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The venerable New York street game, three-card monte, is a game of skill, not of chance, and a defendant accused of playing it can not be prosecuted under state gambling laws, a Manhattan Criminal Court judge has ruled. However, the New York County District Attorney may proceed with a prosecution for violating a city ordinance specifically banning three-card monte, a type of shell game, the judge ruled. In a case of first impression since the enactment of the city’s anti-three-card monte ordinance, Judge Matthew F. Cooper ruled that three-card monte is not gambling under the definitions included in the New York State Penal Law. In People v. Emmanuel Mohammed, 2001NY006295, the defendant was charged with three violations of the state Penal Law — including promoting gambling and possession of a gambling device — and one violation of the New York City Administrative Code for playing three-card monte. Emmanuel Mohammed was allegedly engaging persons in games of three-card monte, in which players receive money if they select a card designated by the dealer, after it has been manipulated with other cards by the dealer. The player loses money if he or she cannot select the designated card. The game pits the dealer’s sleight-of-hand against the player’s ability to remain focused on the designated card. Typically, in the New York street game, dealers resort to trickery, such as palming cards, in an effort to deceive the player. Mohammed asked for the gambling charges to be dismissed, since the statute defines gambling as “game[s] of chance.” SKILL OR CHANCE? The New York County Criminal Court has issued decisions that classify three-card monte and the similar shell game as games of chance, but other rulings of the same court describe such games as tests of skill. Judge Cooper said that three-card monte and shell games are essentially games of skill and not of chance. “When played fairly, the game is one of skill where the accuracy of the eye of the player competes with the speed of the hand of the dealer,” Cooper said. The court also reasoned that the city council, when it enacted the ordinance banning the public play of three-card monte, understood that it was filling a gap left open by the state’s gambling laws. “The court is very much aware of the fact that three-card monte and the shell game, as they are played on the streets of New York, almost always involve trickery and deception,” Cooper wrote. “In fact, [different judges of the New York Criminal Court], while reaching contrary conclusions as to whether three-card monte constituted gambling, agreed that legislation was needed to outlaw it by name.” The city council acted in 1999 to pass such a ban, prohibiting the game of three-card monte specifically and by name. Judge Cooper said that the defendant was properly charged with unlawfully playing three-card monte in a public place. He set aside defendant’s argument that no money changed hands between him and any player, noting that the ordinance does not require such an exchange. “There need only be the expectation that the player will receive money if he or she correctly selects the designated object,” Cooper wrote. “This requirement is met by the allegation … that the defendant was observed encouraging pedestrians to place their bets.” Manhattan Assistant District Attorney Don Berthiaume is handling the prosecution. Simone C. Aubry of the Legal Aid Society represents Mohammed.

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