Relates to definitions for gambling offenses

BILL NUMBER:S3562A

Title of bill

An act to amend the penal law, in relation to amending the definitions for gambling offenses

Purpose or general idea of bill

To clarify the definition of gambling to make clear that coin-operated amusement machines that provide an extra ball, time or game does not constitute" something of value" and is, per se, "gambling".

Summary of specific provisions

This legislation amends §225(6) and (7-a) of the Penal Law to delete from the definition of "something of value" those sections which merely provide extra time or extra game or an additional ball on amusement machines.

Justification

It appears that the 1987 amendment (§7-a) intended to anticipate that all video games, even those for amusement, would be converted into gambling devices. In his "Practice Commentary" to McKinney's Penal Law Article 225, William C. Donnino says:

"To the extent the legislation sought to draw a distinction between coin operated amusement or video games and the coin operated gambling devise, it is questionable whether it succeeded. The same legislation amended the definition of "slot machine" to exclude from that definition a machine which based to a "material degree" on the skill of the player, awards the successful player only a free or extended play. Had that amendment been made to the generic definition of "gambling device," a clearer distinction between all "gambling devices" and coin operated amusement and video games would have been achieved.

As the law stands, whether the video games which "factor in a player's skill" and award a free or extended play are excluded from the definition of a "coin operated gambling device" depends on an interpretation of the definitions of "contest of chance" and "something of value. Both definitions are critical to the definition of "gambling" which in turn is critical to the definition of "gambling device." See matter of Plato's Cave Corp. State Liquor Authority, supra (the playing of a Joker Poker machine that permitted a winning player to play additional games without charge constituted gambling); Bubba Restaurant, Inc. v. N.Y.S. Liquor Authority, 1990, 160 A.D.2d 539, 554 N.Y.S.2d 189 (a "Broadway" video game machine that rewards a winning player with additional games free of charge was a "gambling device.")

Classical amusement machines do not eject any money. Before 1987, the player would insert coins to play and depending on his or her skill

receive an extra pinball, game as additional time to play the game. No money or slip of paper is ejected to "reward" the player regardless of skill.

Repeat of the language, the subject of the amendment would rejuvenate the amusement machine industry in New York. Presently, the industry is stifled from purchasing amusement machines available in most states

Prior legislative history

2008 Veto 112

Fiscal implications

Possible increased sales tax from new amusement machine purchases.

Effective date

Immediately.