Raid on NYC clubs underway right now.

[TMTTR]

[ QUOTE ]
Do you agree the best defense is arguing the legality of time collection?

[/ QUOTE ]

Unfortunately, I find that argument thin as well. The statute says that profitting occurs when a person "accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity." The language appears to apply equally as well to time charges as to raked pots.

Here is my idea of what might work: If you started a true "private club" with a nominal membership fee (let's say $10 per year). Members would then be charged a fee for all time using the club facilities (let's say $10 per hour); that is, when you walk in the door, you sign in and you sign out and pay for your time when you leave. The club should have a variety of activities available. Maybe a couple of pool tables, chess sets, a tv lounge, and (of course) a poker room. However, regardless of the activities you partake in, the time charge is the same. There are many inherent problems here, but if those doing thing other than playing poker are charged the same amount as those playing poker, you might have a good argument that you are accepting money for something other than gambling activities... who knows... but a DA may still prosecute...

[*TT*]

[ QUOTE ]
[ QUOTE ]
Do you agree the best defense is arguing the legality of time collection?

[/ QUOTE ]

Unfortunately, I find that argument thin as well. The statute says that profitting occurs when a person "accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity." The language appears to apply equally as well to time charges as to raked pots.

Here is my idea of what might work: If you started a true "private club" with a nominal membership fee (let's say $10 per year). Members would then be charged a fee for all time using the club facilities (let's say $10 per hour); that is, when you walk in the door, you sign in and you sign out and pay for your time when you leave. The club should have a variety of activities available. Maybe a couple of pool tables, chess sets, a tv lounge, and (of course) a poker room. However, regardless of the activities you partake in, the time charge is the same. There are many inherent problems here, but if those doing thing other than playing poker are charged the same amount as those playing poker, you might have a good argument that you are accepting money for something other than gambling activities... who knows... but a DA may still prosecute...

[/ QUOTE ]

This was the structure that "He" was discussing with me at the time, but his concern was that competitive business kept him from applying his idea. Also he wasn't willing to test it in court, it could hurt him as an owner and as a lawyer, getting disbarred wasn't worth the risk.

[Skallagrim]

If they had taken the time to read the links, I think the posters above would see the value of my position. I am not the only one working ON THIS ONE STRATEGY (not to the exclusion of others) to keep/make poker legal. It has relevance at the federal level too, and right now the reported appeals court decisions are 2 for poker being mostly skill, and 2 for poker being more chance.

A club operator MAY be risking jail, the liklihood of a jail sentence is not within my ability to predict not knowing how NY courts usually operate. That is why a club operator needs his own lawyer to discuss this with.

A player who could show standing (the interruption of the game, loss of funds, etc...should do the trick, again a NY lawyer would have to say for certain) would be risking nothing other than the expense of the litigation. My reading of the NY law regarding players is the same as TTMTTR's: no criminal liability possible.

It constantly amazes me how many people here dismiss this argument. So I guess pretty much all the posts in this website (other than gossip and rakeback) are really meaningless because its all about the cards you get dealt right? Oh sure, some skill, but its really all about cards.....Wish I hadnt wasted all that money on poker books, especially the ones published by 2+2, since its a game of chance. If only I had the luck that Bruson or Ivey have....

Or maybe its just pessimism about courts? I am glad Thurgood Marshall didnt think that when he filed Brown v. Board of Ed. If you think courts cant be convinced, how do you think you will convince your legislators, especially if allowing poker also means allowing slots and blackjack (which it must, if all are "games of chance").

Look, it has taken some time for poker to become popular enough that real statistical studies are possible and that a formal, logical proof could be constructed. But the result of the proof is that poker is about 25 to 33% chance. A factor that is only 1/4 to 1/3 of the game is not a "material" factor, at least to most courts the word material means "major" or "predominant" factor.

And, finally, no one has yet come up with a poker club that can make a profit without a rake or hourly fee.

So your choices are as follows:
1. Continue with the status quo,
2. Get an amendment to the NY consitution allowing poker outside of Indian reservations, or
3. Get on board with the skill v. chance argument.

Assuming you are not content with option 1, which of the other 2 do you really think has a better chance of success?

