IGBA Poker NY Law Excerpt from ANALYSIS OF THE ILLEGAL GAMBLING BUSINESSES ACT -- New York State Gambling Law
EDNY Senior District Court Judge Jack Weinstein got most of it right in his thorough legal analyses of IGBA and poker as a game predominantly of skill in his landmark DiCristina legal opinion. However, on the issue of the proper test of chance in the State of New York, he missed a key recent legal decision in the NY v. Hua (Mah Jong) case from 2009 where the court clearly determined that -- as with the vast majority of US jurisdictions - the legal test of chance in order to ascertain gambling in NY is whether chance or skill "predominates" in the particular activity despite the use of the term "materiality" in the NY Statutes.
Though the New York statute uses slightly different language than the classic “predominance test” for assessing chance and skill used in other States, it employs essentially the same dominance factor test. See, e.g., N.Y. Penal Law § 225.00(1) (McKinney 2008) (“[A] ‘[c]ontest of chance’ [is] any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.”); see also New York v. Hua, 2009 WL 1575188, *3 (N.Y.C. Crim. Ct. Queens County June 5, 2009) (dismissing case because there was “no support given for the claim that mahjong is a game of chance”).
As the Hua court explained:
[W]hile some games may involve both an element of skill and chance, if
“the outcome depends in a material degree upon an element of chance,”
the game will be deemed a contest of chance. “The test of the character of the game is not whether it contains an element of chance or an element of skill, but which is the dominating element that determines the result of the game?” It follows then that wagering on the outcome of a game of skill is therefore not gambling as it falls outside the ambit of the statute. Id. at *2 (emphasis added) (citations omitted).
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