The defendant moves to dismiss the information for facial insufficiency, or in the alternative, omnibus relief. The People filed written opposition. The defendant's motion to dismiss the information is denied in its entirety. The motion for omnibus relief is decided as stated below.

The information alleges that on September 21, 2014, in front of a public place at 2719 Morris Avenue, in Bronx county, the arresting officer observed the defendant and co-defendant throwing a pair of dice on the floor and exchange money while 8-10 other unapprehended individuals looked on. When the officer attempted to arrest the defendant he flailed his arms, and twisted his body attempting to avoid being handcuffed. Both defendants are charged with resisting arrest, Penal Law ("PL") § 205.30; promoting gambling in the second degree, PL § 225.05; possession of a gambling device, PL § 225.30(2); and loitering, PL § 240.35(2).

A facially sufficient accusatory instrument must satisfy the requirements of CPL §100.40(1)(a-c) which provides that an information, or a count thereof, is sufficient on its face when: (1) it substantially conforms to the requirements prescribed in section 100.15; (2) the [*2]allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and (3) non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. Allegations are sufficient for pleading purposes where they provide adequate notice to enable a defendant to prepare a defense and protect against double jeopardy. People v. Kasse, 22 N.Y3d 1142, 7 N.E.3d 500, 984 N.Y.S.2d 287 (2014). Conclusory allegations render an accusatory instrument facially insufficient. People v. Dumas, 68 NY2d 729, 731, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986); People v. Alejandro, 70 NY2d 133, 136, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1986). The information should be given a "fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000). "[T]he prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Henderson, 92 NY2d 677, 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 (1999); People v. Allen, 92 NY2d 378, 385, 703 N.E.2d 1229, 681 N.Y.S.2d 216 (1998). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10, 792 N.Y.S.2d 764 (2nd Dept. 2005), lv. denied, 4 NY3d 857, 830 N.E.2d 330, 797 N.Y.S.2d 431 (2005).

PL § 225.05 states that "a person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity." Gambling is defined in PL § 225.00(2) as "[a] person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome." "A person "advances gambling activity" when, acting other than as a player, he engages in conduct which materially aids any form of gambling activity." PL § 225.00(4). "A person "profits from gambling activity" when, other than as a player, he accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity." PL § 225.00(5).

PL § 255.00(3) defines a player as " a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity."

A person is guilty of possession of gambling devices in violation of PL § 225.30 (a) (2) "when, with knowledge of the character thereof, he or she possesses...any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activities." Gambling device "means any device, machine, paraphernalia or equipment which is used or usable in the playing phases of any gambling activity." PL § 225.00(7). A person is guilty of loitering in violation of PL § 240.35(2) when he or she "[l]oiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia."

Players are specifically excluded from the definitions of the terms "advance gambling [*3]activity" and "profit from gambling activity" and therefore cannot be charged with PL § 225.05, promoting gambling in the second degree, and PL § 225.30(2), possession of a gambling device. See, In Re Victor M., 9 NY3d 84, 87, 876 N.E.2d 1187, 845 N.Y.S.2d 771 (2007)("Whatever its precise scope, this statute cannot fairly be read to apply to every player in a dice game who touches the dice.").

To be facially sufficient, an information must set forth facts from which the court may reasonably infer that the defendant was engaged in gambling, other than as a player. People v. Hawkins, 1 Misc 3d 905(A), 781 N.Y.S.2d 627 (Crim. Ct. NY Co. 2003). For example, the information must establish facts that the officer observed the defendant for a period of time, playing a game of dice with others present and that money was exchanged. See People v. Wilder, 38 AD3d 263, 834 N.Y.S.2d 92 (1st Dept. 2007), lv. denied, 8 NY3d 951, 868 N.E.2d 244, 836 N.Y.S.2d 561 (2007)(probable cause to arrest where "an officer observed defendant on a public street for over 35 minutes, in the company of two other men, in what appeared to be a dice game...defendant dropped dice to the floor, and had money in his hand."); People v. Rollins, 2015 NY Slip Op 1366, at *3, 2015 NY App. Div. LEXIS 1360 (4th Dept. Feb. 13, 2015)(no probable cause to arrest where "the observing officer did not see defendant holding money, exchanging money with the other men in the group, or even rolling the dice."). An information is sufficient as to the charge of loitering for the purpose of gambling where it alleges that the defendant was observed playing a game of dice. See In Re Victor M., 9 NY3d at 87.

Here, the factual allegations that for about twenty minutes, the arresting officer observed the two defendants in a group of 8 to 10 individuals in a public place, take turns throwing a pair of dice and exchanging money with each other are sufficient for the court to reasonably infer that the defendant committed the crimes charged. As such, the information is facially sufficient as to the charges of promoting gambling in the second degree, PL § 225.05; possession of a gambling device, PL § 225.30(2); and loitering, PL § 240.35(2).

"A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person." PL §205.30. In a prosecution for resisting arrest, the factual allegations must show that the defendant resisted an authorized arrest based upon probable cause. People v. Jensen, 86 NY2d 248, 253, 654 N.E.2d 1237, 630 N.Y.S.2d 989 (1995). The accusatory instrument must establish every element of the charge of resisting arrest, but is not required to allege facts that would establish, if true, every element of the offense giving rise to the arrest. It "need only allege that the arrest was authorized, by setting forth facts establishing that the arresting officer had probable cause to believe that the defendant committed an offense in his presence." People v. Canjura, 46 Misc 3d 66, 69, 2 N.Y.S.3d 724 (App. Term 2nd Dept. 2014). Here, the resisting arrest charge is facially sufficient as the factual allegation state that the defendant flailed his arms and twisted his body in an attempt to avoid being handcuffed by the police officer who had probable cause to arrest him for allegedly committing the gambling offenses.

Accordingly, the defendant's motion to dismiss the information is denied in its entirety.

The defendant's motion to preclude use of statements on the People's direct case for which CPL § 710.30 notice was not given is denied without prejudice.

The defendant's Sandoval/Ventimiglia application is respectfully referred to the trial court.

The People are reminded of their continuing obligation to supply all Brady Material.

The defendant's application to reserve his rights to file additional motions is denied subject to his rights pursuant to CPL § 255.20(3) to move for further leave upon good cause shown.

This constitutes the Decision and Order of the Court.

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Bronx, NY