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People v. Delacruz

February 5, 2009

THE PEOPLE OF THE STATE OF NEW YORK
v.
RAQUEL DELACRUZ, DEFENDANT.



The opinion of the court was delivered by: Evelyn J. LaPorte, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The defendant, RAQUEL DELACRUZ, is charged with Possession of a Gambling Device (Penal Law § 225.30 [1]).

By Notice of Motion served and filed on September 23, 2008, she has moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL § 170.30 (1)(a) and § 170.35. She has also moved for speedy trial dismissal pursuant to CPL § 30.30. The People served and filed their Affirmation in Response on October 17, 2008. The defendant served and filed her Reply to the People's Response on November 13, 2008.

The information alleges that on or about May 2, 2008, at approximately 5:25 p.m. at 733 Knickerbocker Avenue in Kings County, New York State, a police officer observed a Joker Poker machine to be in the rear of the establishment at the aforementioned location. The information further alleges that the informant inserted money into the machine and received extended play without needing to insert any more money. The information goes on to allege that, based on the police officer's training and experience, he knew that the machine was designed for gambling. The information also alleges that the defendant stated in substance that she was the owner of the Joker Poker machine.

The information alleges, in pertinent part:

Deponent states that deponent observed a Joker Poker machine that was inside the location and recovered the above mentioned Joker Poker machine near the back of said location.

Deponent further states that Deponent is informed by Defendant's own statements that Defendant is the owner of said Joker Poker machine.

Deponent is further states (sic) that Deponent inserted a sum of United States currency into said machine and received extended play for no further payment.

The deponent further states that Deponent has had professional training as a police officer in the identification and operation of gambling devices, has previously made arrests for the criminal possession of a gambling devices and based on informant's experience the above-mentioned Joker Poker machine is a gambling device.

FACIAL SUFFICIENCY

A legally sufficient information must contain non-hearsay allegations establishing, if true, every element of the offense charged and the defendant's commission thereof. The allegations of the factual part of an information, together with those of any supporting depositions which may accompany it, must provide reasonable cause to believe that the defendant committed the crime charged. CPL § 100.40; § 70.10 (2). An information which fails to satisfy these requirements is jurisdictionally defective. CPL § 100.40 (1); § 100.15 (3); People v. Casey, 95 NY2d 354 (2000).

Defendant argues that the information is facially insufficient in that it fails to allege facts that establish the elements of Possession of a Gambling Device. Specifically, the defendant maintains that the People have not alleged that the game of Joker Poker is a game of chance, as opposed to being a game of skill which would not qualify as a "gambling device".

Gambling occurs when one 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 ยง 225.05. 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 ...


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