(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 People v Onofre (51 NY2d 476, rearg denied 52 NY2d 1072, cert denied 451 US 987) was decided. That analysis applies equally to a conviction under Penal Law § 240.35 (2). It has been consistently held that casual gambling is not a crime and that casual gamblers are not criminals (see, e.g., People v Stein, 280 App Div 176, 178 [“A mere player is guilty of no crime”], affd 304 NY 834, rearg denied 305 NY 566; People v Solomon, 296 NY 220, 222 [“casual betting or gaming by individuals — as distinguished from betting or gambling as a business or profession — is not a crime”]; Watts v Malatesta, 262 NY 80, 82 [“casual betting or gaming by individuals * * * is not a crime”]; People v Bright, 203 NY 73, 76 [same]; People v Stedeker, 175 NY 57, 62 [“ordinary betting has never been made a crime”]; People v Melton, 152 Misc 2d 649, 651 [“Throwing dice is gambling (see, People ex rel. Ellison v Lavin, 179 NY 164), but participating in gambling of this nature as a casual player is not a crime (Penal Law § 225.00 [4]; see, People ex rel. Guido v Calkins, 9 NY2d 77; Watts v Malatesta, 262 NY 80; People v Cea, 141 Misc 2d 234)”]).
In the instant case, the police observed a group of approximately 8 to 10 young men, including defendant, who were “shooting dice for money” in a residential driveway. Defendant was not engaged in gambling that could be deemed criminal because there is no evidence that he was either advancing gambling activity or profiting therefrom (see, Penal Law § 225.00 [4], [5]; § 225.05). Present — Pine, J.P., Wisner, Kehoe, Gorski and Lawton, JJ. [See 181 Misc 2d 999.]