no evidence of pool-selling or bookmaking any more than...