Regular Session - May 16, 1994
3536
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8 ALBANY, NEW YORK
9 May 16, 1994
10 2:52 p.m.
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13 REGULAR SESSION
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17 SENATOR CHARLES D. COOK, Acting President
18 STEPHEN F. SLOAN, Secretary
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3537
1 P R O C E E D I N G S
2 ACTING PRESIDENT COOK: The
3 Senate will come to order. You all please rise
4 and join me in the Pledge of Allegiance.
5 (The assemblage repeated the
6 Pledge of Allegiance to the Flag.)
7 In the absence of a clergy, shall
8 we pause for a moment of silence.
9 (A moment of silence was
10 observed. )
11 Reading of the Journal.
12 THE SECRETARY: In Senate,
13 Sunday, May 15th. The Senate met pursuant to
14 adjournment, Senator Farley in the Chair upon
15 designation of the Temporary President. The
16 Journal of Saturday, May 14th, was read and
17 approved. On motion, Senate adjourned.
18 ACTING PRESIDENT COOK: Hearing
19 no objection, the Journal stands approved as
20 read.
21 Presentation of petitions.
22 Messages from the Assembly.
23 Messages from the Governor.
3538
1 Reports of standing committees.
2 Reports of select committees.
3 Communications and reports from
4 state officers.
5 Motions and resolutions.
6 SENATOR SKELOS: Mr.
7 President.
8 ACTING PRESIDENT COOK: Senator
9 Skelos.
10 SENATOR SKELOS: Calendar Number
11 992 on the Second Reading Calendar, would you
12 star that bill.
13 ACTING PRESIDENT COOK: Bill is
14 starred.
15 SENATOR SKELOS: And on the Third
16 Reading Calendar, Number 818, would you lay it
17 aside for the day for amendments.
18 ACTING PRESIDENT COOK: Laid
19 aside for the day.
20 Senator DiCarlo.
21 SENATOR DiCARLO: I move the
22 following bills be discharged from their
23 respective committees and be recommitted with
3539
1 instructions to strike the enacting clause:
2 Senator Johnson, 5987-A.
3 ACTING PRESIDENT COOK: Bill is
4 recommitted.
5 SENATOR DiCARLO: Mr. President,
6 I wish to call up Senator Volker's bill, Print
7 Number 7518, recalled from the Assembly which is
8 now at the desk.
9 ACTING PRESIDENT COOK: Secretary
10 will read.
11 THE SECRETARY: By Senator
12 Volker, Senate Bill Number 7518, an act to amend
13 the Town Law, in relation to deadline for annual
14 audit to be completed.
15 SENATOR DiCARLO: Mr. President,
16 I now move to reconsider the vote by which this
17 bill was passed.
18 ACTING PRESIDENT COOK: Secretary
19 will call the roll.
20 (The Secretary called the roll on
21 reconsideration. )
22 THE SECRETARY: Ayes 31.
23 ACTING PRESIDENT COOK: Bill is
3540
1 before the house.
2 SENATOR DiCARLO: Mr. President,
3 I now offer the following amendments.
4 ACTING PRESIDENT COOK:
5 Amendments received and adopted.
6 SENATOR DiCARLO: Mr. President,
7 on page 51, I offer the following amendments to
8 Calendar 855, and Assembly Print 7516, for
9 Senator Libous, and ask that said bill retain
10 its place on third reading.
11 ACTING PRESIDENT COOK:
12 Amendments received.
13 SENATOR DiCARLO: Mr. President,
14 on page 60, I offer the following amendments to
15 Calendar Number 485, for Senator Levy, Senate
16 Print Number 193-A, and ask that said bill
17 retain its place on third reading. Mr.
18 President, please remove the star.
19 ACTING PRESIDENT COOK:
20 Amendments received, and the star is removed.
21 Senator Saland.
22 SENATOR SALAND: Mr. President,
23 on page 61, I'd offer the following amendments
3541
1 to Calendar Number 599, that's Assembly Print
2 9919-A.
