People v. Giordano

• Decision Date: 28 December 1995
• Citation: 663 N.E.2d 588,640 N.Y.S.2d 432,87 N.Y.2d 441
• Parties: , 663 N.E.2d 588 The PEOPLE of the State of New York, Respondent, v. John GIORDANO, Joseph Giordano and Philip Cestaro, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 432

640 N.Y.S.2d 432

87 N.Y.2d 441, 663 N.E.2d 588

The PEOPLE of the State of New York, Respondent, v. John GIORDANO, Joseph Giordano and Philip Cestaro, Appellants.

Court of Appeals of New York.

Dec. 28, 1995.

[87 N.Y.2d 443] [663 N.E.2d 590] Richard A. Rehbock, New York City, for appellants.

[87 N.Y.2d 444] Denis Dillon, District Attorney of Nassau County, Mineola (Lawrence J. Schwarz and Peter A. Weinstein, of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Judge.

This is a gambling prosecution involving three bookmakers. They operated primarily in Manhattan but they frequently "hedged" or "laid off" bets in Nassau County through an accomplice named Rothman. Following a joint trial, each was convicted of four counts of promoting gambling in the first degree and one count of conspiracy in the fifth degree. On appeal, a divided Appellate Division dismissed the conspiracy count and otherwise affirmed. ¹

The principal issues before us are (1) whether Nassau County had geographical jurisdiction to prosecute defendants when the only conduct there consisted of telephone calls from Manhattan hedging bets made in Manhattan and (2) whether the convictions for promoting gambling must be reversed because of the trial court's instructions on jurisdiction. We conclude there should be an affirmance.

I

Defendants John Giordano, Joseph Giordano and Philip Cestaro, along with Bernard Rothman, conducted a bookmaking operation in Manhattan. The Giordano brothers managed the business and Rothman worked for them. Cestaro was a runner. On several occasions in the spring of 1989, Rothman placed telephone calls from Manhattan to the "Meacham" bookmaking operation in Nassau County to "hedge" or "lay off" bets placed in Manhattan. He did this when bets received by the Manhattan operation were not evenly placed against the two teams in a particular sporting event and it became necessary for defendants to shift their risk of loss by placing bets on the favored team with another bookmaking operation. In that way, if the Manhattan bettors won, defendants would also win on the hedge bets they had placed in Nassau County or elsewhere and they would thus have a source of funds to pay the Manhattan winners.

Following trial the jury found that defendants promoted gambling in the first degree and conspired to promote gambling in the fifth degree and the court sentenced them to fines and terms of incarceration.

II

The State Constitution and the common law provide defendants with the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v. Ribowsky, 77 N.Y.2d 284, 291, 567 N.Y.S.2d 392, 568 N.E.2d 1197; People v. Moore, 46 N.Y.2d 1, 6, 412 N.Y.S.2d 795, 385 N.E.2d 535; NY Const, art I, § 2). The burden rests on the People to establish geographical jurisdiction by a preponderance of the evidence (People v. Ribowsky, 77 N.Y.2d, at 291-292, 567 N.Y.S.2d 392, 568 N.E.2d 1197, supra ). To establish jurisdiction on the promoting gambling counts here, the People invoked the statutory provision which establishes a county as the proper venue when the defendant, either directly or by an accomplice, engages in conduct "within such county sufficient to establish * * * [a]n element of such offense" (CPL 20.40[1][a]; People v. Tullo, 34 N.Y.2d 712, 714, 356 N.Y.S.2d 861, 313 N.E.2d 340; see also, People v. Guidice, 83 N.Y.2d 630, 635-636, 612 N.Y.S.2d 350, 634 N.E.2d 951).

Defendants contend, however, that promoting gambling in the first degree has only one element, knowingly advancing or profiting from unlawful gambling activity by engaging in bookmaking, and that Nassau County lacked geographical jurisdiction to prosecute them because there was no proof that they accepted bets, i.e., engaged in bookmaking, in Nassau County (see, Penal Law § 225.00[9] ). We conclude that advancing or profiting from unlawful gambling activity is a separate element of promoting gambling in the first degree and, if established by the evidence, could support jurisdiction in Nassau County.

Article 225 of the Penal Law sets forth a framework establishing two promoting gambling offenses and various other gambling-related offenses. Under the statutory scheme a mere "player" or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime. The basic inquiry in each case is whether the game or scheme in issue constitutes gambling and whether defendant's conduct is other than as a player.

