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Internet Poker Under Consideration in New York?

Newsday is reporting New York State Senate co-leaders Jeff Klein and Dean Skelos have included language in their proposed state budget that signals their support for “authorizing and regulating internet gaming for games of skill, including poker, to reflect recent changes in the classification of these games.”

Aides to these lawmakers, according to Newsday, claim the basis for authorizing internet poker in New York is a state court ruling that held poker as a game of skill, and not a game of chance.

Say what?

Indeed, there is a very relevant federal court ruling from the Eastern District of New York. Last August, in United States v. Dicristina, Judge Weinstein held that poker is a game of skill, and thus not gambling, under the federal Illegal Gambling Business Act (“IGBA”).

In his opinion, however, Judge Weinstein made very clear the classification of poker under New York State law:

New York courts have long considered that poker contains a sufficient element of chance to constitute gambling under that state’s laws.

Judge Weinstein noted the defendant did raise the argument (which was later waived) that poker should not be considered gambling under state law. The Judge’s response: “[The argument] has no merit.”

Under N.Y. penal law, profiting from unlawful gambling activity is considered criminal promotion of gambling.

I am puzzled about the senators’ purported basis for authorizing online poker in New York. There is no New York state court decision to support this position. Perhaps instead Klein and Skelos meant to suggest that the state legislature should consider the reasons described in detail in Dicristina as a basis for changing the current interpretation of poker as a “contest of chance” under NY law.

There’s likely more to this story than initially reported. Stay tuned.

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