
    The People of the State of New York, Plaintiff, v. Rossano Liso, Anthony Andrews, John Andrews, Gerald Rose and Irene Devito, Defendants.
    County Court, Queens County,
    May 22, 1959.
    
      
      Lawrence Peirez for defendants.
    
      Frank B. O’Connor, District Attorney (Eileen M. Thornton and Benjamin J. Jacobsen of counsel), for plaintiff.
   Archibald C. Wemple, J.

(Schenectady County Judge and Acting Judge for Queens County). Upon the argument, defendants’ counsel suggested that there might be in this motion a matter of “first impression.” The defendants, through their attorney, contend that the Bingo game out of which the alleged theft took place was itself an illegal activity. Following this line, they argue that there was a fatal defect in the indictment since there was a lack of proof of ownership of the property allegedly stolen. They also contend that the testimony of the witnesses before the Grand Jury cannot be taken as valid.

The facts of this case present a novel question of law. The defendants herein are charged with having presented a false and fraudulent winning Bingo card to obtain the sum of $250, the “ jackpot,” in a game of Bingo. It is a question of fact to be considered on the trial whether or not the Bingo game in question was legal or illegal at the time of its being played' at the time and place in question.

Specifically, then, the question is: Can there be a larceny and a conspiracy in violation of the Penal Law with respect to United States currency employed in the operation of the game herein. It is apparent that the money was United States currency and was subject to proper ownership and possession. This, likewise, is a factual question to be presented before the trial court.

Whether the crimes of grand larceny in the second degree, as charged in the first and second counts of the indictment, were actually committed, and also whether the other counts — third and fourth — can be proven, are matters of fact and law to be determined upon the trial of the indictment. The indictment alleges that the money was the property of the People of the State of New York and/or St. Mel’s Boman Catholic Church. There is no proof herein that the evidence received by the Grand Jury was not sufficient to support the indictment. Therefore, the presumption of regularity attaches. Certainly the defendants are made aware of the charges against them and are in a position to prepare their defense.

Therefore, the application to inspect the Grand Jury minutes and/or to dismiss the indictment is hereby denied.

Submit order accordingly.  