3 ACTING PRESIDENT COOK:
4 Amendments received.
5 SENATOR SALAND: I ask that the
6 bill retain its place on Third Reading Calendar.
7 ACTING PRESIDENT COOK: So
8 ordered.
9 Secretary will read some
10 substitutions.
11 THE SECRETARY: On page 5 of
12 today's calendar, Senator Sears moves to
13 discharge the Committee on Health from Assembly
14 Bill Number 9619 and substitute it for the
15 identical Calendar 1037.
16 On page 30, Senator Velella moves
17 to discharge the Committee on Rules from
18 Assembly Bill Number 8794-B and substitute it
19 for the identical Calendar Number 349.
20 ACTING PRESIDENT COOK:
21 Substitutions ordered.
22 Senator Present.
23 SENATOR PRESENT: Recognize
3542
1 Senator Holland, please.
2 ACTING PRESIDENT COOK: Senator
3 Holland.
4 SENATOR HOLLAND: Mr. President,
5 I have a resolution at the desk. I ask that it
6 be read.
7 ACTING PRESIDENT COOK: Secretary
8 will read.
9 THE SECRETARY: Legislative
10 Resolution, by Senator Holland, memorializing
11 Governor Mario M. Cuomo to proclaim May 23rd
12 through 27th, 1994 as Bone Marrow Donor
13 Awareness Week in New York State and honoring
14 Olympic speed skater Kristen Talbot of
15 Schuylerville, New York, for her dedication and
16 consummate commitment to excellence.
17 WHEREAS, this legislative body is
18 justly proud to memorialize Governor Mario M.
19 Cuomo to proclaim May 23rd through 27th, 1994 as
20 Bone Marrow Donor Awareness Week in New York
21 State, and to honor Olympic speed skater and
22 bone marrow donor Kristen Talbot of
23 Schuylerville, New York for her dedication and
3543
1 consummate commitment to excellence;
2 Bone marrow transplants now give
3 people dying of blood-related diseases such as
4 leukemia and aplastic anemia a chance to be
5 cured if a donor can be found whose bone marrow
6 matches their own;
7 An individual has only a 30
8 percent chance of finding a donor among his own
9 family members. Once family members have been
10 tested and no match is found, an individual is
11 faced with only about one in 20,000 unrelated
12 people who will match closely enough to allow
13 the opportunity for a bone marrow donation;
14 Kristen Talbot has been skating
15 since before she entered kindergarten. She's
16 been competing in national championships since
17 age 12 and qualified for her third Olympics,
18 earning the fourth and final spot in the 500
19 meters;
20 Just before competing in the 1994
21 Olympics, Kristen Talbot had bone marrow
22 extracted from both hips at Johns Hopkins in
23 order to save her brother, her brother Jason,
3544
1 who needed a transplant to fight aplastic
2 anemia, a condition that attacks the marrow and
3 slows or halts the production of red and white
4 blood cells;
5 Kristen Talbot's commitment to
6 excellence mirrors those prerogatives of
7 personal initiative and accountability so
8 paradigmatic of our American manner;
9 Through her long and sustained
10 commitment to excellence in the arduous sport of
11 speed skating and her altruism in giving her
12 bone marrow, Kristen Talbot has so unselfishly
13 advanced that spirit of united purpose and
14 shared concern which is the unalterable
15 manifestation of our American experience;
16 Kristen Talbot will dedicate her
17 time and energy to bowl in the Legislative
18 Bowl-a-Thon to raise money for testing in the
19 Legislative Office Building during Bone Marrow
20 Donor Awareness Week;
21 Although national donor registry
22 was begun in 1987 to assist in finding suitable
23 donors from a pool of "typed" readily available
3545
1 volunteers, it is estimated that at least one
2 million potential donors worldwide must be
3 listed on the registry if the majority of the
4 9,000 afflicted individuals presently waiting
5 for matches in the United States are to be
6 saved;
7 Many people in the United States
8 have died because their desperate searches have
9 not produced a matching donor in time; it is
10 vital, therefore, that every effort be made to
11 assure that the donor pool is as large and
12 diverse as possible;
13 Marrow transplants require
14 matching tissue types, which are characterized
15 by complex genetic traits often unique to a