Skallagrim

[kranmars]

[ QUOTE ]
Anyone heard from the dealers/management? Are they out yet? I got to know some of them pretty well and don't see them lasting too long in jail.

[/ QUOTE ]


We all got out between 1-and 2am saturday. I was first in and last out. Everyone held up just fine. I'm just sorry it wasn't a little longer. Started liking those cheese sandwiches!!!!!!

[Vidocq]

I would like nothing more than for some of these arguments to succeed. I learned to play way back when at the D___ Club and hate the fact that I now have to drive 2+ hours for a game. There are a couple of problems, however.

First, the skill versus chance argument has very little hope of success. There are several NY precedents on point. Here are a couple.

In People v. Turner, 629 NYS2d 661 (Crim. Ct. City N.Y. 1995) the court held:

[ QUOTE ]

The principle that a game of skill is not within the compass of a gambling statute is one of long standing in this State [see, People v. Fuerst, 13 Misc. 304, 307, 34 N.Y.S. 1115 [Queens Co.Ct.1895]], as the court in Hunt noted. [162 Misc.2d at p. 73, 616 N.Y.S.2d 168] Gambling differs from other kinds of contests in that in gambling "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) ] Games of chance range from those that require no skill, such as a lottery [see, e.g. Ginsberg v. Centennial Turf Club, 251 P.2d 926, 929 [Colo.1952]], to those such as poker or blackjack which require considerable skill in calculating the probability of drawing particular cards. Nonetheless, the latter are as much games of chance as the former, since the outcome depends to a material degree upon the random distribution of cards. [In Re Plato's Cave Corp. v. State Liquor Authority, 115 A.D.2d 426, 428, 496 N.Y.S.2d 436, aff'd 68 N.Y.2d 791, 506 N.Y.S.2d 856, 498 N.E.2d 420] The skill of the player may increase the odds in the player's favor, but cannot determine the outcome regardless of the degree of skill employed.



[/ QUOTE ]

As to the position of the owner of a club, this was addressed in People v. Dubinsky,, 31 NYS2d 23 (Ct. Spec. Sess. Bronx 1941) where the Court held:

[ QUOTE ]

In answering this question, the courts of many states including our own seem to be unanimous in their holding that where a host receives some consideration or some payment for permitting a card game to be played or other gaming to take place in his premises, that that constitutes gambling.
.

Where the proprietor of a place not kept for the purpose of gambling allows gambling to be carried on in which he participates or from which he in some way receives a benefit, such proprietor may be convicted of keeping a gambling place. 15 A.L.R. 1203; Lyman v. State, 1909, 90 Ark. 596, 119 S.W. 1116; Ransom v. State, 1890, 26 Fla. 364, 7 So. 860; Hamilton v. State, 1881, 75 Ind. 586; State v. Cooster, 1860, 10 Iowa 453; St. Louis Fair Ass'n v. Carmody, 1899, 151 Mo. 566, 52 S.W. 365, 74 Am.St.Rep. 571; State v. Chase, 1908, 17 N.D. 429, 117 N.W. 537, 17 Ann.Cas. 520; Boswell v. State, 1912, 67 Tex.Cr.R. 561, 150 S.W. 432; Watts v. Malatesta, 1933, 262 N.Y. 80, 81, 82, 186 N.E. 210, 88 A.L.R. 1072, and cases cited.
.
In this particular case, we are therefore confronted with the next question-- what constitutes 'keeping a room used for gambling' within the meaning of the Statute?
.

Webster defines a 'keeper' as 'one who has the care, custody or superintendence of anything.' The word 'keeper' does not necessarily imply either ownership or the right to participate in the profits of the thing kept. Stevens v. People, 67 Ill. 587, 590. The particular Statute, section 973, supra, does not say, 'one who uses a place for gambling,' but it does say, one 'who keeps a * * * place * * * for gambling.' It is evident from a reading of the defendant's brief that defendant confuses in this action, the player in the game, with the operator of the game, or the one who permits the game to be knowingly played in his premises.
.

