People v. GiordanoPeople v. Giordano
Lead Opinion
OPINION OF THE COURT
This is a gambling prosecution involving three bookmakers. They operated primarily in Manhattan but they frequently
The principal issues before us are (1) whether Nassau County had geographical jurisdiction to prosecute defendants when the only conduct there consisted of telephone calls from Manhattan hedging bets made in Manhattan and (2) whether the convictions for promoting gambling must be reversed because of the trial court’s instructions on jurisdiction. We conclude there should be an affirmance.
I
Defendants John Giordano, Joseph Giordano and Philip Cestaro, along with Bernard Rothman, conducted a bookmaking operation in Manhattan. The Giordano brothers managed the business and Rothman worked for them. Cestaro was a runner. On several occasions in the spring of 1989, Rothman placed telephone calls from Manhattan to the "Meacham” bookmaking operation in Nassau County to "hedge” or "lay off” bets placed in Manhattan. He did this when bets received by the Manhattan operation were not evenly placed against the two teams in a particular sporting event and it became necessary for defendants to shift their risk of loss by placing bets on the favored team with another bookmaking operation. In that way, if the Manhattan bettors won, defendants would also win on the hedge bets they had placed in Nassau County or elsewhere and they would thus have a source of funds to pay the Manhattan winners.
Following trial the jury found that defendants promoted gambling in the first degree and conspired to promote gambling
II
The State Constitution and the common law provide defendants with the right to be tried in the county where the crime was committed unless the Legislature has provided otherwise (People v Ribowsky,
Defendants contend, however, that promoting gambling in the first degree has only one element, knowingly advancing or profiting from unlawful gambling activity by engaging in bookmaking, and that Nassau County lacked geographical jurisdiction to prosecute them because there was no proof that they accepted bets, i.e., engaged in bookmaking, in Nassau County (see,
Article 225 of the Penal Law sets forth a framework establishing two promoting gambling offenses and various other gambling-related offenses. Under the statutory scheme a mere "player” or bettor is not criminally liable but one who, in some capacity other than as a player, participates in any gambling enterprise or activity is guilty of a crime. The basic inquiry in each case is whether the game or scheme in issue constitutes gambling and whether defendant’s conduct is other than as a player.
The core crime, section 225.05, provides that a person is guilty of promoting gambling in the second degree when "he knowingly advances or profits from unlawful gambling activity.” A person "advances gambling activity” when, acting as other than a player, he engages in conduct which materially
Section 225.10 is structured to incorporate the exact language of section 225.05 as its initial element of advancing gambling activity, and then adds two subdivisions identifying additional elements which enhance the crime to first degree. Manifestly, second degree promoting, as defined in section 225.05, is a lesser included crime of first degree gambling, as set forth in section 225.10, and, on the record before us, defendants could have been prosecuted for it in Nassau County. Indeed, defendants requested that the court instruct the jury that it was a lesser included offense.
The language of section 225.10 requiring interpretation here provides:
"A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:
"1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars; or
The opening paragraph and subdivision (1) describe different conduct; the use of the word "by” in the statute to define how the enhanced liability obtains does not, as defendant maintains, collapse two elements into one. One "advances gambling” activity by engaging in any conduct which materially aids a gambling operation (
To read
Thus, we conclude that conduct advancing gambling activity and engaging in a bookmaking business are two separate elements. If conduct establishing one of these two elements occurred in Nassau County, that County had jurisdiction to prosecute defendants for the whole crime.
Inasmuch as neither defendants nor their associates accepted or received bets in Nassau County, the People necessarily relied on evidence of the other element, that defendants promoted gambling in Nassau County by laying off bets there. The evidence of the People’s case rested almost entirely on the testimony of two undercover officers and tapes of intercepted telephone calls to the Meacham operation. It established that defendants’ accomplice, Rothman, placed phone calls from Manhattan to the Nassau County bookmaking operation to lay
Moreover, he did so in Nassau County because the Criminal Procedure Law provides that oral statements made over the telephone are deemed to be statements made in both the sending and receiving counties (see,
Ill
Defendants contend further that inasmuch as the Appellate Division reversed defendants’ conspiracy convictions for insufficient evidence, no predicate remains for jurisdiction in Nassau County because the trial court in its supplemental charge, in effect, directed a verdict on jurisdiction based on the conspiracy count of the indictment.
Preliminarily we note that the record contains abundant evidence from the undercover officers and the tapes to establish beyond a reasonable doubt that Rothman made the hedge bets to the Meacham operation in Nassau County. Indeed, defendants do not dispute this evidence. Their primary contention is that even though these acts were established beyond a reasonable doubt, (1) the trial court’s expanded charge on jurisdiction requires the court to presume that the jury found jurisdiction for all counts based on the conspiracy, and thus (2) because the Appellate Division reversed the conspiracy convictions, the promoting gambling convictions must also be reversed.
