It looks like the definition you are using in your question is from
Sec 225.00 Gambling offenses; definitions of terms. There is a copy of
You appear to be paraphrasing number 2
--"2. "Gambling" 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."
Which on its own seems to lend some credence too your logic. However, number 1
--"1. "Contest of chance" means 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."
This last part is fairly clear; the NY Constitution agrees that their
may be an element of skill in the game (as clearly poker has),
however, having an element of skill does not remove the element of
chance (and anyone that has faced a bad beat knows that poker has a
strong element of chance). So as long as there is an element of chance
in the game, it is considered a "Contest of chance" and therefore
--"6. "Something of value" means any money or property, any token,
object or article exchangeable for money or property, or any form of
credit or promise directly or indirectly contemplating transfer of
money or property or of any interest therein, or involving extension
of a service, entertainment or a privilege of playing at a game or
scheme without charge."
Again, we are doing just fine until the definition brings up that last
part. "extension of a service", "entertainment", or the "privilege of
playing at the game or scheme without charge". This puts a shadow on
your example number 2, though I don't think it would completely knock
it out of the running (there are other problems however)... When going
through these laws (any legal research really) it is very important to
get the whole picture, and not just part of it ... Let's take a look
at both separately.
In example 1 ...
1 - abc corporation wants to throw a party for their employees, they
decide to have a poker theme. the host business hosts the
party/tournament where there are prizes for the winners, but the
players themselves risk nothing, say 1st - $100, 2nd -$50, etc, this
money being put up by abc corp. along with abc corp. paying the host
business for space, etc.
As we said, Poker is certainly a game of chance, so this would be
technically illegal from the start. The fact that the players are not
putting something in is irrelevant when the players stand to "win"
money. In this example the players are winning money at a game of
chance. I agree that they are not "gambling" since they have nothing
to loose, however the statue specifically lists "gambling" and "game
of chance" separately.
The beginning of the statue in the New York Constitution is this (I
don't want to copy the whole thing, because most of it is irrelevant
to your question, and you can look at it from the link)
--"New York Constitution
Sec. 9. 1.
No law shall be passed abridging the rights of the people peaceably to
assemble and to petition the government, or any department thereof;
nor shall any divorce be granted otherwise than by due judicial
proceedings; except as hereinafter provided, no lottery or the sale
of lottery tickets, pool-selling, book-making, or any other kind of
gambling, except lotteries operated by the state and the sale of
lottery tickets in connection therewith as may be authorized and
prescribed by the legislature, the net proceeds of which shall be
applied exclusively to or in aid or support of education in this state
as the legislature may prescribe, and except pari-mutuel betting
on horse races as may be prescribed by the legislature and from which
the state shall derive a reasonable revenue for the support of
government, shall hereafter be authorized or allowed within this
state; and the legislature shall pass appropriate laws to prevent
offenses against any of the provisions of this section.
New York Consolidated Laws
Illegal wagers, bets and stakes. All wagers, bets or stakes, made to
depend upon any race, or upon any gaming by lot or chance, or upon any
lot, chance, casualty, or unknown or contingent event whatever, shall
So example 1, under the current statue would still be considered
2 - xyz charity puts on a benefit poker tournament that costs, say,
$10 per player donation. The winning players receive no monetary
award, just recognition or a small trophy. the charity receives $7 per
player as donation, $3 goes to the host business.
This one is a little more unclear (as most of the gambling laws in New
York are). There is no law that clearly states it is illegal for a
player to "play poker" or to gamble in the State. That is one of those
weird loop holes found all over the place, especially in the New York
status. Number 5 in the definitions brings up the topic of "Profiting
--"5. "Profit from gambling activity." 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
I'm not a lawyer (I have to point that out, and direct your attention
also to the disclaimer below), but it would probably be very hard to
say that a non-profit organization is "profiting" from this example.
There are no money prizes (there is entertainment but I don't see that
part of number 6 pertaining here. There is no "aftermath"
entertainment being won here... for example movie tickets or something
of that sort. I also don't see a "trophy" as pertaining either, though
it could be construed that way if the trophy were worth over $100 for
However, you also put in that the owner of the building would receive
$3.00 per player. That could get dicey. If the owner of the building
got $50 no matter what, that is to say, if his payment had nothing to
do with the number of players, or the out come of the game, then there
would be no problem with this definition. However, placing his
"payment" solely on the number of players, suggests that he would be
advertising to increase his gains from a gambling activity. Again, the
act of a poker game is still a gambling activity ... ("in the proceeds
of gambling activity."). Taking $3 per player would be the "proceeds
of a gambling activity". If he were just getting rent from a
non-profit organization for the space, then he is not receiving
"proceeds" he is just getting rent.
So, if you changed that part, there is no "profit", there are no
"proceeds" and playing poker (especially for no money prize) the
example would probably fit to be a non-illegal event. Before you
organize such an event, I would recommend talking to a lawyer first,
but I don't see any other problems that could arise.
There is a very good article about this subject written by Bennett
Liebman which was published in the NYSBA Entertainment, Arts and
Sports Law Journal, Spring of 2006, Vol. 17 No. 1 (the link below is a
PDF document of that article).
I'm sure it will help a great deal in trying to understand the laws,
and the current status of Poker specifically.