First Degree Promoting Gambling

When one graduates, goes to the next level, or raises their degree, it is universally accepted as a good thing. Having said that, your criminal lawyer or New York gambling crimes defense attorney will certainly tell you that should you “graduate” from a Second Degree Promoting Gambling investigation or arrest to a First Degree Promoting Grambling investigation, arrest or, even worse, indictment, your predicament has gone from bad to potentially horrendous. In fact, unlike misdemeanor Second Degree Promoting Gambling, New York Penal Law 225.05, Promoting Gambling in the First Degree, New York Penal Law 225.10, is a class “E” felony. Not only can a felony conviction result in the loss of many rights we all take for granted and derail certifications, licenses and legal status in the United States, at the time of sentencing a judge can send a you to prison for four years even without any prior contact with the criminal justice system. Your take home from this reality, among many, should be quite obvious. When charged with a felony gambling crime in New York City, Westchester County, Rockland County or elsewhere in the Hudson Valley, and whether prosecuted by an Assistant District Attorney or an Assistant NYS Attorney General, you are not merely fighting to protect your name, future and rights, but your freedom from incarceration.

• Second Degree Promoting Gambling: New York Penal Law 225.05
• Second Degree Possession of Gambling Records: NY Penal Law 225.15
• First Degree Possession of Gambling Records: NY Penal Law 225.20
• Possession of a Gambling Device: New York Penal Law 225.30
• New York Penal Law 225.25 & 225.32: Defenses to New York Gambling Crimes

New York Penal Law 225.10 has two distinct subsections. Irrespective of what subsection you may be accused of violating and regardless of what county or jurisdiction it is alleged to have occurred, as a preliminary matter you are guilty of First Degree Promoting Gambling when you knowingly advance or profit from an unlawful gambling activity. That is, if you materially assist in the gambling venture (maybe you have illegal card games at your apartment, arrange for handicapping sports betting, or advertise and solicit bets, for example) or you pocket some money or otherwise profit from the unlawful gambling.

Assuming this initial element is satisfied, prosecutors or Assistant District Attorneys in Manhattan, Brooklyn, Queens or any jurisdiction inside New York City or elsewhere in the State of New York must further prove beyond a reasonable doubt one of the following:

1. You advanced or profited from an unlawful gambling activity by engaging in bookmaking to the extent that you received or accepted more than five (5) bets collectively in an amount that exceeds five thousand dollars ($5,000.00) in any one day; or
2. You advanced or profited from an unlawful gambling activity by receiving, in connection with a lottery or policy scheme or enterprise, (a) money or written records from a person other than a player whose chances or plays are represented by the money or records or (b) in excess of five thousand dollars ($5,000.00) in any given day of money played in the scheme or enterprise.

Although prosecutors on the state level – District Attorneys and the New York State Attorney General – may target illegal and unlawful gambling rings, crews and groups both in New York, across the United States and even abroad by charging a gambling crime, its fairly typical that prosecutors flex their muscles by charging more serious offenses. Yes, Promoting Gambling in the First Degree is a “very real” felony that can land a first-time offender in prison for many years, but associated crimes are often more problematic. These offenses can include Enterprise Corruption and Money Laundering. Depending on the amount of the illegal proceeds (coupled with other elements) or if prosecutors can establish there was a defined and structured criminal enterprise, an accused could easily face a “B” felony. In such a case, four years in prison pales in comparison to the potential of twenty-five years in custody.

• New York Penal Law 460.20: Enterprise Corruption
• New York Penal Law Article 470: Money Laundering
• New York State Tax Law Article 1800: Criminal Tax Fraud

Beyond these obvious offenses, prosecutors may also pursue any number of NYS tax crimes. One of the more common offenses, and prosecuted in numerous degrees, is Criminal Tax Fraud pursuant to New York Tax Law Article 1800. Just like other theft related crimes, except the victim is New York State in lieu of a person or company, the dollar amount of the tax fraud relates directly to the potential incarceratory exposure in prison. Make no mistake. Any and all Tax Fraud Crime in New York can lead to jail, prison, and some form of custody.

Regardless of the additional crimes, if any, the District Attorney charges you with or presents to a Grand Jury, when a scheme involving gambling is prosecuted law enforcement routinely seizes personal and financial assets or freezes the same to eventually seek the forfeiture of your alleged ill-gotten gains. While you may challenge the asset forfeiture, work any disgorgement into restitution or part of a disposition, or you may fight this attempt as vigorously as you do the substantive criminal allegations, whatever your ultimate defense may be, it is imperative to identify and implement your best defense with your asset forfeiture attorney and gambling crimes defense lawyer as early in the process as possible to avail yourself of the best opportunity for success.

Simply, there is no quick fix to an investigation, arrest or indictment for violating New York Penal Law 225.10 or the myriad of equally and more serious crimes you can face when accused of unlawful gambling activities. There are some limited statutory defenses, but those are often not applicable. Instead, you and your criminal defense attorney should examine what role prosecutors intend to prove you had in the gambling operation. How is it that they intend on proving your involvement and liability? Are you an accomplice or directly responsible? Are there search warrants and wire taps? If you are outside of New York, how is it that prosecutors can prove jurisdiction over your conduct? If charged with Enterprise Corruption, is there a true structure of the crew and did you share in the same criminal goal? A mere fraction of the questions and issues that you and your criminal defense attorney must address, be proactive and diligent, not indecisive and reactionary.

• New York Gambling Crimes General Information Page: NY PL Article 225
• NewYorkCriminalLawyerBlog.Com – Who Can be Charged with Promoting Gambling
• NewYorkCriminalLawyerBlog.Com – Proper Pleading for Gambling Record Crimes

Identifying and implementing a defense to Promoting Gambling in the First Degree and associated crimes is not always easy, but a critically important early step in the defense process. Not doing so could be extremely costly to both your liberty and future. When it comes to your liberty and future, there is no substitute for knowledge, experience and advocacy. Let Saland Law’s New York criminal lawyers and former prosecutors be your best defense.

Contact the New York Promoting Gambling criminal defense lawyers and former New York prosecutors at (212) 312-7129 or contact us online today.