People v. Fitzgerald

56 Misc. 2d 511, 288 N.Y.S.2d 856, 1968 N.Y. Misc. LEXIS 1807

• Court: Utica City Court
• Decided: January 19, 1968
• Status: Published

Opinion

Harold H. Hymes, J.

The defendants above named have moved for dismissal of an information charging them with violation of section 225.05 of the Penal Law, to wit, promoting gambling in the second degree; That section states “ A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity. ’ ’

They object to the information on the ground that the defendants are charged with advancing the ‘‘ unlawful gambling activity of bookmaking”, but that there is no statement that the “ bookmaking ” was being carried on as a business, rather than in a casual or personal fashion.

These are all new sections of the Penal Law which have yet to face interpretation by judicial decision. There are many kinds of offenses set forth in the article on ‘ ‘ Gambling ’ ’. Of utmost importance in considering this article is section 225.00, which lists definitions of terms.

Subdivision 9 of section 225.00 of the Penal Law makes the following definition “‘Bookmaking’ means advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion, upon the outcomes of future contingent events.”

Subdivision 4 of section 225.00 defines “Advance gambling activity” and states that “A person ‘ advances gambling activity ’ when, acting other than as a player, he engages in conduct which materially, aids any form of gambling activity ’ ’.

The argument of the defendants would require that the definitions of terms set forth in the Penal Law be repeated verbatim in the information. Such requirement would merely obfuscate and clutter the pleadings in criminal cases. This is what the revised Penal Law has tried to eliminate.

The term “bookmaking” has a definite prescribed meaning in the Penal Law (§ 225.00, subd. 9). Any defendant may read that section to know what is meant by the term “ bookmaking ” when it is used in an information. To repeat the definition of “ bookmaking ” in the information would be redundant.

These, of course, are preliminary motions designed to bring about the dismissal of these informations before .the introduction of any evidence. What may be required at a trial to meet the charge of “promoting gambling” or of “bookmaking” is a matter which would not be reached until the trial of the issues.

A reading of the informations and of the pertinent sections of the Penal Law convinces this court that the charges in the information are set forth with legal sufficiency.

The motions to dismiss on the above-stated ground are therefore denied.