People v. Wilkerson

• Decision Date: 24 April 1973
• Citation: 342 N.Y.S.2d 936,73 Misc.2d 895
• Parties: The PEOPLE of the State of New York, Appellant, v. Samuel WILKERSON, Defendant-Respondent.
• Court: New York County Court

Page 936

342 N.Y.S.2d 936

73 Misc.2d 895

The PEOPLE of the State of New York, Appellant, v. Samuel WILKERSON, Defendant-Respondent.

Monroe County Court.

April 24, 1973.

[73 Misc.2d 896] Jack B. Lazerus, Monroe County Dist. Atty. (Melvin Bressler, Rochester, of counsel), for the People.

George W. Conaty, Jr., Rochester, for defendant-respondent.

DECISION

DAVID O. BOEHM, Judge.

This is an appeal from an order of the Rochester City Court, dismissing an information against defendant Samuel Wilkerson.

Defendant Samuel Wilkerson and five others, Scott Sherman, Morris Holiday, Charles Gross, Larry Spaight and Auther Wyatt, were arrested December 11, 1971 in a house in the City of Rochester and charged with violating section 44--12 of the Code of the City of Rochester. Wilkerson was charged with being a keeper of a gambling establishment in violation of paragraph A of section 44--12 and the others were charged with being inmates of a gambling establishment in violation of paragraph B.

The informations lodged against the defendants allege that they were observed inside the premises gathered around a felt covered table, engaging in a game of dice and that there was a quantity of dice on the table and money being exchanged. The information against Wilkerson alleges that he was in charge of the game.

Defendants moved to dismiss the informations upon the ground of the ordinance's unconstitutionality. The City Court, in its decision dated January 18, 1972, found section 44--12 to be unconstitutional in its entirety and granted the motion to dismiss the informations against all of the defendants.

However, the only order in the Record on Appeal is one dismissing the information against Samuel Wilkerson. There are no orders as to the other defendants. Apparently none were entered. Also, there is only one Notice of Appeal in the Record and it appeals solely from the Wilkerson order. Accordingly, the only appeal that may be considered is from the order dismissing the information against Samuel Wilkerson dealing with paragraph A of section 44--12.

Chapter 44 of the Code of the City of Rochester was adopted by the City Council on September 8, 1964. Section 44--12 deals with gambling activity and paragraph A states:

'No person shall knowingly keep or use, or permit to be kept or used, any gambling device or devices or gambling establishment or establishments.'

Section 44--1 defines 'Gambling Device' as follows:

'Shall mean any apparatus, article, instrument, slot machine, table or any written, printed, marked or in any manner filled-in bet slip, parlay sheet or slip, pool sheet or slip, or any other paper, writing or document representing a bet or wager on any sporting event, amateur or professional or any horse race or any occurrence to be determined by chance, lot, unknown or contingent event at a time subsequent to placing of a wager thereon, or any combination of the aforementioned to be used in any act or acts of unlawful betting, gambling, playing or wagering for money or anything of value.'

Section 44--1 defines 'Gambling Establishment' as follows:

'Shall mean any room, building, structure, shelter, or vehicle, or any part thereof, of any description, within or upon which, any act or acts of unlawful betting, gambling, playing or wagering for money or anything of value are conducted.'

The determination of the issues raised in this appeal will necessarily depend upon whether there is a general State law covering the same field and, if so, whether the city ordinance is inconsistent with the State legislation or whether the State, by the passage of such legislation, has manifested an intention of pre-empting the field.

The power of a municipality to enact local laws is conferred by Article IX of the State Constitution. However, such local laws may not be inconsistent with a general law of the State relating to the same enumerated subject. Section 2(c), par. (10) lists 'protection, order, conduct, safety, health and well-being of persons or property' among the subjects enumerated. This same power to legislate is made subject to the same limitations in section 20, par. 13 of the General City Law.

The Constitution defines a general law as one which 'in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages.' (Art. IX, sec. 3, subd. (d), par. (1); see also, McKinney's Statutes, sec. 32(b)).