At common law, keeping a gaming table for profit was not in itself a crime. People v. Sergeant, 8 Cow. 139. It was, however, subsequently made a crime both in England and in this State by subsequent penal enactment. See Penal Laws, New York, State, Section 973 and 33 Hen. 8, c. 9, § 11. The Statute in this State is designed to entirely prohibit gambling. This the Legislature seeks to do by curbing the game keeper and professional gambler. In this way the Legislature intended to protect the public morals. The Court of Appeals stated this very succinctly in the case of Watts v. Malatesta, 1933, 262 N.Y. 80, 81, 82, 186 N.E. 210, 88 A.L.R. 1072, when the Court said: "the statute against betting and gaming was enacted as a protection of the public morals. The intention of the legislature was to discourage and repress gambling in all its forms, and the law * * * is to be construed so as to accomplish, so far as possible, the suppression of the mischief against which it was directed.' Luetchford v. Lord, 132 N.Y. 465, 469, 30 N.E. 859, 861, citing Ruckman v. Pitcher, 1 N.Y. 392, 396, and Storey v. Brennan, 15 N.Y. 524, 527, 69 Am.Dec. 629. But casual betting or gaming by individuals, as distinguished from betting or gambling as a business or profession, is not a crime. People v. Stedeker, 175 N.Y. 57, 67 N.E. 132; People v. Bright, 203 N.Y. 73, 96 N.E. 362, Ann.Cas.1913A, 771; People ex rel. Collins v. McLaughlin, 128 App.Div. 599, 113 N.Y.S. 188.
.
'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.' People v. Stedeker, supra, page 62 of 175 N.Y., 67 N.E. 132, 133.
.

Discouragement of casual betting has never gone beyond the point of making recovery by a winner impossible upon default by the loser (Penal Law, §§ 991, and 992); and of compelling return to the loser of voluntary payments made by him (Penal Law, §§ 994 and 995). Attack or defense in a civil action has been regarded as adequate--'as one of the best and surest means' (Ruckman v. Pitcher, supra page 405 of 1 N.Y.)--for the suppression of that kind of betting. The evil which the law chiefly condemns (New York Const. art. 1, § 9) and makes criminal (Penal Law, art. 88) is betting and gambling organized and carried on as a systematic business. The reason seems obvious. Curb the professional with his constant offer of temptation coupled with ready opportunity, and you have to a large extent controlld the evil.
.

'It is clear that in the eye of the law the professional gambler and his customer do not stand on the same place. They are not in pari delicto.' It is to be pointed out to the defendant that he is charged, not with being a player, but with being the keeper of the place where the game is being played. The law not only in this State but in other jurisdictions distinguishes between the two.
.

A similar defense was raised by the plaintiff in Hitchins v. People, 39 N.Y. 454. There the Court stated: 'The counsel for the plaintiff insists that to bring the plaintiff within the provisions of the statute, the room or building must be principally used for gambling; that permitting gambling therein by the owner only occasionally, is not sufficient. In this I think the counsel [is] mistaken. The language of the statute is, 'Shall knowingly permit the same to be used or occupied for gambling.' The design of the statute was to entirely prohibit, not to regulate or restrain, excessive gambling, and this is the clear import of the language used.'
.

And the gambling prohibited does not refer merely to gambling where payment is made in money; the Statute is all inclusive and refers to any gaming for any prize or consideration. 'It has long been settled, however, that playing any game for cigars or drinks, or under an agreement that the loser should treat to cigars or drinks or other refreshments, is gambling.' Zotalis v. Cannellos, 138 Minn. 179, 164 N.W. 807, 808, L.R.A.1918A, 1066; State v. Wade, 43 Ark. 77, 51 Am.Rep. 560. See also People v. Klenakis, First Dept., 250 App.Div. 847, 296 N.Y.S. 819, which affirmed a conviction in Special Sessions, New York County, no opinion.
.

As pointed out above, the defendant fails to make the distinction between the one who participates in the gambling and the one who permits the gambling operation to take place in his premises. In the instant case, it is obvious that the defendant comes within the latter category. Attention is again called to the language of the Statute, Penal Law, Section 973. The Statute says clearly that if the defendant knowingly permits his premises to be used for gambling, he is guilty of a misdemeanor. There is no ambiguity here. The corpus of the crime is knowingly permitting the premises to be used for gambling purposes. The defendant's contention that the corpus delicti is the taking of some profit by the defendant from the gambling operation is untenable particularly in view of the clear language of the Statute. Brill Cyclopedia of Crim.Law, Vol. 2, Sec. 1095.
.

