Facts
- James Williams (defendant) was charged by complaint in the Criminal Court of the City of New York, New York County, with fraudulent accosting under N.Y. Penal Law § 165.30.
- The complaint alleged that Williams accosted unknown passersby in a public place and engaged in three-card monte, described as conduct commonly performed in perpetration of a known confidence game.
- An officer allegedly observed Williams receive U.S. currency as a wager from another individual and observed Williams possess three playing cards.
- Williams moved to dismiss, arguing the complaint was defective because it contained no finding and no allegation of specific intent to defraud, which he claimed is an essential element of § 165.30(1).
- The People opposed dismissal, relying on § 165.30(2), which provides that a person who makes statements or engages in conduct commonly used in a known confidence game is presumed to intend to defraud; the People argued three-card monte fits that category.
- The court treated the motion as a pretrial challenge to the facial sufficiency of the accusatory instrument and addressed a question the court described as previously undecided in New York: whether three-card monte is a “known confidence game” for purposes of § 165.30(2).
Issues
- Whether three-card monte is a “known type of confidence game” under N.Y. Penal Law § 165.30(2) so that a defendant who conducts it is presumed to intend to defraud.
- If the § 165.30(2) presumption applies, whether a complaint that alleges the defendant accosted passersby and conducted three-card monte is facially sufficient even without an express allegation of specific intent to defraud.
Decision
- The court held that three-card monte is a known type of confidence game within the meaning of N.Y. Penal Law § 165.30(2).
- Because the statutory presumption applies, the element of intent to defraud was adequately supported at the pleading stage.
- Defendant’s motion to dismiss the complaint was denied, and the prosecution was permitted to proceed.
Legal Principles
- Fraudulent accosting under N.Y. Penal Law § 165.30(1) requires that the defendant accost a person in a public place with intent to defraud by means of a trick, swindle, or confidence game.
- N.Y. Penal Law § 165.30(2) provides an evidentiary presumption: when a person makes statements or engages in conduct of a kind commonly used in perpetration of a known confidence game, that person is presumed to intend to defraud.
- A court assessing a motion to dismiss an accusatory instrument may consider whether the facts alleged fit within a statutory presumption that supplies an element (here, intent) for pleading purposes.
- In deciding whether a scheme is a “known” confidence game, the court may look to common understanding and legal treatment of the scheme, including descriptions showing that the “game” is typically run through deception (for example, sleight-of-hand or use of confederates to induce wagers).
- When the complaint identifies the scheme as three-card monte and alleges conduct consistent with operating it (accosting passersby, taking a wager, possessing the cards), that identification can be enough to invoke § 165.30(2) at the accusatory stage.
Conclusion
People v. Williams holds that three-card monte qualifies as a “known type of confidence game” under N.Y. Penal Law § 165.30(2), so the statute’s presumption of intent to defraud applies; accordingly, a complaint alleging that the defendant accosted passersby and conducted three-card monte was legally sufficient, and the defendant’s motion to dismiss was denied.