People v. Hunt

• Decision Date: 10 August 1994
• Docket Number: AP-9
• Citation: 616 N.Y.S.2d 168,162 Misc.2d 70
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Eric HUNT, Defendant
• Court: New York City Court

Page 168

616 N.Y.S.2d 168

162 Misc.2d 70

The PEOPLE of the State of New York, Plaintiff, v. Eric HUNT, Defendant.

Criminal Court of the City of New York New York County, AP-9.

Aug. 10, 1994.

Robert M. Morgenthau, Dist. Atty., New York County (Todd Greeley, of counsel), New York City, for the People.

Robert M. Baum, The Legal Aid Soc. (Arnold J. Levine, of counsel), New York City, for defendant.

SHERYL L. PARKER, Judge.

Defendant is charged with possession of a gambling device (PL § 225.30[2] and promoting gambling in the second degree (PL § 225.05). The charges stem from allegations that defendant was running a game of three-card monte.

Defendant moves to dismiss the accusatory instrument on the ground that it is facially insufficient. For the reasons set forth below, defendant's motion is granted.

The factual portion of the accusatory instrument reads as follows:

Deponent states that he observed the defendant standing alone behind a cardboard box with a small crowd standing around the defendant. Deponent further states that he observed the defendant manipulating cards by shuffling three cards, and encouraging pedestrians to place bets by handing an unapprehended individual a sum of U.S. currency, and stating in substance, "He won again." Deponent further states that based upon his training and experience, the defendant was engaged in an illegal street card game commonly known as "three card monte". Deponent further states that he recovered three playing cards from on top of the cardboard box.

To be sufficient on its face, an information must state evidentiary facts which provide reasonable cause to believe that the defendant committed the offenses charged. CPL 100.40(1)(b). In addition, an information must contain non-hearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof. CPL 100.40(1)(c); 100.15(3). 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 that the failure of an information to contain such non-hearsay allegations sufficient to establish both reasonable cause to believe that defendant committed the crime charged, as well as legally sufficient or "prima facie " evidence supporting that belief, renders the information jurisdictionally defective.

A person is guilty of promoting gambling in the second degree "when he knowingly advances or profits from unlawful gambling activity." PL § 225.05. The crime of possession of a gambling device is set forth in PL § 225.30, and states that a person is guilty "when, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of: (2) Any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity."

Pivotal to the case at hand, is whether the act of playing three-card monte constitutes "gambling" as defined in PL § 225.00(2). Gambling occurs when a person "stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome." PL § 225.00(2). A contest of chance is defined as "any contest, game, gaming scheme or gaming device in which 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).

Defendant argues that three-card monte is a game of skill, and as such, falls outside the definition of gambling. The People counter by contending that a common sense understanding of the game, i.e. that the player has a one in three chance of winning, supports the conclusion that the game is one of chance. The People also argue that the question of whether it is a game of skill or chance is properly resolved by the trier of fact.

Although some games may involve both an element of skill and chance, where "the outcome depends in a material degree upon an element of chance," the game will be deemed a contest of chance. Donnino, Practice Commentaries (McKinney's Cons.Laws of N.Y., Book 39, PL § 225, at 104); People v. Cruz, NYLJ, June 11, 1993, at 22, col. 3 (Crim. Ct.N.Y.Co.).

Three-card monte is a game in which a dealer shows a player three cards and designates one of them as the "court" card. The dealer then turns the cards face down and moves them around on a flat surface. After watching the cards shuffled about, the player attempts to chose the "court" card. If he chooses this card, he wins. If not, the dealer wins. The dealer banks on his ability to manipulate the cards faster than the player can track the cards with his eye, while the player stakes his wager on the opposite being true.

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. See Metcalf v. State of Tennessee, 205 Tenn. 598, 329 S.W.2d 824 (1959); cf. People v. Brown, 112 Misc.2d 471, 447 N.Y.S.2d 129 (Crim.Ct.N.Y.Co.1982) (implicit finding by the court that three-card monte constitutes gambling). ¹

In some instances, the dealer has an advantage over the player, even when no trickery is involved. This occurs where there exists a disparity between the players' skill level. Differing skill levels,...