16 particular race, and currently 92 percent of our
17 volunteer donors are Caucasian;
18 It is of critical importance that
19 African-American, Hispanics, Asians and Native
20 Americans, who are presently under-represented
21 on the registry, become volunteers so that the
22 hope can be offered to all Americans in need;
23 In memory of the late Senator
3546
1 Eugene Levy, it is the intent of this
2 legislative body to designate May 23rd through
3 the 27th of 1994 as Bone Marrow Donor Awareness
4 Week in New York State, recognizing and honoring
5 all those who have selflessly donated marrow or
6 been tested as a potential donor, and to enhance
7 public awareness of the desperate need for bone
8 marrow donors, particularly minority donors;
9 During the Bone Marrow Donor
10 Awareness Week, the Bone Marrow Resource
11 Foundation will distribute educational material
12 and conduct a donor drive to test individuals as
13 potential donors in the Legislative Office
14 Building. Donors will be registered in the
15 National Marrow Donor Program through the local
16 donor center at the American Red Cross in
17 Albany;
18 Everyone has the availability to
19 give the "gift of life" by donating bone marrow
20 to someone who faces imminent death from a
21 blood-related disease;
22 Through its commitment to the
23 preservation and enhancement of human life, Bone
3547
1 Marrow Awareness Week so clearly advances that
2 spirit of united purpose and shared concern
3 which is the unalterable manifestation of our
4 American experience;
5 NOW, THEREFORE, BE IT RESOLVED
6 that this legislative body pause in its
7 deliberations to memorialize Governor Mario M.
8 Cuomo to proclaim May 23rd through May 27, 1994
9 as Bone Marrow Awareness Week in New York State
10 and to honor Olympic speed skater Kristen Talbot
11 of Schuylerville, New York, for her dedication
12 and consummate commitment to excellence; and
13 BE IT FURTHER RESOLVED that
14 copies of this resolution, suitably engrossed,
15 be transmitted to the Bone Marrow Resource
16 Foundation, the National Marrow Donor Program,
17 the New York State American Red Cross of Albany
18 and Kristen Talbot, in recognition of their
19 efforts in educating the public and assisting
20 those in need of a bone marrow donation.
21 ACTING PRESIDENT COOK: Senator
22 Holland.
23 SENATOR HOLLAND: Mr. President,
3548
1 as the clerk has mentioned, this was started by
2 Senator Gene Levy five years ago. Gene
3 succumbed to leukemia shortly after that.
4 This is a disease that we can
5 save a lot of lives with. In the five years
6 we've been doing this here on the third floor of
7 the LOB, we typed a lot of people. We need to
8 type, as the clerk has said, about a million
9 people in order to take care of the 9,000 people
10 that are on the list right now.
11 It costs about $50 each to type
12 each individual. We have to raise money for
13 that. We've been -- we did last year -- we had
14 a Bowl-a-Thon the year before that. We raised
15 $13,000 last year. We're going to do the same
16 thing tomorrow night. The lobbyists are
17 gracious enough to donate money for this.
18 The typing will be next week, the
19 23rd and 24th on the third floor of the LOB. I
20 ask anyone who is willing to have their blood
21 typed to come there on that day, 9:00 to 5:00,
22 they only take about a teaspoon of blood, it's a
23 very easy thing to do and you could save a
3549
1 life.
2 In the five years that we've been
3 doing it, we've met a number of people who have
4 donated and then been called and today we are -
5 have the pleasure to welcome Kristen Talbot. I
6 think many of you heard the story of Kristen
7 Talbot. She's a speed skater. She's been in
8 the Olympics three times. This year prior to
9 the Olympics, her brother came down with
10 aplastic anemia.
11 As you heard, in your family,
12 it's a 30 percent chance to have a match.
13 Kristen matched her brother, so before she went
14 to the Olympics this year for the third time she
15 donated bone marrow to her brother and we talked
16 earlier of this, and she did go to the Olympics
17 after that. She said she wasn't tired but she
18 did miss about ten weeks, I think, of skating
19 which cost her in that.
