New York Law Review

Tag: Gambling

  • People v. Basilicato, 64 N.Y.2d 103 (1984): Probable Cause for Wiretap Warrants

    People v. Basilicato, 64 N.Y.2d 103 (1984)

    Affidavits supporting a wiretap warrant application must establish probable cause to believe that a specific individual is engaged in illegal activity and that the wiretap will yield evidence of that activity.

    Summary

    The New York Court of Appeals held that affidavits submitted to obtain a wiretap warrant for Larry Centore’s home phone lacked probable cause. The affidavits noted Centore’s prior criminal record and regular meetings with individuals who also had criminal records, sometimes carrying bags or briefcases. The Court found this activity suspicious but insufficient to establish probable cause that Centore was engaged in gambling or that a wiretap would provide evidence of such activity. However, the Court also held that the defendant’s grand jury testimony was admissible because it was voluntary, independent, and untainted by the illegal wiretap. Therefore, the motion to dismiss the remaining indictment counts was denied.

    Facts

    Larry Centore was the subject of a wiretap warrant application. Supporting affidavits indicated the following:

    • Centore had a prior criminal record for assault and robbery, plus an unresolved gambling charge.
    • He regularly met with individuals who also had criminal records, including gambling convictions.
    • Meetings occurred at a local restaurant, and occasionally, some individuals were seen carrying brown paper bags, newspapers, or briefcases.

    Procedural History

    The trial court initially suppressed the wiretap evidence due to a lack of probable cause. However, the Appellate Division reversed, reinstating four counts of the indictment. The New York Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    Whether the affidavits submitted in support of the wiretap warrant application were sufficient to establish probable cause that Larry Centore was engaged in illegal gambling activity and that a wiretap on his home phone would yield evidence of such activity.

    Holding

    No, because the activities described in the affidavits, while suspicious, did not rise to the level of probable cause to believe that Centore was engaged in gambling or that a wiretap on his home phone would yield evidence of illegal gambling.

    Court’s Reasoning

    The Court of Appeals determined that the affidavits lacked sufficient evidence to establish probable cause for the wiretap warrant. While the affidavits detailed Centore’s criminal history and associations with other individuals with criminal records, the described activities were deemed merely suspicious and not indicative of illegal gambling activity. The Court emphasized that probable cause requires more than just suspicion; it requires a reasonable belief, based on specific facts, that a crime has been or is being committed. The court stated: “These activities may be suspicious but they do not rise to the level of probable cause to believe that Centore was engaged in gambling or that a wire tap on his home phone would yield evidence of illegal gambling.” The Court, citing People v. McGrath, held that the defendant’s testimony before the Grand Jury was admissible because it was “the product of a voluntary and independent act which is sufficient to dissipate the taint.” This indicated that the testimony was not a direct result of the illegally obtained wiretap evidence and was therefore admissible.

  • Matter of Falso v. State Liquor Authority, 43 N.Y.2d 721 (1977): Licensee Responsibility for Managerial Employees’ Actions

    43 N.Y.2d 721 (1977)

    A licensee can be held responsible for violations of the Alcoholic Beverages Control Law committed by an employee if that employee exercises managerial authority, even without an official title, when the licensee is not present.

    Summary

    David Falso, a restaurant owner, appealed a decision by the State Liquor Authority (SLA) finding him responsible for a gambling violation committed by his brother, who was left in charge of the premises for several hours daily. The SLA argued that Falso’s brother exercised managerial authority during Falso’s absence, making Falso liable for his actions. The Court of Appeals affirmed the Appellate Division’s decision, holding that a licensee can be penalized for the actions of an employee who exercises managerial authority, even in the absence of a formal title or comprehensive management responsibilities. The dissent argued that there was no explicit finding that the brother had unequivocal supervisory responsibility.

    Facts

    David Falso owned the Palm Gardens Restaurant. Falso regularly left his brother in charge of the licensed premises for one hour in the morning and four hours in the afternoon. During one of these periods, Falso’s brother tolerated gambling on the premises. The State Liquor Authority sought to penalize Falso for this violation, arguing that his brother acted in a managerial capacity during those times.

    Procedural History

    The State Liquor Authority imposed a penalty on Falso. The Appellate Division confirmed the Authority’s determination. Falso appealed to the Court of Appeals.

