New York Gambling Crimes: Statutory Defenses

Not every crime in New York has a “built in” statutory defense. Gambling crimes in New York, however, do have that added protection in limited cases. Before addressing these defenses as defined in the New York Penal Law, remember that they are not your only defense. For example, as a preliminary matter, how can law enforcement – the police or prosecutors – corroborate your criminal acts? Was a search warrant executed at your residence or office? Are you named in that warrant? Is there surveillance or wires (on your phone) of you committing certain acts or records of financial transactions to your accounts? How, if at all, did you benefit and what was your role – if any – in the alleged unlawful gambling ring or enterprise? Remember, the burden always remains with prosecutors and never shifts to you, the accused.

• Second Degree Promoting Gambling: New York Penal Law 225.05
• First Degree Promoting Gambling: New York Penal Law 225.10
• 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

If you are charged with the class A misdemeanor crime of Possession of Gambling Records in the Second Degree or the class E felony crime of Possession of Gambling Records in the First Degree, the New York Penal Law sets forth a defense that your criminal lawyer or criminal defense attorney may seize upon. That is, if the writing, instrument, paper or article you possess was neither used nor intended to be used in the operation or promotion of a bookmaking scheme or in the promoting or playing of a lottery, you are not guilty of this crime.

Tailored solely to subsection one of New York Penal Law 225.30, it is an affirmative defense that the slot machine is an antique and there is no intent to use it in the operation or promotion of unlawful gambling. Although I have no idea how the New York State Legislature picked the date, proof that a slot machine was manufactured before 1941 is conclusive evidence that the machine is an antique. Similarly, if the slot machine is in your home, is more than thirty years old and is not intended or actually used to promote or take part in unlawful gambling, it is also an affirmative defense.

• New York Gambling Crimes General Information Page: NY PL Article 225

Obviously, the above defenses are tied specifically to a limited type of gambling arrest, indictment or trial in New York. While your entire case may fall like a house of cards in the event one of these defenses is applicable or another more likely defense is identified and implemented by your gambling defense lawyer, you still may be on the hook for the more dangerous and severely penalized crimes such as Money Laundering and Enterprise Corruption. Winning the battle is one thing, but winning the entire war, i.e., minimizing or limiting your criminal exposure, is much more important as these two offenses can carry a sentence of as much as twenty five years in prison.

• New York Penal Law 460.20: Enterprise Corruption
• New York Penal Law Article 470: Money Laundering

Whatever your defense may be to a gambling crime in New York, take the time to read about the law and consult with a criminal attorney who can and will offer your best defense. Contact Saland Law and let our experience, advocacy and knowledge work for you.

Contact the New York gambling defense attorneys and former New York prosecutors at (212) 312-7129 or contact us online today.