Opn. No. ( 1981 )

Edward M. Saltzman, Esq. Corporation Counsel, Port Chester

You have asked whether a village may sell confiscated slot machines as antiques. Additionally, you ask what the procedure is for accomplishing the sale.

The possession or sale of a slot machine constitutes the unlawful "possession of a gambling device", which is a class A misdemeanor (Penal Law, § 225.30). Slot machines are considered to be criminal per se as a device designed for an illegal purpose or as inherently contraband (Hechtman, Practice Commentary, McKinney's Penal Law, §225.30). It is an affirmative defense to a prosecution under section 225.30 that the slot machine possessed by the defendant was neither used nor intended to be used in the operation or promotion of unlawful gambling and that the slot machine is an antique (id., § 225.32[1]). Proof that a slot machine was manufactured prior to 1941 conclusively establishes its antiquity (ibid.). Thus, a person possessing or selling an antique slot machine neither used nor intended to be used for unlawful gambling is not absolved from prosecution, but can raise an affirmative defense to such prosecution.

Villages are authorized to sell real and personal property (Village Law, § 1-102[1]). There are no statutory mandates as to the procedure for sale. We believe that the village board may determine the method of sale that serves the public interest (see Informal Opinion of the Attorney General, No. 81-37, copy enclosed). The sale must be for a fair consideration (NY Const, Art VIII, § 1).

We conclude that the possession or sale of a slot machine is a class A misdemeanor. It is an affirmative defense that the slot machine is an antique not used or intended to be used for unlawful gambling.