Opinion
December 10, 1975
Appeal from the District Court of Nassau County, First District, JOHN D. CAPILLI, J.
Alfred I. Rosner and Martin B. Rosner for appellant.
Denis Dillon, District Attorney (William C. Donnino and Philip Tomich of counsel), for respondent.
MEMORANDUM. Judgment of conviction affirmed.
On this appeal from a conviction of attempting to tamper with a sporting event (Penal Law, § 110.00, 180.50 Penal), defendant argues that his actions did not reach the "attempt stage" and that section 180.50 Penal of the Penal Law is unconstitutional.
In order to determine whether defendant's actions constituted an "attempt" as having reached a point where they "tended to effectuate the commission of the crime" no general rule can or should be formulated. The better method of determining whether a certain factual situation is an attempt is on a case by case basis, and where the line is to be drawn must depend on the type of crime involved (People v Werblow, 241 N.Y. 55, 61). Since defendant, a jockey, appeared in the paddock area where he was to mount his horse for the race with the electrical device shortly before post time, his actions went beyond mere preparation and come sufficiently close to the commission of the crime (see People v Collins, 234 N.Y. 355, 359-360; People v Sullivan, 173 N.Y. 122, 133; People v Gormley, 222 App. Div. 256, affd 248 N.Y. 583; cf. People v Rizzo, 246 N.Y. 334).
Section 180.50 Penal of the Penal Law is not unconstitutional especially when read in the light of the Rules and Regulations of the New York State Racing and Wagering Board ( 9 NYCRR 4000.1 et seq.). Moreover, the Legislature did not delegate it legislative powers in derogation of section 1 of article III of the New York State Constitution. It is clear that the Legislature has the general power to delegate to administrative authorities and agencies the power to establish rules and administer them. The sole requirement is that a reasonable standard is formulated (see Darweger v Staats, 267 N.Y. 290, 306; People v Malmud, 4 A.D.2d 86; People v Einhorn, 75 Misc.2d 183; People v Carmichael, 56 Misc.2d 388, 391).
Concur: HOGAN, P.J., GLICKMAN and FARLEY, JJ.