## Facts

- Eric Hunt was charged in New York City Criminal Court with promoting gambling in the second degree (N.Y. Penal Law § 225.05) and possession of a gambling device (N.Y. Penal Law § 225.30).
- The accusatory instrument alleged Hunt operated a street game of three-card monte.
- As alleged, the dealer displays three cards (including a “court card”), places them face down, moves/shuffles them, and the player wagers on identifying the court card.
- The information did not allege additional facts about how the game was conducted in this instance (e.g., manipulation, rigging, sleight-of-hand, or other circumstances bearing on whether chance predominated over skill).
- Hunt moved to dismiss the information as facially insufficient.

## Issues

1. Whether the information satisfied N.Y. Crim. Proc. Law § 100.40 by pleading non-hearsay facts establishing reasonable cause and a prima facie case for each element of Penal Law §§ 225.05 and 225.30.
2. Whether the pleading adequately alleged that three-card monte, as conducted, constituted “gambling” under Penal Law § 225.00(2) by involving a “contest of chance.”
3. Whether the prosecution could proceed to trial on the theory that the chance-versus-skill question is for the factfinder when the information itself lacked supporting factual allegations.

## Decision

- The court granted Hunt’s motion and dismissed the accusatory instrument.
- The court held the information was facially insufficient because it failed to plead facts making a prima facie showing that the alleged activity was “gambling,” a material element of both charged offenses.
- The court rejected the prosecution’s reliance on a generalized “one-in-three” odds characterization as an adequate pleading substitute for facts showing that chance predominated over skill in the charged conduct.

## Legal Principles

- An information must contain non-hearsay factual allegations that, if true, establish every element of the charged offense and the defendant’s commission thereof; failure is a jurisdictional defect requiring dismissal. (N.Y. Crim. Proc. Law § 100.40; People v. Alejandro)
- For gambling offenses under Penal Law article 225, “gambling” is a material element and requires allegations showing the activity meets the statutory definition, including that it is a “contest of chance” under Penal Law § 225.00(2).
- Merely labeling conduct as “three-card monte,” without factual allegations demonstrating that chance predominated over skill in the manner conducted, does not establish a prima facie case of “gambling.”
- The sufficiency of the accusatory instrument is a legal threshold issue; a case cannot be left for factfinding at trial when the pleading does not allege facts supporting each element.

## Conclusion

The court dismissed the gambling-related charges because the information alleged only that Hunt operated three-card monte and did not plead specific facts showing the activity, as conducted, was a statutory contest of chance; without that prima facie “gambling” showing, the information was jurisdictionally defective.


People v. Hunt, 616 N.Y.S.2d 168, 162 Misc. 2d 70 (N.Y. Crim. Ct. 1994)