Summary
In Bubba Restaurant, Inc. v. New York State Liquor Authority, 160 A.D.2d 539, 540, 554 N.Y.S.2d 189 (1st Dept, 1990), a video game machine which rewarded the winning player with additional games free of charge constituted possession of a gambling device within the meaning of the statute.
Summary of this case from People v. Jun FengOpinion
April 19, 1990
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
Upon examination of this record, we conclude that respondent's determination, made after a hearing, that petitioner permitted gambling on the licensed premises in violation of Alcoholic Beverage Control Law § 106 (6) and maintained on said premises a video display game machine prohibited under rule 36.1 (t) of the Rules of the State Liquor Authority ( 9 NYCRR 53.1 [t]), was supported by substantial evidence.
The uncontroverted evidence established that on June 25, 1988, a "Broadway" video game machine was operated in the licensed premises, with the full knowledge and permission of petitioner. This game rewards a winning player with additional games free of charge and, therefore, provides "something of value" within the meaning of Penal Law § 225.00 (6) and is a "gambling device" pursuant to Penal Law § 225.00 (7). (See, Matter of Plato's Cave Corp. v. State Liq. Auth., 68 N.Y.2d 791.)
In the circumstances before us, however, we find that the 30-day suspension of petitioner's liquor license and the forfeiture of the $1,000 bond is unduly harsh. (See, Matter of Cos Dei San, Inc. v. New York State Liq. Auth., 147 A.D.2d 370.) Accordingly, the penalty is vacated and the matter remanded to respondent solely for reconsideration of appropriate sanction.
Concur — Kupferman, J.P., Milonas, Asch, Kassal and Smith, JJ.