If then the corpus delicti is the act of knowingly permitting the gambling to take place in the premises, then the alleged admission of the defendant as stated by the police officer, to wit: that he, the defendant, received the sum of 25 cents from the winner of each winning hand, is clearly admissible and the reception of such alleged admission in evidence does not violate section 395 of the Code of Criminal Procedure. This section states that the admissions of the defendant are not sufficient to warrant his conviction without additional proof that the crime charged has been committed.
.

In interpreting this section, we are forced to ask ourselves:
.

(1) What kind of additional proof is necessary to establish the commission of the crime, and
.

(2) Need the corpus of the crime be proved independently of the admissions to establish the commission of the crime?
.

The examination of the authorities leads us to the conclusion that the corpus of the crime need not be proved independently of the admissions and the additional proof necessary need be only of such a character which would reasonably tend to prove the crime and thus corroborate the confession.
.

In this connection, the case of People v. Brasch, 1908, 193 N.Y. 46, 85 N.E. 809, 814, is very enlightening. In that case, the defendant was convicted for the murder of his wife. The evidence established that he had a motive for killing her; that he took her for a walk along a canal at a certain date and hour; that three days later her body was found drowned; that there were no marks of violence on her body and that the defendant confessed to pushing his wife into the canal. On appeal, the question was raised as to whether or not the defendant's confession admitted into evidence was sufficient compliance with section 395, C.C.P. There the Court of Appeals held: 'It is not necessary that it [the corroborating evidence] should be sufficient to convict the defendant independent of the confession. The question is whether there is any evidence, in addition to the confession, reasonably tending to prove the *241
crime and thus corroborate the confession.' Citing People v. Jaehne, 103 N.Y. 182, 8 N.E. 374.
.

The admission by the defendant to the police officer that he took a profit for permitting the game to be played in his home was properly received in evidence, and such testimony, if credible, is evidence of the fact alleged.
.

There is, in addition, sufficient other evidence to show that the defendant's apartment was knowingly being used by him for doing the acts prohibited by the Section. In order to support a conviction under this Section, it is sufficient to show that the cards, money and tokens were in use in connection with the apartment for doing the prohibited acts or that from the circumstances surrounding the same, a fair inference could be drawn that they were or might have been so used unlawfully. The People must prove the existence of a condition from which it may be fairly inferred that these articles have been used in violation of the provisions of the section defining the offense. People ex rel. Wilson v. Flynn, 72 App.Div. 67, at page 69, 70, 76 N.Y.S. 293. For an analogous situation see People v. Reed, 46 App.Div. 625, 61 N.Y.S. 520, and People v. Birnbaum, 208 App.Div. 476, 203 N.Y.S. 697.
.

The inferences drawn in such cases are those of fact and not of law and are to be drawn, if at all, by the Trial Judge. Tenement House Dept. v. McDevitt, 215 N.Y. 160, 109 N.E. 88, Ann.Cas.1917A, 455; People v. Van Bramer, 235 App.Div. 287 257 N.Y.S. 99, affirmed 261 N.Y. 505, 185 N.E. 714.
.

In view of the foregoing, the conviction of the defendant is proper. The motion in arrest of judgment is therefore denied and the defendant is sentenced to pay a fine in the sum of Twenty-Five Dollars, or in lieu thereof, to serve a term of five (5) days in the Workhouse.


[/ QUOTE ]

These are older cases from lower courts but they do reflect the current state of NY law.

Second, as has been noted, getting things changed requires changing the state constitution, which specifically bans "gambling" and requires the legislature to pass laws to that effect. Given the gridlock of NY state politics, such an amendment is extremely unlikely.

[VeraN]

I doubt convincing the court that poker is a game of skill versus a game of chance will change the NY legislature's view towards gambling.

