People v. Davidson

Pine, J.P., and Gorski, J.

(dissenting). We respectfully dissent, and would affirm the order granting the motion of defendant to set aside the verdict convicting him of loitering (Penal Law § 240.35 [2] [loitering or remaining in a public place for the purpose of gambling with cards, dice or other gaming *812paraphernalia]). In People v Uplinger (58 NY2d 936, cert dismissed 467 US 246), involving a loitering conviction under Penal Law § 240.35 (3), the Court of Appeals reversed the conviction and dismissed the information on the ground that the underlying conduct could not be deemed criminal after…