20 She's been competing in the
21 national championships since the age of 12 and
22 qualified, as I said, for her third Olympics.
23 She's a fighter and is committed to her sport of
3550
1 speed skating. However, she put her personal
2 initiative behind her and gave bone marrow when
3 her brother needed it.
4 Kristen is also donating her time
5 to bowl tomorrow night -- and she said she's a
6 great bowler -- in this year's legislative
7 Bowl-a-Thon to raise funds. Because of her
8 unselfishness, I am proud to introduce this
9 resolution which recognizes Kristen's selfless
10 giving and devotion to her sport, as well as
11 designating May the 23rd through the 27th as
12 Bone Marrow Awareness Week.
13 I do want to also thank all the
14 people who donate. The bowling center is
15 donated; the food is donated. Lots of people
16 volunteer. Assemblyman Jeff Aubry is the
17 sponsor in the Assembly. We can save lives, and
18 I urge anybody who has five minutes on the 23rd
19 and 24th to go down and have your blood typed.
20 Thank you very much.
21 ACTING PRESIDENT COOK: Kristen,
22 we are very honored and humbled to have you here
23 with us today. These acts of unselfishness that
3551
1 people do in behalf of other people really put
2 the rest of us to shame, and we are just so
3 honored that you've seen fit to come here and
4 join us today, and that you have been willing to
5 join as well in the greater effort to raise
6 funds so that other people may benefit, as your
7 brother has benefited.
8 Senator Present, is it acceptable
9 to open the resolution for all members if
10 there's no one who objects?
11 SENATOR PRESENT: Right.
12 ACTING PRESIDENT COOK: There
13 being no objection, then, all members are on the
14 resolution.
15 The question occurs on the
16 resolution. All in favor, say aye.
17 (Response of "Aye.")
18 All those opposed nay.
19 (There was no response. )
20 The resolution is adopted.
21 Senator Present.
22 SENATOR PRESENT: Mr. President,
23 we take up the non-controversial calendar,
3552
1 please.
2 ACTING PRESIDENT COOK: Secretary
3 will read.
4 THE SECRETARY: On page 27 of the
5 Calendar, Calendar Number 6, by Senator Volker,
6 Senate Bill Number 246-B, an act to amend the
7 Penal Law, in relation to the crime of false
8 personation.
9 ACTING PRESIDENT COOK: Call the
10 roll. Last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT COOK: Then call
14 the roll. Call the roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 39.
17 ACTING PRESIDENT COOK: The bill
18 is passed.
19 THE SECRETARY: Calendar Number
20 127, by Senator Farley, Senate Bill Number 342
21 A, an act to amend the Real Property Tax Law, in
22 relation to sale by a tax district of lands in
23 the forest preserve.
3553
1 ACTING PRESIDENT COOK: Last
2 section.
3 THE SECRETARY: Section 2. This
4 act shall take effect immediately.
5 ACTING PRESIDENT COOK: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 39.
9 ACTING PRESIDENT COOK: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 303, by Senator Lack, Senate Bill Number 6694-A,
13 an act to amend the Criminal Procedure Law, in
14 relation to pre-sentence conditions.
15 ACTING PRESIDENT COOK: Last
16 section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT COOK: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 40.
23 ACTING PRESIDENT COOK: The bill
3554
1 is passed.
2 THE SECRETARY: Calendar Number
3 359, by Senator Wright, Senate Bill Number 6861
4 A, authorize the city of Ogdensburg School
5 District to finance the projected accumulated
6 deficit.
7 ACTING PRESIDENT KUHL: Last
8 section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 40.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 THE SECRETARY: Calendar Number
18 465, by Senator Farley, Senate Bill Number 2424
19 A, an act to amend the Banking Law, Estates,
20 Powers and Trusts Law.
21 ACTING PRESIDENT KUHL: Last
22 section.
23 THE SECRETARY: Section 2. This
3555
1 act shall take effect immediately.