In its initial charge, the trial court correctly instructed the jury that it must find that Nassau County had jurisdiction to
On the second day of deliberations, the jury again requested a reread of the charge on jurisdiction. After consultation with counsel, the court stated that it intended to repeat its initial charge and to expand its instructions, over defense objections that doing so would direct a verdict against defendants. When it instructed the jury, the court pointed out once again that there were two ways the People could establish jurisdiction — by establishing that an element of the crime of promoting gambling occurred in the county — or by establishing a conspiracy to commit the object crime of promoting gambling in the county. The court then went on to state "I would suggest, I am certainly not directing, I would suggest that you might want to consider first in your deliberations the 20th count of the indictment, the conspiracy count.” It advised the jury that if it found beyond a reasonable doubt each and every element of conspiracy and that an overt act in furtherance of the conspiracy was committed in Nassau County, then Nassau’s jurisdiction to prosecute both the conspiracy charge and the promoting gambling charges would be established. The court further instructed the jury that if the People had not proven the conspiracy count to its satisfaction, the jury must still consider, for each of the counts charging promoting gambling, whether the People had proven "that the defendants or any one of them or their aiders and abetters committed an element of that crime of promoting gambling within Nassau County.” Following these instructions, the jury deliberated further until it requested a reread of the instruction on aiding and abetting.
The supplemental charge was correct, indeed no objection to the substance of it was made. Moreover, the instruction left all factual determinations to the jury and provided it with an analytical framework within which to determine the jurisdictional questions under
The jury rendered a general verdict and there is no way to determine if its finding of jurisdiction for the promoting gambling counts was based on the conspiracy or on an element of promoting gambling. Under such circumstances, the court is not compelled to assume that the jury found jurisdiction based upon unproven conduct. Where, as here, a general verdict has been rendered and there are two lawful grounds upon which the jury could have reached that verdict but one of those grounds lacks support in the evidence, we may presume that the jury reached its determination upon the factually sufficient grounds (see, Griffin v United States,
In this case the People established that defendants, by their accomplice Rothman, hedged bets by telephone calls to the Meacham operation in Nassau County. This established geographical jurisdiction for the promoting gambling counts and the jury was properly charged on the point. Rothman’s calls may have been the only conduct occurring in Nassau
IV
Defendants’ remaining arguments are without merit. The Trial Judge complied with our decision in People v O’Rama (
Notes
. The indictment actually involved five bookmaking operations in the New York metropolitan area and it charged 13 other individuals with numerous counts of promoting gambling in the first degree. In addition, count 20 of the indictment charged all 16, including defendants, with conspiracy in the fifth degree. The count alleged that all of the individuals charged were engaged in a common scheme and plan to promote gambling in the first degree.
All these parties pleaded guilty before trial except defendants and codefendants Patsy Capolongo and Edward Pagnotta, Sr., who was a member of the Meacham bookmaking operation. Defendant Capolongo entered a guilty plea during jury selection, and defendant Pagnotta died during the trial. Thus, appellants were the only individuals prosecuted to a jury verdict.
. The business nature of the activity was demonstrated by evidence that Rothman was on a "half sheet” and ran up a "red figure”, terms meaning that Rothman either maintained credits or debits with the Meacham operation depending on the results of his hedge bets over a period of time.
. Defendants and the dissenters contend that the rendition of the jury verdict shortly after the supplemental charge compels the inference that jurisdiction for the promoting gambling counts was founded on the supplemental conspiracy instruction. As noted, however, after that instruction but before rendering the verdicts, the jury requested and heard a rereading of the charge on aiding and abetting — a matter relevant to the promoting gambling counts but not the conspiracy count. Thus, it is equally inferable, if not more so, that the jury found jurisdiction for the promoting gambling charges by finding that conduct establishing an element of that crime was committed in Nassau County.
. Notably, the Appellate Division reversal was expressly based on the insufficient evidence of an agreement, not any failure to prove overt acts in Nassau County.
Dissenting Opinion
(dissenting). Defendants were tried on gambling charges on the basis of evidence which tended to show that they had participated in the operation of a Manhattan "wire-room” that accepted bets from the public. The only nexus between defendants’ gambling activities and Nassau County was the series of telephone calls an associate Rothman made to place "hedge” bets with an unaffiliated Nassau County bookmaker. On the basis of these facts, the majority holds that the criminal courts of Nassau County had jurisdiction to try defendants for the crime of promoting gambling in the first degree. I disagree. In my view, the majority’s holding is premised on a fundamental misreading of the nature and es
L
Under
The Penal Law defines that crime as follows:
"A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:
"1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars” (Penal Law § 225.10 [1]).
