The defendant is charged with one count of Possession of Gambling Devices (P.L. §225.30 [2]) and one count of Loitering (Remaining in a Public Place for Gambling) (P.L. §240.35 [2]). He now makes this omnibus motion seeking 1) dismissal for facial insufficiency, 2) dismissal in the interest of justice pursuant to C.P.L. §170.40., 3) a Sandoval hearing, 4) a Ventimiglia hearing, and 5) disclosure of Brady material. The People consent to Sandoval and Ventimiglia hearings but otherwise oppose the motion. FACIAL INSUFFICIENCY Defendant seeks dismissal of the charges for facial insufficiency. The sufficiency of the information must be determined by a reading of the face of the instrument itself, together with any supporting depositions accompanying it (People v. Casey, 95 NY2d 354, 361 (2000); People v. Grabinski, 189 Misc 2d 307 [App. Term, 2d Dept 2001]). To be sufficient on its face, an information must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant’s commission thereof (P.L. 100.40 [c]); People v. Alejandro, 70 NY2d 133 [1987]). In support of this branch of the motion the defendant does not address any specific elemental deficiency in the accusatory but merely argues that the complaint as written and charged is legally insufficient and unconstitutional and does not on its face establish that the defendant committed the offenses charged. In opposition to this branch of the motion, the People argue that the accusatory instrument provides sufficient factual and non-hearsay allegations which would establish, if true, every element of each of the offenses charged and the defendant’s commission thereof. Possession of Gambling Devices A person is guilty of possession of gambling devices in violation of P.L. §225.30 (a) (2) “when, with knowledge of the character thereof, he…possesses…any…gambling device, believing that the same is to be used in the advancement of unlawful gambling activity.” Gambling device “means any device, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity” (P.L. §225.00 (7)). A person “advances gambling activity” when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity” (P.L. 225.00 (4)). “Player” is defined in P.L. 225.00 (3) as: [A] person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity…. Accordingly, per the statutory language, ”a mere ‘player’ is not subject to criminal liability for possession of a gambling device” (People v. Buckhannon, 48 Misc 3d 1230 (A) [Crim Ct. Bronx Co. 2015]; Matter of Victor M., 9 NY3d 84 [2007] (defendant observed playing dice and exchanging United States currency was just a player). In People v. Buchannon, the information charged that the defendants were observed in the lobby of a building “in a circle” and that each of them threw United States currency onto the floor in front of them. The information further stated that the defendants took turns throwing the dice onto the floor in the middle of the circle and that the defendants collected the money from the floor. Relying on the Court of Appeals holding in Victor M., 9 NY3d 84 [2007], wherein the court held “this statute cannot be fairly read to apply to every player in a dice game who touches a dice”, the Buckhannon court found that”the factual allegations of the accusatory instrument are devoid of information demonstrating that the defendant was engaged in any conduct, other than as a player.” Here Mount Vernon Police Officer Lawrence alleges that the defendant “while adding and abetting and acting in concert with one another and fourteen (14) separate individuals….were observed taking turns rolling dice and exchanging U.S. currency with one another. The parties were holding money in their hands while rolling dice”. The officer did not allege that the defendant was taking a percentage of the winnings unrelated to his personal winnings. Accordingly, this charge must be dismissed for facial insufficiency (see People v. Greenhill, 58 Misc 3d 1204 (A)). Loitering A person is guilty of loitering in violation of P.L. §240.35 when he “2. Loiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernaila.” Penal Law §225.00 (2), provides that “[A] person engages in gambling when he 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.” Penal Law §240.00 provides that a “[p]ublic place means a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways…playgrounds, and hallways, lobbies and other portions of apartment houses….” Here the information charges that the defendant was observed gambling with dice in exchange for money on in the vicinity of 156 East 3rd Street, Mount Vernon, NY, a public street. Accordingly, the court finds that the accusatory instrument is sufficient to establish reasonable cause to believe that the defendant loitered for the purpose of engaging in gambling activity (People v. Buckhannon, 48 Misc 3d 1230 (A)). DISMISSAL IN THE INTERST OF JUSTICE Defendant also seeks dismissal in the interest of justice. A criminal charge may be dismissed in furtherance of justice pursuant to C.P.L. §170.40 where there exists “some compelling factor or circumstance clearly demonstrating that conviction or prosecution of the defendant would constitute or result in an injustice”(People v. Clayton, 41 AD2d 204 (2nd Dept 1973)). Such relief is to be exercised sparingly, “in the unusual case that cries out for fundamental justice beyond the confines of conventional considerations” (People v. Belge, 41 NY2d 60 (1976)). The information charges that the defendant was observed rolling dice and exchanging money with his co-defendants and 14 separate individuals in the vicinity of 156 East 3rd Street, Mount Vernon, New York on May 12, 2020 at 6:00pm. Defendant contends the charges should be dismissed because the offenses are not serious and there was no damage to person or property. Defendant argues that he was merely standing on a public street exercising his rights of freedom of expression and assembly. Counsel also argues that the other defendants in this case, charged with the same offense have already had their cases dismissed upon motion. The People oppose the motion, arguing that the defendant has glossed over the seriousness of the offenses charged. The People argue that the defendant is charged with an A misdemeanor, which allows for a period of incarceration of up to one year. Accordingly, the People argue that Possession of a Gambling Device is a serious offense. The People argue that these types of crimes victimize society and that there is ample evidence of guilt, as the people observed the defendant playing dice with money in his hands. The People further argue that the defendant has a lengthy rap sheet, spanning 30 years with multiple felony convictions. The People argue that dismissal of the defendant’s case would send a message to the community that gambling and loitering in public during on a public street is condoned. The People further argue that the other defendants who were charged had their dockets dismissed were not observed actually gambling with the dice in their hands and exchanging money. Accordingly, the People argue that there is no basis to dismiss the charges in the interest of justice. After consideration of all the factors contained in C.P.L. §170.40, the court finds that dismissal of the remaining charge, Loitering, is not warranted under these circumstances. Loitering statutes, which have “been around a long time have been regarded as worthwhile tools in preventing minor incidents or undesirable conduct and inchoate crimes in public areas” (People v. Nowak, 46 AD2d 469, 471 [4th Dept. 1975]. The rationale for all loitering statutes “is the prevention of minor offenses or incipient crime in places frequented by the public for the protection of the public (People v. Ocasio, 186 Misc 2d 822, 825 [City Ct. Rochester 2001] (citations omitted). Defendant’s motion to dismiss the Loitering charge in the interest of justice is denied. Defendant’s motion for a Sandoval hearing is granted and shall be renewed before the trial Judge. The motion for a Ventimiglia hearing is denied at this time, since the People do not represent that they are seeking to introduce evidence of defendant’s prior bad acts on their direct case or for impeachment purposes. In the event the People later seek to introduce such evidence, the defendant may renew the motion (CPL 210.40). Defendant is granted leave to renew his application for Brady material before the trial judge. This Court recognizes that the People are under a preexisting duty to disclose any material or exculpatory evidence to an accused where there is a general request or no request, and no additional order of the Court in respect thereto is necessary (People v. McCann, 115 Misc 2d 1025 [Sup. Ct. Qns. Co. 1982]; People v. Hvizd, 70 Misc 2d 654 [County Ct. Westchester 1972])). This constitutes the Decision and Order of this Court. Dated: June 21, 2021
