Published on:

225.05 and 225.30 of the Penal Law


Numerous defendants were arrested in a series of raids in Chinatown, carried out by police officers armed with search warrants.

A New York Criminal lawyer said that the amended informations charge the defendants with the crimes of promoting gambling and possession of gambling devices in violations of sections 225.05 and 225.30 of the Penal Law, in that each defendant acted as a ‘Dealer,’ ‘Cutter,’ ‘Manager/Moneyman’ or ‘Security’; listing the gambling activities as ‘Poker,’ ‘Fantan’ and ‘Dominoes.’

In these omnibus motions the defendants move to dismiss the accusatory instruments upon the grounds (1) the specified gambling statutes are unconstitutional, and (2) the ‘People are guilty of selective and discriminatory prosecution.’ In the alternative the defendants move for (a) a preliminary hearing pursuant to section 170.75 of the Criminal Procedure Law, and (b) the suppression of the evidence seized.

The defendants contend the statutes are constitutionally void for vagueness.

First they argue that the term ‘materially aids’ is not further defined and is therefore unconstitutionally vague. The word obviously has its everyday meaning. Webster’s New Word Dictionary’s relevant definition of the word ‘materially’ is ‘to a great extent; substantially; considerably.’

‘The doctrine of ‘vagueness’ does not mean that the fact that the Penal Law has not specifically defined a key word in the statute, it becomes constitutionally defective. A lack of precision in statutory language does not automatically mean that the requirements of due process have been offended. While the Constitution requires that criminal statutes define the conduct to be punished, the Constitution does not require impossible standards. As our Supreme Court recently said ‘The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.’

Secondly, the defendants argue in their motion papers that the conduct penalized ‘is likewise not identified, because the Legislature in exemplifying such conduct, states the examples and then states before, ‘includes but is not limited’ to the examples later given in the statute.’

Accordingly, the motions to dismiss the informations upon the ground that sections 225.05 and 225.30 of the Penal Law are unconstitutional, are denied.

The motions to dismiss the informations upon the grounds that the People are guilty of selective and discriminatory prosecution is denied.

The defendants argue that they ‘have reason to believe that they are being unduly harassed because of their heritage.’ To invoke the defense of discriminatory prosecution one must prove that the selection of the defendants for prosecution was deliberately based on their race or religion. ‘The presumption is always that a prosecution for violation of a criminal law is undertaken in good faith and in nondiscriminatory fashion for the purpose of fulfilling a duty to bring violators to justice’. It is not enough to allege intentional and purposeful discrimination, but the defense must ‘present Facts sufficient to raise a reasonable doubt about the prosecutor’s purpose’.

The only facts alleged are that five or more groups of Asiatic-Americans were charged with violating the gambling statutes in a three-month period and that ‘defendants have reason to believe that there have not been that same number of prosecutions for these sex crimes in the whole Borough of Manhattan.’ ‘Upon the meagre preliminary showing made here’ this court will not order a hearing, and these motions are accordingly denied.

The defendants request preliminary hearings despite the language of Criminal Procedure Law, section 170.75, specifically excluding persons charged with gambling offenses from a right to same.

‘A defendant who has been arraigned in New York criminal court upon an information which charges a misdemeanor Other than one defined in article two hundred twenty-five of the penal law or in the multiple dwelling law, may, before entering of a plea of guilty or commencement of trial, request a hearing to determine whether there is reasonable cause to believe that he committed such misdemeanor.’

In a case, the United States Supreme Court held that the Constitution does not require an Adversary determination of probable cause. The court held that the Fourth Amendment only requires a state to ‘provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty’. The defendants having all been released on their own recognizance, they are not subject to any significant restraint of their liberty and therefore are not constitutionally entitled to even the limited Fourth Amendment judicial determination provided for in the decision.

The court has approached the issue before it, bearing in mind the strong presumption that a duly enacted statute is constitutional and that any invalidity of the law must be demonstrated beyond a reasonable doubt.

The New York Court of Appeals recently discussed the applicable tests to be employed. In a case, the court said: ‘In measuring (the) claim of a denial of equal protection, it is necessary to consider various standards of review. It has been observed that there is hardly a law on the books that does not affect some people differently from others. Under traditional analysis, the equal protection clause does not deny to States the power to treat different classes of persons in different ways, But a classification must be reasonable, not arbitrary, and have a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. A State does not violate the guarantee merely because the classifications made by its laws are imperfect, and a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

The principle purpose of CPL § 170.75 is clear. It grants the right of a defendant to an early hearing by the criminal court to determine if there is reasonable cause to believe that a crime has been committed by the defendant. It follows therefrom, that upon a finding of no reasonable cause the case is dismissed. While there are those who find the law an ‘anachronism’, and having no rational basis and others have urged its retention, prepared by Committee on Criminal Courts, Law and Procedure of the Association of Bar of the City of New York) its validity has not been questioned. ‘The clear legislative intent appears to have been to afford a defendant the benefit of scrutiny of the charges by the Criminal Court measured by the standard of reasonable cause’.