Thus, the power of local government to legislate is limited by the requirement that its local laws not be in conflict with the State Constitution nor inconsistent with the general laws of the State (People v. Lewis, 295 N.Y. 42, 64 N.E.2d 702; Wholesale Laundry Bd. of Trade v. City of New York, 17 A.D.2d 327, 234 N.Y.S.2d 862, affd., 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623; People v. Del Gardo, 1 Misc.2d 821, 146 N.Y.S.2d 350; People v. Kearse, 56 Misc.2d 586, 289 N.Y.S.2d 346).

It is beyond cavil that the Penal Law of the State is a general law. It has general application to all of the inhabitants of the State and it has been specifically so held and applied (Town of Babylon v. Conte, 61 Misc.2d 1055, 307 N.Y.S.2d 735; People v. Conte, 64 Misc.2d 573, 315 N.Y.S.2d 348; People v. Del Gardo, Supra; People v. Kearse, Supra).

It is also well settled law that where a local law is inconsistent or in conflict with a State law of general character and State-wide application, the local law is invalid. A local law, therefore, may not prohibit what a State law permits (Wholesale Laundry Bd. of Trade v. City of New York, Supra; Kindermann Fireproof Storage v. City of New York, 39 A.D.2d 266, 333 N.Y.S.2d 854; People v. Kearse, Supra; Town of Babylon v. Conte, Supra; People v. Conte, Supra; Kim v. Town of Orangetown, 66 Misc.2d 364, 321 N.Y.S.2d 724).

If we look to the history of State anti-gambling legislation, there is obvious an intention on the part of the Legislature not to make the casual player, contestant or bettor criminally liable.

In 1933, the Court of Appeals, in discussing the anti-gambling laws contained in the former Penal Law, pointed out:

'. . . (C)asual betting or gaming by individuals as distinguished from betting or gambling as a business or profession, is not a crime (citations). The distinction between the two species has long 'obtained in this state where ordinary betting has never been made a crime . . . while the keeping of a gambling house, selling lottery tickets and the profession of a common gambler have been subjected to severe punishment.''

(Watts v. Malatesta, 262 N.Y. 80, 82, 186 N.E.2d 210, 211).

Thus, in a case almost on all fours with the one under consideration, where defendants were found in an apartment sitting and standing around a large table at which a card game was in progress and on which there was a quantity of money, poker chips and four decks of playing cards, an information charing them with being common gamblers in violation of section 970 of the former Penal Law was dismissed. 'Participation in a gambling game' the court said, 'or even in a series of gambling games on the same terms as other players, for amusement or recreation, is lawful in this State. What is prohibited . . . is professional or commercial gambling.' (People v. Marconi, 27 Misc.2d 348, 349, 217 N.Y.S.2d 232, 233; see also People v. Bright, 203 N.Y. 73, 96 N.E. 362; People ex rel. Guido v. Calkins, 9 N.Y.2d 77, 211 N.Y.S.2d 166, 172 N.E.2d 549).

The new Penal Law continues this distinction and maintains the exemption from criminal liability of 'bare 'gambling' or 'player' activity.' (Commission Staff Notes, Penal Law, Art. 225; see also, People v. Di Carlo, 62 Misc.2d 638, 309 N.Y.S.2d 791).

The Legislature not only has excluded the 'player' from the reach of the Penal Law, but in order to make quite certain that there be no doubt of its intention to do so, went on to define what a 'player' is (Penal Law, section 225.00, par. 3).

However, section 44--12 of the Code of the City of Rochester, in complete disregard of the State legislation, makes such activity illegal. For example, paragraph C would make illegal a sporting bet between golfers on the outcome of their game if they played within the Rochester city limits in the Durand Eastman Park or Genesee Valley Park golf courses.

Yet, it was held as far back as 1908 that such conduct was never contemplated as the kind of activity which the Legislature deemed it necessary to curb (People ex rel. Sterling v. Nassau County, 60 Misc. 326, 112 N.Y.S.2d 154).

The only time a city may enact laws which are more restrictive than general State legislation on the same subject, is 'where there is a real distinction between the city and other parts of the State. They must be based upon special conditions existing in the city.' (Matter of Kress & Co. v. Dept. of Health, 283 N.Y. 55, 59, 27 N.E.2d 431, 432).

The district attorney has not offered, either in his brief or in his argument, anything to show that there is a special situation unique to the City of Rochester which requires the existence of the ordinance sought to be preserved. To say, as he does, that the City Council's purpose was to solve a 'local problem which, in the City Council's opinion, required...