    Issue(s)

    Whether a licensee can be held responsible for a violation of the Alcoholic Beverages Control Law committed by an employee who exercises managerial authority, even if that employee does not have a formal managerial title or comprehensive management responsibilities.

    Holding

    Yes, because a licensee is chargeable with the conduct of an employee who has been given managerial responsibility, even if that responsibility is limited to the operation of the premises and the conduct of the licensed activity thereon on other than a casual or temporary basis.

    Court’s Reasoning

    The Court of Appeals distinguished this case from Matter of Martin v. State Liq. Auth., where the penalty was based on the licensee’s alleged failure to discover a barmaid’s gambling activities. Here, the penalty was imposed because Falso’s brother, who was left in charge, exercised managerial authority. The court emphasized that it is not necessary for the employee’s management responsibility to extend to all aspects of the business. It suffices if the employee is responsible for the operation of the premises and the conduct of the licensed activity when the licensee is absent. The court stated, “It is not necessary that the management responsibility delegated to the employee be that for the conduct of the entire enterprise, e.g., including purchase and sale of supplies, physical maintenance of the premises; it suffices if the employee is given responsibility for the operation of the premises and the conduct of the licensed activity thereon on other than a casual or temporary basis.”

    The court found that there was substantial evidence to support the Appellate Division’s conclusion that Falso’s brother exercised managerial authority. The failure to confer a managerial title was not determinative. As a proposition of law, the court held that a licensee is normally chargeable with the conduct of an employee who has been given managerial responsibility for the purposes of the Alcoholic Beverages Control Law. The dissent argued that neither the hearing officer nor the SLA made an explicit finding that the brother was a manager or that Falso gave his brother unequivocal supervisory responsibility and that there was no direct evidence that the employee had managerial duties.

  • Migliaccio v. O’Connell, 307 N.Y. 566 (1954): Defining “Suffer or Permit” in Alcohol Beverage Control Law Violations

    Migliaccio v. O’Connell, 307 N.Y. 566 (1954)

    To establish that a licensee “suffered or permitted” gambling on their premises in violation of the Alcoholic Beverage Control Law, there must be evidence that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the gambling activity.

    Summary

    This case addresses the level of knowledge required to prove that a licensee violated the Alcoholic Beverage Control Law by suffering or permitting gambling on their premises. The court found that for a violation to stand, the licensee must have had actual or constructive knowledge of the gambling activity. The court annulled the suspension of the petitioner’s license because there was no evidence that the licensee or their employees were aware of the gambling activity occurring on the premises. This case emphasizes that mere occurrence of gambling is insufficient; the licensee’s complicity, actual or implied, is required.

    Facts

    An undercover police officer observed a woman patron engaging in apparent gambling activities (taking money and making notations on paper) at the petitioner’s bar over a period of several days. On one occasion, the officer returned with a search warrant and found the same woman with a slip containing horse-racing plays. There was no evidence that the bartender or the licensee, who was present for only about an hour on one of the days, saw or knew about the woman’s activities.

    Procedural History

    The New York State Liquor Authority suspended the petitioner’s license for violating Section 106, subd. 6 of the Alcoholic Beverage Control Law, alleging that the licensee suffered or permitted gambling on the premises. The Appellate Division annulled the suspension, finding a lack of evidence of knowledge on the part of the licensee. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether the evidence presented was sufficient to establish that the licensee “suffered or permitted” gambling on the licensed premises, thereby violating Section 106, subd. 6 of the Alcoholic Beverage Control Law.

    Holding

    No, because there was no evidence to demonstrate that the licensee had knowledge or the opportunity through reasonable diligence to acquire knowledge of the gambling activity.

    Court’s Reasoning

    The court emphasized that the phrase “suffer or permit” implies knowledge or the opportunity through reasonable diligence to acquire knowledge. Quoting People ex rel. Price v. Sheffield Farms, the court stated, “Sufferance as here prohibited implies knowledge or the opportunity through reasonable diligence to acquire knowledge. This presupposes in most cases a fair measure at least of continuity and permanence.” The court found that the record did not support a conclusion that there was a fair measure of continuity and permanence in the gambling activity, nor was there any evidence that the licensee or the barmaid were aware of it.

