62 Misc. 2d 638 | New York County Courts | 1970
This is an appeal by the People from a judgment of Buffalo City Court which dismissed informations charging each of the defendants with possession of gambling records on the grounds that section 225.15 (subd. 1) of the Revised Penal Law is unconstitutional. The informations alleged each defendant’s possession of written records of horse bets, tally sheets, racing programs, racing forms and ball-point pens all of which are said to be articles commonly used in the operation of a bookmaking scheme or enterprise.
Section 225.15 is entitled “ Possession of gambling records in the second degree” and provides in pertinent part that a person is guilty of a class A misdemeanor when “ with knowledge of the contents thereof, he possesses any writing, paper, instrument or article: 1. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise; or 2
The City Court agreed with the defendants’ con Mentions that the statute fails to .set forth a reasonably ascertainable standard of conduct in that it fails to precisely define the activity or contraband sought to be prohibited improperly prohibits a person’s possession of lawful articles without requiring a showing of an intent to use them unlawfully; and, when read in conjunction with section 225.25, violates the provisions of the
Article 225 of our Revised Penal Law is intended and designed to sanction and facilitate the prosecution of the professional bookmaker and other professional operators and promoters of unlawful gambling activity. The individual player or bettor is excluded from its prohibitions. (Cf. Commission Staff Notes, Gilbert Criminal Code & Penal Law [1968 ed.], pp. 1 C-93, 1 D-33.) Thus, “ Rookmaking ” is defined by section 225.00 (subd. 9) as the unlawful acceptance of bets from members of the public as a business rather in a casual or personal fashion. It is this unlawful business enterprise and its professional operators who are the object of article 225’s bookmaking provisions. That such activity and persons are proper subjects for the exercise of the State’s police powers is not disputed. The question is whether section 225.15 (subd. 1) is a constitutional exercise of that power.
Duly enacted legislation is endowed by our law with a strong presumption of constitutionality. (People v. Pagnotta, 25 N Y 2d 333.) Mere doubt or uncertainty as to its constitutionality in all conceivable applications does not justify a judicial declaration of invalidity. Only when such a result is clearly unavoidable may a court properly hold a statute to be unconstitutional. (Matter of Van Berkel v. Power, 16 N Y 2d 37; People v. Byron, 17 N Y 2d 64.)
Contrary to the defendants’ contentions, section 225.15 (subd. 1) need not be read as an all-inclusive prohibition of even innocent possession of newspapers, racing forms, pads, pencils and similarly innocuous articles commonly used in bookmaking operations. It is true, of course, that legislation may not define as criminal activity which is otherwise lawful merely because it is sometimes performed illegally or attended by improper motives or performed in furtherance of an illegal scheme. (People v. Bunis, 9 N Y 2d 1.) Our Legislature may not be presumed to have acted contrary to that well established and undisputed rule.
The section in question represents a restatement of the bookmaking records offense previously defined by section 986-b of the former Penal Law. Both sections are entitled with reference to possession of gambling records. While the former section was phrased in terms of a written record of a player’s bet “made by a person engaged in bookmaking ”, the present section refers to writings, instruments or articles “ Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise ”, The former statute was in fact quite
And when so restricted, the statute can also withstand the defendant’s further contention that in the absence of a requirement that the contraband’s possession be coupled with a criminal purpose the statute should not be upheld. Foreseeing this possibility of innocent possession of records of “ a kind commonly used in [bookmaking enterprises] ”, the revisors provided a statutory defense with respect to records of this type which were in fact neither used nor intended for use in a bookmaking scheme. (See Penal Law, § 225.25.) And this provision does not place the burden of proving that fact upon the defendant for it is further provided by section 25.00 of the Penal Law that such a defense need merely be raised by a defendant and the burden of proving the contrary beyond a reasonable doubt
Section 975 of the former Penal Law dealing with possession of writings of a kind commonly used in playing or promoting “ policy ” and from which the present approach to bookmaking records has been adopted, has been consistently upheld by our courts. (People v. Adams, 176 N. Y. 351, affd. 192 U. S. 585; People ex rel. Wilson v. Flynn, 72 App. Div. 67; People v. Politano, 32 Misc 2d 526, 17 A D 2d 503, affd. 13 N Y 2d 852.)
Reading section 225.15 (subd. 1) and its associated statutes in the light of their history and legislative intent and the decisions of our courts relating to section 975 leads me to conclude that the section in question is in all respects constitutional. The judgment appealed from herein must, therefore, be reversed, the informations reinstated and the matter remanded to Buffalo City Court for further proceedings in accordance with this decision.