“Legality of Poker in New York” Riding the F train SATURDAY, MAY 28, 2005

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This article can originally be found at http://ftrain.blogspot.com/2005/05/legality-of-poker-in-new-york.html.

It is the best article I have ever read in regards to understanding the law as a poker player who resides both in New York State and New York City.  F-Train is a freelance writer, tournament reporter and avid poker player. In a different life he was a corporate lawyer in New York City. He can be reached at ftrainpoker AT gmail DOT com.

There’s quite a bit of confusion right now about the legal status of poker in New York. On the heels of Thursday night’s raids (bonus coverage), I thought it would be helpful to explain to players why, as players, we have nothing to fear from a police raid against any of the poker clubs, and why we should all continue to frequent the clubs that remain open. A quick review of the applicable laws should set the table for us.

Article 1, Section 9 of the New York State Constitution clearly states that:

[N]o lottery or the sale of lottery tickets, pool-selling, book-making or any other kind of gambling [except state-run lotteries and state-sponsored pari-mutuel betting on horse races] shall hereafter be authorized or allowed within this state; and the legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.

There are additional carve-outs for bingo and for extremely small stakes “casino nights” run by charitable and/or not-for-profit organizations, but otherwise any form of gambling is unauthorized in New York.

“But poker isn’t gambling!”, you say. “It’s a game of skill, not a game of luck.” Hold on there, Perry Mason. Who said skill or luck had anything to do with whether or not something is “gambling”, as far as the State of New York is concerned? To answer the question of “what is gambling?”, we need to turn to the New York Penal Law. Section 225.00(2) defines “gambling” as follows:

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.

As you can see, poker falls clearly within this definition. Players risk something of value (money, Section 225.00(6)) upon the outcome of a future contingent event not under their control or influence (the cards to come – whether playing a stud game, a draw game or a flop game) upon an agreement that one of them will receive something of value (all the money in the pot) in the event of a certain outcome (he has the best hand or all other players fold).

The thing is, just because poker is “gambling”, it doesn’t follow that attending an underground card room and playing poker there is punishable. Article 1, Section 9 of the Constitution states only that gambling is unauthorized; it leaves the enumeration of specific crimes to the state legislature. Thus, in order to determine what type of gambling activity is considered a crime, we need to look deeper into the Penal Law, to the actual crimes enumerated by the statute. They’re all found in Section 225, and consist of:

* Promoting gambling, second degree – when a person knowingly advances or profits from unlawful gambling activity. Class A misdemeanor.
* Promoting gambling, first degree. Class E felony.
* Possession of gambling records, second degree. Class A misdemeanor.
* Possession of gambling records, first degree. Class E felony.
* Possession of a gambling device. Class A misdemeanor.

I can already see the questions forming. “Don’t I profit from unlawful gambling activity if I win more than I lose?” “Don’t I ‘possess a gambling device’ when I use chips to bet?” In both cases, the answer is “no”, but we have to back our way into that answer a little bit by looking at the definition of “player” (Section 225.00(3)):

“Player” means 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. A person who gambles at a social game of chance on equal terms with the other participants therein does not ‘otherwise render material assistance to the establishment, conduct or operation thereof’ by performing, without fee or remuneration, acts directed toward the arrangement or facilitation of the game, such as inviting persons to play, permitting the use of premises therefor and supplying cards or other equipment used therein. A person who engages in “bookmaking”, as defined in this section is not a “player.”

That explains the cryptic remark from a member of the Vice Squad that “It’s not illegal to play poker, only to profit from it.” The rub for players is that, although they can’t be hit with “possession of a gambling device” or “promotion of gambling”, since chips are considered “gambling devices”, all chips are immediately seized as evidence and nobody gets cashed out.

In summary, while it’s true that playing poker for money is unauthorized in New York, there is no specific criminal statute on the books that can punish players. All of the statutes are aimed only at the facilitators of gambling: bookies, owners of card clubs, their staff, etc.

Now get out there and get those cards in the air!

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