There had been some successful cases of players claiming that poker is a game of skill versus a game of chance, but even if a person takes the case to the NY Court Of Appeals, it's still highly unlikely that gambling will become legalized in NY.

If gambling became legal, investors would build casinos and that would have a detrimental impact on the city's finance.

[jjshabado]

[ QUOTE ]

If gambling became legal, investors would build casinos and that would have a detrimental impact on the city's finance.

[/ QUOTE ]

How?

[TMTTR]

[ QUOTE ]
I doubt convincing the court that poker is a game of skill versus a game of chance will change the NY legislature's view towards gambling.

There had been some successful cases of players claiming that poker is a game of skill versus a game of chance, but even if a person takes the case to the NY Court Of Appeals, it's still highly unlikely that gambling will become legalized in NY.

If gambling became legal, investors would build casinos and that would have a detrimental impact on the city's finance.

[/ QUOTE ]

A little clarification: if the Courts determined that poker was not "gambling" under the statute -- which is what is being advocated by Skallagrim (I hope I got the name right) -- then poker rooms might automatically become legal under the current law and the legislature would have to take affirmative steps to re-outlaw it.

You are mixing up the legalization of poker (which could hypothetically be accomplished by a favorable court ruling and is all we are looking for) and the legalization of all gambling (which would definitely take an amendment to the state constitution).

[Skallagrim]

I am aware of the NY case on skill from the lower court. Note it equates blackjack and poker and treats them as basically the same. Do you think they are the same? I dont. Poker has something blackjack doesnt: psychology.

The simple point is this, in Poker you can win by getting the other players to fold. When all but one have folded, and neither the player's cards nor the final card(s) are shown, how can anyone say logically that the "cards have determined the outcome of that hand?" They cant. And thats the basis of my proof that poker is more skill than chance, because (at least in holdem, 7stud and omaha - I have not seen stats for other games) THE MAJORITY OF HANDS (ABOUT 60%) ARE FOLDED TO THE WINNER.

No one has yet used the proof I have devised in Court, and still the courts of Missouri and California have held poker is more skill than chance.

The proof I have developed was not used in the NY case cited above either (nor in the recent NC case), so that judge obviously did not rule on the argument I have proposed.

Although I thought of it first, the argument is also now in the hands of professionals at Harvard U. who are further refining it and amassing the statiscal proof from online play.

And as a political matter, consider this: as noted by others, changing the NY consititution is a highly unlikely. But if you agree poker is a skill game then IT IS NOT COVERED BY THE BAN. And so you can still have all your laws against sportsbetting, slots, AND blackjack. You just allow card rooms, same as California.

So would legislators rally to ban just poker? If so, then why not also ban bridge or cribbage for money, scrabble for money, and all other skill games for money? Why not make it illegal to bet on a game of golf?

Dont dismiss this outright. I am not saying that victory here is inevitable, I am saying it is possible and its worth the fight. On all levels, getting poker viewed as a game of predominantly skill is essential both politically and legally.

Just cause you didnt think of it doesnt mean it wont work. I suspect had you 2 TTs been around at the time, you would have spent just as much time telling the pinball guy (from the post above) that he had no chance and should just give up.

Skallagrim

[TMTTR]

From this site:

[ QUOTE ]
There is an abiding misconception in the gambling community about the legal history of games like poker in the State of California. It is improperly assumed that poker is permitted because it is a game of skill, as opposed to a game of chance. Misstatements abound that California courts have so held.
.

The truth is that California law bans (i) most lotteries, (ii) a few specific games and (iii) all unlicensed “banked” or “percentage” games played with cards or dice. There is no mention of “games of skill” in the last two categories The “raked” games are all played for money where the host, or “house,” makes money on the game other than as a mere player competing on equal terms with the other players. All other games are legal.


[/ QUOTE ]

I am not 100% sure what that means, but it is interesting in the context of this debate.

Also, the words of the NY statute do not talk about balancing the amount of skill and amount of chance involved. The outcome of a single hand of poker -- or even a session of poker -- "depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor." Those are the words and that is why the skill vs. chance argument in NY ultimately fails.

Cliff notes : The fact that poker is not a "game of chance" is not the principle reason why poker is legal in California and is not a very helpful argument in New York.