2 ACTING PRESIDENT KUHL: Call the
3 roll.
4 (The Secretary called the roll. )
5 THE SECRETARY: Ayes 40.
6 ACTING PRESIDENT KUHL: The bill
7 is passed.
8 THE SECRETARY: Calendar Number
9 632, by Senator Holland, Senate Bill Number
10 207-A.
11 SENATOR GOLD: Lay aside.
12 ACTING PRESIDENT KUHL: Lay the
13 bill aside.
14 THE SECRETARY: Calendar Number
15 654, by Senator Hannon.
16 SENATOR GOLD: Lay it aside,
17 please.
18 ACTING PRESIDENT KUHL: Lay the
19 bill aside.
20 THE SECRETARY: Calendar Number
21 669, by Senator Cook, Senate Bill Number 7710-A,
22 authorize the New Paltz Central School District
23 to finance deficits.
3556
1 ACTING PRESIDENT KUHL: Last
2 section.
3 THE SECRETARY: Section 5. This
4 act shall take effect immediately.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 40.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 671, by Senator Lack, Senate Bill Number 6963
13 B, Estates, Powers and Trusts Law, in relation
14 to the division of trusts.
15 ACTING PRESIDENT KUHL: Last
16 section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 40.
23 ACTING PRESIDENT KUHL: The bill
3557
1 is passed.
2 THE SECRETARY: Calendar Number
3 693, by Senator Maltese, Senate Bill Number
4 7446-A, an act to amend the Criminal Procedure
5 Law.
6 ACTING PRESIDENT KUHL: Last
7 section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 (The Secretary called the roll. )
13 THE SECRETARY: Ayes 40.
14 ACTING PRESIDENT KUHL: The bill
15 is passed.
16 THE SECRETARY: Calendar Number
17 694, by member of the Assembly Lentol, Assembly
18 Bill Number 6869, an act to amend the Civil
19 Practice Law and Rules.
20 ACTING PRESIDENT KUHL: Last
21 section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
3558
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll. )
4 THE SECRETARY: Ayes 41.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 696, by member of the Assembly Cahill, Assembly
9 Bill Number 10828, Criminal Procedure Law, in
10 relation to the service of an order.
11 ACTING PRESIDENT KUHL: Last
12 section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 THE SECRETARY: Ayes 41.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 699, by Senator Volker, Senate Bill Number 7574,
23 an act to amend the Criminal -
3559
1 SENATOR GOLD: Lay the bill
2 aside.
3 ACTING PRESIDENT KUHL: Lay the
4 bill aside.
5 THE SECRETARY: Calendar Number
6 727, by Senator Hannon, Senate Bill Number 6627,
7 an act to amend the Administrative Code of the
8 city of New York.
9 SENATOR GOLD: Lay aside.
10 ACTING PRESIDENT KUHL: Lay the
11 bill aside.
12 THE SECRETARY: Calendar Number
13 746, by Senator Hannon, Senate Bill Number 6337,
14 an act to amend the Public Authorities Law.
15 SENATOR HANNON: Lay aside for
16 the day.
17 ACTING PRESIDENT KUHL: Lay the
18 bill aside for the day.
19 THE SECRETARY: Calendar Number
20 752, by Senator Tully, Senate Bill Number 7717,
21 amends Chapter 295 of the Laws of 1990, amending
22 the New York State Medical Care Facilities
23 Finance Agency.
3560
1 ACTING PRESIDENT KUHL: Last
2 section.
3 THE SECRETARY: Section 2. This
4 act shall take effect immediately.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 42.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 753, by Senator Tully, Senate Bill Number 7751
13 A, an act to amend the Public Health Law.
14 ACTING PRESIDENT KUHL: Read the
15 last section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll. )
21 THE SECRETARY: Ayes 42.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
3561
1 THE SECRETARY: Calendar Number
2 767, by Senator Skelos, Senate Bill Number 2272
3 A, an act to amend the Real Property Tax Law,
4 real property tax exemption for persons 65 years
5 of age or over.