" 'Bookmaking’ means advancing gambling activity by unlawfully accepting bets from members of the public as a business, rather than in a casual or personal fashion” (
The majority concludes that "knowingly advancing] or profiting] from unlawful gambling activity” and "[e]ngaging in bookmaking” are separate elements of the promoting gambling crime with which defendants were charged. Relying on this interpretation of
The flaw in the majority’s analysis is that it treats the statutory requirement of conduct constituting bookmaking as an independent crime element rather than what it actually is: an integral part of the statutorily defined actus reus. As the language and structure of
That "engaging in bookmaking” through accepting bets is an integral part of the actus reus element of first degree promoting gambling is apparent from the grammatical structure of the statute. The "advancing illegal gambling” component is joined to the "bookmaking” component by the prepositional connector "by” rather than by a conjunctive or disjunctive connector such as "and” or "or”. This usage demonstrates that the phrase "by engaging in bookmaking” operates as a restrictive clause which modifies and limits the broad "advancing illegal gambling” component. Indeed, without excising the word "by” from the statute, it is impossible to read the prohibition against "advancing] or profit[ing] from unlawful gambling activity” as an element separate from the ban on bookmaking.
Significantly, when the Legislature has wanted to elevate the level of a crime through the addition of a separate aggravating element, it has consistently used the conjunctive words "and” and "or” (e.g,
The conclusion that the actus reus element set forth in
To remedy this over specificity, the drafters of the current Penal Law created what is now
Included among these carry-over provisions was
"Any person engaged in book-making to the extent that he receives or accepts in any one day more than five bets or wagers * * *, which bets or wagers shall be of such size that the total of the amounts of money paid or promised to be paid * * * shall exceed five thousand dollars, shall be guilty of a felony” (L 1960, ch 548 [emphasis supplied]).
Since the "corpus delicti” of the crime of bookmaking was accepting bets (People v Abelson,
The majority’s reliance on the duplicative use of the phrase "advancing gambling activity” in both the lead-in language of
It is telling that despite the majority’s extended discussion, its opinion contains no plain statement of what the majority believes the actus reus of the crime to be. The omission is not accidental, since no such statement can be made without betraying the fundamental fallacy in the Court’s holding. Under the majority’s formula, "advancing gambling activity” and "bookmaking” are separate elements. Yet, the distinction between them is elusive at best, since the concept of "advancing gambling activity” is, both logically and by statutory definition, an integral part of the act of bookmaking (see,
Further, if, as the majority contends, "advancing gambling activity” somehow has independent significance and, as here, may be satisfied through acts other than taking bets, the crime of promoting gambling in the first degree would be committed when a person "knowingly advances or profits from unlawful gambling [through conduct other than bookmaking] by [e]ngaging in bookmaking” (see,
It is true, as the People stress, that "advanc[ing] or profit-ting] from unlawful gambling” is something that the People had to prove in order to establish the actus reus element of the crime of promoting gambling in the first degree. However, under
IL
Even if there were a theoretically acceptable factual predicate for Nassau County’s exercise of jurisdiction, the judgment of conviction would have to be reversed and a new trial granted because of the manner in which the geographic jurisdiction issue was submitted to the jury. Incorporating the then-pending conspiracy charge, the trial court told the jury that it could find geographical jurisdiction in Nassau County if the People had proved, by a preponderance of the evidence, either that (1) conduct occurred in Nassau County sufficient to constitute an element of first degree promoting gambling or (2) defendants had conspired with the Nassau County wireroom participants to promote gambling in the first degree and one of the conspirators had committed an overt act in that County (see,
The People contend that the foregoing charge error does not require reversal because it may be assumed that the jury did not predicate its finding of geographical jurisdiction on the theory that was not supported by legally sufficient proof (see, Griffin v United States,
The assumption that the jury must have rejected the theory that was not supported by the evidence is squarely belied in this case by the jury’s own verdict, which found defendants guilty on the conspiracy count. Further, the jury’s reliance on the purported conspiracy as the predicate for its finding on geographical jurisdiction is evident from the sequence of events that the record reveals. Having asked for reinstruction on the geographical jurisdiction issue, the jury was told that it should "consider first the [conspiracy] count” and that if it found defendants guilty on that count "then there exists jurisdiction for the promoting counts.” The jury was also told that "Nassau County has jurisdiction of a crime when conduct occurred within Nassau County sufficient to establish a conspiracy to commit that crime” and that "if you find the conspiracy, then you’ve found, in effect, the jurisdiction for promoting gambling.” Given these instructions, which were followed almost immediately by the jury’s verdict, the most plausible and natural inference is that the jury found jurisdiction for the latter charge because of its erroneous determination that defendants were guilty of conspiracy. Certainly, on this record, we cannot straight-facedly "presume” that the verdict on the geographical jurisdiction question was not the product of the conspiracy theory that was erroneously submitted. Indeed, relying on such a presumption in these circumstances is to elevate a legal construct above common sense, particularly since we know for a fact that this jury did not reject the factually unsupported theory.
Accordingly, there is, in my view, no legal or logical justification for upholding the judgment of conviction for first degree promoting gambling against defendants. Since I also conclude that there is no view of the facts which would support a finding that Nassau County has jurisdiction to prosecute, my vote is to reverse the order of the Appellate Division and dismiss the remaining counts in the indictment.
Judges Bellacosa, Smith, Levine and Ciparick concur with Judge Simons; Judge Titone dissents and votes to reverse in a separate opinion in which Chief Judge Kaye concurs.
Order affirmed.
The majority’s assertion that