Relates to definitions for gambling offenses.
Ayes (59): Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Martins, Maziarz, McDonald, Montgomery, Nozzolio, O'Mara, Oppenheimer, Parker, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Valesky, Young, Zeldin
Excused (3): Adams, Duane, Kruger
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 § 225.00, subdivisions 7-a and 8 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 (57-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 2010 A.7393
FISCAL IMPLICATIONS: Possible increased sales tax from new amusement machine purchases.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ S. 2476 A. 2982 2011-2012 Regular Sessions S E N A T E - A S S E M B L Y January 21, 2011 ___________IN SENATE -- Introduced by Sen. FLANAGAN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes IN ASSEMBLY -- Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. LAVINE, SCHIMMINGER -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to amending the definitions for gambling offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 7-a and 8 of section 225.00 of the penal law, subdivision 7-a as added and subdivision 8 as amended by chapter 632 of the laws of 1987, are amended to read as follows: 7-a. A "coin operated gambling device" means a gambling device which operates as a result of the insertion of something of value. A device designed, constructed or readily adaptable or convertible for such use is a coin operated gambling device notwithstanding the fact that it may require adjustment, manipulation or repair in order to operate as such. A MACHINE WHICH AWARDS FREE OR EXTENDED PLAY IS NOT A GAMBLING DEVICE MERELY BECAUSE SUCH FREE OR EXTENDED PLAY MAY CONSTITUTE SOMETHING OF VALUE PROVIDED THAT THE OUTCOME DEPENDS UPON THE SKILL OF THE PLAYER AND NOT IN A MATERIAL DEGREE UPON AN ELEMENT OF CHANCE. 8. "Slot machine" means a gambling device which, as a result of the insertion of a coin or other object, operates, either completely auto- matically or with the aid of some physical act by the player, in such manner that, depending upon elements of chance, it may eject something of value. A device so constructed, or readily adaptable or convertible to such use, is no less a slot machine because it is not in working order or because some mechanical act of manipulation or repair is required to accomplish its adaptation, conversion or workability. Nor is it any less a slot machine because, apart from its use or adaptabilityEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08034-01-1 S. 2476 2 A. 2982
as such, it may also sell or deliver something of value on a basis other than chance. A machine which sells items of merchandise which are of equivalent value, is not a slot machine merely because such items differ from each other in composition, size, shape or color.
[A machine which awards free or extended play is not a slot machine merely because such free or extended play may constitute something of value provided that the outcome depends in a material degree upon the skill of the player and not in a material degree upon an element of chance.]S 2. This act shall take effect immediately.