6 ACTING PRESIDENT KUHL: Read the
7 last section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 (The Secretary called the roll. )
13 THE SECRETARY: Ayes 43.
14 ACTING PRESIDENT KUHL: The bill
15 is passed.
16 THE SECRETARY: Calendar Number
17 773, by Senator Saland, Senate Bill Number
18 4331.
19 SENATOR PRESENT: Lay it aside
20 temporarily.
21 ACTING PRESIDENT KUHL: Lay the
22 bill aside temporarily.
23 THE SECRETARY: Calendar Number
3562
1 836, by Senator Maltese, Senate Bill Number
2 3294, an act to amend the Correction Law.
3 ACTING PRESIDENT KUHL: Read the
4 last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 SENATOR GOLD: Lay it aside.
8 ACTING PRESIDENT KUHL: Lay the
9 bill aside.
10 SENATOR GOLD: Hold it.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 SENATOR GOLD: Hold on a second.
14 ACTING PRESIDENT KUHL: Call the
15 roll on Calendar Number 836.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 43.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 848, by Senator Libous, Senate Bill Number 6928
22 A, an act to amend the Mental Hygiene Law.
23 ACTING PRESIDENT KUHL: Last
3563
1 section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 44.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 849, by Senator Libous, Senate Bill Number 6930
12 A, an act to amend the Mental Hygiene Law.
13 SENATOR PRESENT: Lay it aside
14 for the day.
15 ACTING PRESIDENT KUHL: Lay that
16 bill aside for the day.
17 THE SECRETARY: Calendar Number
18 869, by Senator Trunzo, Senate Bill Number 4823,
19 an act to amend the Civil Service Law.
20 ACTING PRESIDENT KUHL: Read the
21 last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
3564
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll. )
4 THE SECRETARY: Ayes 44.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 870, by Senator Trunzo, Senate Bill Number 6889
9 A, an act to amend the General Municipal Law and
10 the Retirement and Social Security Law.
11 ACTING PRESIDENT KUHL: Read the
12 last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 THE SECRETARY: Ayes 44.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 872, by Senator Velella, Senate Bill Number
23 7198, an act to amend the Administrative Code of
3565
1 the city of New York.
2 ACTING PRESIDENT KUHL: Read the
3 last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT KUHL: Call the
7 roll.
8 (The Secretary called the roll. )
9 THE SECRETARY: Ayes 44.
10 ACTING PRESIDENT KUHL: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 876, by Senator Trunzo, Senate Bill Number 7792,
14 an act to amend the Administrative Code of the
15 city of New York.
16 ACTING PRESIDENT KUHL: Read the
17 last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 44.
3566
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 THE SECRETARY: Calendar Number
4 877, by Senator Skelos, Senate Bill Number 7862,
5 an act to amend the Retirement and Social
6 Security Law.
7 ACTING PRESIDENT KUHL: Read the
8 last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 44.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 THE SECRETARY: Calendar Number
18 879, by Senator Present, Senate Bill Number
19 2108, an act to amend the Insurance Law, in
20 relation to coverage for mammography screening.
21 SENATOR SOLOMON: Explanation.
22 ACTING PRESIDENT KUHL: Lay the
23 bill aside.
3567
1 THE SECRETARY: Calendar Number
2 894, by Senator Rath, Senate Bill Number 7054-A,
3 an act to amend the State Administrative
4 Procedure Act.
5 SENATOR GOLD: Lay it aside.
6 ACTING PRESIDENT KUHL: Lay the
7 bill aside.
8 THE SECRETARY: Calendar Number
9 895, by Senator Skelos, Senate Bill Number
10 7129-A, an act to amend the Economic Development
11 Law.
12 ACTING PRESIDENT KUHL: Read the
13 last section.
14 THE SECRETARY: Section 2. This
15 act shall take effect immediately.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 44.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 THE SECRETARY: Calendar Number
23 896, by Senator Rath, Senate -
3568
1 SENATOR PRESENT: Lay it aside
2 for the day, please.
3 ACTING PRESIDENT KUHL: Lay the
4 bill aside for the day.