The core crime, section 225.05, provides that a person is guilty of promoting gambling in the second degree when "he knowingly advances or profits from unlawful gambling activity." 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]. The statute identifies various types of conduct which may constitute gambling activity, including conduct "toward the arrangement of any of its financial or recording phases", and concludes with the catchall phrase referring to conduct directed "toward any other phase of [a gambling] operation." Section 225.05 imposes misdemeanor liability for the entire spectrum of gambling activity, and is augmented by section 225.10 which criminalizes specialized kinds of felonious bookmaking and policy activity not included within it (see, Staff Notes of New York State Commission on Revision of Penal Law and Criminal Code, McKinney's Spec Pamph [1964]. The article also sets forth various possessory offenses (see, e.g., Penal Law §§ 225.15, 225.30).

Section 225.10 is structured to incorporate the exact language of section 225.05 as its initial element of advancing gambling activity, and then adds two subdivisions identifying additional elements which enhance the crime to first degree. Manifestly, second degree promoting, as defined in section 225.05, is a lesser included crime of first degree gambling, as set forth in section 225.10, and, on the record before us, defendants could have been prosecuted for it in Nassau County. Indeed, defendants requested that the court instruct the jury that it was a lesser included offense.

The language of section 225.10 requiring interpretation here provides:

"A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:

"1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars; or

"2. * * * "

The opening paragraph and subdivision (1) describe different conduct; the use of the word "by" in the statute to define how the enhanced liability obtains does not, as defendant maintains, collapse two elements into one. One "advances gambling" activity by engaging in any conduct which materially aids a gambling operation (Penal Law §§ 225.05, 225.00[4], in this case by hedging bets. Thus, Rothman's conduct constituted promoting gambling in the second degree, necessarily establishing his commission of the first element of the first degree crime. His liability was raised to the felony level because he engaged in bookmaking as a business.

To read Penal Law § 225.10(1) as a one element crime, "advancing unlawful gambling by bookmaking", would make the statute redundant and render the language in the opening paragraph surplusage. That paragraph holds defendant guilty of promoting gambling when he "advances gambling activity", but "bookmaking" is defined as "advancing gambling activity by unlawfully accepting bets" as a business (see, Penal Law § 225.00[9] ). Accordingly, the statute would have no different meaning if the opening language were excised from it as defendants would do. Under well-established principles of interpretation, effect and meaning should be given to the entire statute and " 'every part and word thereof' " (Sanders v. Winship, 57 N.Y.2d 391, 396, 456 N.Y.S.2d 720, 442 N.E.2d 1231). We should assume the Legislature had a purpose when it used the phrase "advances or profits from unlawful gambling activity" in the first paragraph and avoid a construction which makes the words superfluous (see, Matter of Branford House v. Michetti, 81 N.Y.2d 681, 688, 603 N.Y.S.2d 290, 623 N.E.2d 11). These rules of statutory construction lead us to conclude that the opening language of the statute and that of subdivision (1) address two distinct types of conduct, and must therefore be two elements of the crime. Indeed, the statute, far from encompassing only one element, promoting gambling by bookmaking, as defendant maintains, includes four: not only the elements of bookmaking and advancing unlawful gambling, but also receiving five or more bets totalling more than $5,000 on a given day and knowingly profiting from the bookmaking operation when the bets are received (see, 3 CJI[NY]PL 225.10[1], at 1862-1865).

Thus, we conclude that conduct advancing gambling activity and engaging in a bookmaking business are two separate elements. If conduct establishing one of these two elements occurred in Nassau County, that County had jurisdiction to prosecute defendants for the whole crime.

Inasmuch as neither defendants nor their associates accepted or received bets in Nassau County, the People necessarily relied on evidence of the other element, that defendants promoted gambling in Nassau County by laying off bets there. The evidence of the People's case rested almost entirely on the testimony of two undercover officers and tapes of intercepted telephone calls to the Meacham operation. It established that defendants' accomplice, Rothman, placed phone calls from Manhattan to the Nassau County bookmaking operation to lay off bets on the days specified in the indictment. By hedging bets with another bookmaker, Rothman advanced gambling activity within the meaning of the statute because he (1) acted...