This right to a preliminary hearing, once having been granted by the Legislature, it has been identified by the U.S. Supreme Court as such a ‘critical stage’ in the prosecution as to require appointed counsel. Not only was it determined to be critical because a finding of no probable cause meant that the defendant would not be tried, but since ‘Alabama allow(s) the suspect to confront and cross-examine prosecution witnesses the suspect’s defense on the merits could be compromised if he had no legal assistance for exploring or preserving the witnesses’ testimony’.

CPL § 170.75 was derived from section 40 of the New York City Criminal Courts Act. The New York Criminal Courts Act was enacted in 1910. Prior to 1960 All defendants charged with misdemeanors were entitled to either a trial before a magistra or at defendant’s option to a trial in the Court of Special Sessions. In 1962, when the Magistrate’s Court was merged with the Court of Special Sessions to form the New York City Criminal Court, this limiting provision as to defendants charged with gambling offenses was carried into section 40 of the New York City Criminal Courts Act.

When section 40 of the New York City Criminal Court Act was amended in 1965, it was accompanied by a ‘Memorandum of Legislative Representative(s) of (the) city of New York’. It states the reasoning behind the multiple dwelling misdemeanors being excluded from the provisions of section 40.

This proposed amendment is designed to expedite the disposition of misdemeanor charges involving violations of the Multiple Dwelling Law. At present, when person is brought before the New York City Criminal Court and charged with a violation of the Multiple Dwelling Law constituting a misdemeanor,

This procedure burdens the crowded calendars of the three judge panels and encumbers the single judge parts with preliminary hearings. The effect of these protracted proceedings is to delay the correction of the violations.

A small percentage of our Multiple Dwelling prosecutions are now tried in the three judge panels of the New York City Criminal Court and experience has proven that such percentage contains the hard core of chronic violators who avail themselves of every opportunity to avoid compliance with the requirements of the law.

There are as many, if not more defendants accused of other non-violent crimes such as violations of the Health Code, Sabbath Laws and Prostitution, all of whom are entitled to a preliminary hearing. The exclusion of alleged gamblers from this same right is, if not arbitrary, at least not reasonable.

The District Attorney submits that if the court takes judicial notice of the fact that these cases seldom result in incarceration in New York City, and that the usual disposition is a conditional discharge or fine, the rationale test is met. The court has taken judicial notice of these factors.

The court has also taken judicial notice of the fact that violations of most of the other non-violent crimes mentioned above result in similar dispositions. To ask the court to assume that these factors were considered by the Legislature as a rationale for the classification under review is without foundation.

In the opinion of this court, all persons accused of misdemeanors, regardless of type, volume or punishment imposed, are similarly situated with respect to the primary statutory objective of CPL 170.75. Whatever differences do exist between gambling crimes and other sex crimes, they are not reasonably related to the purposes of this Act.

The Court therefore constrained to hold that that part of CPL 170.75 which excludes from a right to a hearing those charged with violating article two hundred twenty-five of the penal law is unconstitutional, as violative of the Equal Protection Clauses.

In light of the recent Court of Appeals decision, the issue is raised as to whether the search warrants and the accompanying affidavits are too indefinite regarding the phrase ‘any other person present’ in the warrants.

The search warrants and affidavits issued in this case do comply with the standards of the Nieves decision.

The affidavits contain sufficient information to establish that probable cause did exist to believe that illegal gambling was occurring on the premises outlined in the affidavits and search warrants. The affidavits delineated in detail the charact of the premises, its location, size, areas to be searched, means of access, neighborhood, and other relevant factors.

The location of the premises, the descriptions, and the type of activity alleged to have been observed clearly reduced any risk that an innocent person would be swept up in a gambling raid of any of the four places in question.

The defendants further urge a hearing to determine the truthfulness of the affidavits upon which the search warrants were issued. CPL § 710.60 provides that the motion papers ‘must contain sworn allegations of fact.

If you have legal problems which are criminal in nature, don’t hesitate to consult our New York Criminal Attorneys here in Stephen BIlkis and Associates. We will provide you an advice which will be helpful to your predicament. If you were accused of driving while intoxicated, we also have New York DWI Lawyers who will represent you before the Courts.

Published on:

Comments are closed.

Contact Information