    The court distinguished the case from situations where an employee is directly involved in the gambling activity, noting that here, the initiator was a customer. The court noted the absence of evidence suggesting any complicity, actual or implied, by the licensee in permitting gambling. The court found that holding the licensee responsible for the actions of a patron, based on alleged constructive notice on the part of the bartender, would be an overreach, especially since there was no evidence that the employee was aware of the gambling.

    The court reinforced that the gravamen of the charge under section 106 is the licensee’s complicity, actual or implied, in permitting gambling and said that the record lacked sufficient evidence to support the licensee’s implied acquiescence in any such activity. This means the state has to prove that the licensee knew about the gambling, or that they were negligent in not knowing about it.

  • People v. Valentine, 17 N.Y.2d 128 (1966): Probable Cause Standard for Misdemeanor Arrests

    People v. Valentine, 17 N.Y.2d 128 (1966)

    A police officer may arrest a person without a warrant when the officer has probable cause to believe that the person is committing a misdemeanor in the officer’s presence.

    Summary

    Valentine was convicted of violating sections 974 and 975 of the Penal Law based on evidence seized during an arrest. An officer observed Valentine engaging in short conversations with six unknown individuals, each of whom handed Valentine money. Valentine also made notations on a slip of paper on three occasions. The officer arrested Valentine and seized slips of paper containing mutuel racehorse policy numbers. The New York Court of Appeals held that the arrest was lawful because the officer had probable cause to believe Valentine was committing a misdemeanor in his presence, and the search incident to that arrest was therefore valid.

    Facts

    On September 23, 1964, a police officer observed Valentine standing on a street corner. Over a 20-minute period, six unknown persons approached Valentine, engaged in short conversations with him, and handed him money in bill form. On three occasions, Valentine made notations on a slip of paper. The officer was 50-60 feet away and could not overhear the conversations or see the notations. After observing this pattern, the officer arrested Valentine. A search incident to the arrest revealed slips of paper with three-digit numbers, which the officer identified as mutuel racehorse policy numbers.

    Procedural History

    Valentine was convicted in the Criminal Court of the City of New York for violating sections 974 and 975 of the Penal Law. The Appellate Term, Second Department, affirmed the conviction. The New York Court of Appeals granted permission for a further appeal.

    Issue(s)

    Whether a police officer may lawfully arrest a person without a warrant for a misdemeanor when the officer has reasonable grounds or probable cause to believe that the person is committing a crime in the officer’s presence.

    Holding

    Yes, because a 1963 amendment to the Code of Criminal Procedure allows a police officer to arrest a person without a warrant when there is probable cause for believing that the person is committing a misdemeanor in the officer’s presence.

    Court’s Reasoning

    The Court reasoned that prior to July 1, 1963, an arrest without a warrant for a misdemeanor required the officer to observe the crime being committed in their presence with enough evidence to convict. However, a 1963 amendment to Section 177 of the Code of Criminal Procedure changed the standard. The amended statute allows an officer to arrest without a warrant when they have “reasonable grounds for believing that a crime is being committed in his presence.” The Court stated, “This amendment has the effect of allowing a police officer to arrest a person when there is probable cause for believing that the person is committing a misdemeanor in his presence. The change allows the same standard of probable cause justifying an arrest without a warrant to prevail for misdemeanors committed in the presence of a police officer as for felonies.”

    The Court relied on People v. Brady, 16 N.Y.2d 186 (1965) and People v. White, 16 N.Y.2d 270 (1965), to define probable cause. Quoting White, the court stated, “what we are talking about is not the proof beyond a reasonable doubt required for the conviction of a crime but reasonable ground or probable cause for making a search, that is, observations or information sufficient to move a reasonable man to conclude that a crime is being committed or attempted”. The standard is what would be probable cause to a “reasonable, cautious and prudent police officer.”

    Applying this standard to the facts, the Court found that the experienced officer, familiar with policy operations, observed a pattern of behavior typical of gambling activity. While each individual transaction might seem innocent, the repeated pattern gave the officer probable cause to believe Valentine was committing a crime. As a result, the arrest and the search incident to the arrest were proper.