5 SENATOR PRESENT: And the next
6 two bills, lay aside for the day.
7 ACTING PRESIDENT KUHL: Lay
8 Calendar Number 898 and 900 aside for the day.
9 Senator Present, that completes
10 the non-controversial calendar. What's your
11 pleasure, sir?
12 SENATOR GOLD: Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Leichter.
15 SENATOR LEICHTER: May I have -
16 yes, Mr. President. May I have unanimous
17 consent to be recorded in the negative on
18 Calendar Number 127, please.
19 ACTING PRESIDENT KUHL: Without
20 objection, Senator Leichter recorded in the
21 negative on Calendar Number 127.
22 SENATOR LEICHTER: Thank you.
23 ACTING PRESIDENT KUHL: Senator
3569
1 Present.
2 SENATOR PRESENT: Mr. President,
3 it comes that time when I ask that the Senate
4 stand at ease for a few moments.
5 ACTING PRESIDENT KUHL: The
6 Senate will stand at ease for a few moments.
7 (The Senate stood at ease from
8 3:17 p.m. to 4:01 p.m.)
9 ACTING PRESIDENT KUHL: The
10 Senate will come to order. Ask the staff to
11 take their places, members to take their seats.
12 Senator Present, we have a little
13 housekeeping. Shall we take that up first?
14 SENATOR PRESENT: First, take
15 that up, and then we'll take up the
16 controversial calendar, please.
17 ACTING PRESIDENT KUHL: Senator
18 Velella.
19 SENATOR VELELLA: Mr. President,
20 I move to reconsider the vote by which my bill
21 7198, Calendar Number 872, passed.
22 ACTING PRESIDENT KUHL: On the
23 motion to reconsider the vote, the clerk will
3570
1 call the roll.
2 (The Secretary called the roll on
3 reconsideration.
4 ACTING PRESIDENT KUHL: Bill is
5 laid aside.
6 Clerk will call the controversial
7 calendar.
8 THE SECRETARY: On page 37,
9 Calendar Number 632, by Senator Holland, Senate
10 Bill Number 207-A, an act to amend the Penal
11 Law.
12 SENATOR GOLD: Explanation.
13 ACTING PRESIDENT KUHL: Senator
14 Holland, explanation has been asked for.
15 SENATOR HOLLAND: This bill would
16 allow persons who have a valid license to carry
17 a pistol or revolver in New York State, anywhere
18 in New York State, to also carry that pistol or
19 revolver in the city of New York.
20 The bill really is to correct an
21 inequity in the law as far as I'm concerned, and
22 another example of the two-state situation we
23 have with upstate New York and the -- the city
3571
1 of New York. It simply says that, if you're
2 issued a valid pistol license in any of the 57
3 counties, you can carry that in the city of New
4 York.
5 That is illegal today, although
6 anybody who is issued a pistol license in the
7 city of New York can carry it any place in the
8 state of New York. That's unfair, not the right
9 thing.
10 Now, I know you're going to say
11 well, people will steal the weapons. That's -
12 I don't think that's true. I don't think it's
13 true at all. If somebody wants weapons, you
14 know as well as I do, and you've brought it up
15 on the floor, they can go to Virginia and get
16 the weapons and bring them up here. They're not
17 going to steal them from the people bringing
18 them down here.
19 I might also tell you again, as
20 I've told you every year, that when I was county
21 clerk I consolidated the pistol issuing process
22 in the county of Rockland from all the different
23 police departments to the sheriff and the county
3572
1 clerk's office and cut down the delivery of the
2 system from 13 months to three months and, if
3 anybody is issued a pistol license in the state
4 of New York, first of all, you must have your
5 fingerprints taken. You must have a background
6 check. Fingerprints are run by the FBI, the
7 BCI; a written statement and your resume is run
8 by the Health Department and the Mental Health
9 Department in the county of Rockland. We also
10 require a statement from your spouse or the
11 person you live with that they don't object to
12 your having a pistol license, and they are given
13 education on handling weapons as well. So there
14 is no reason in my mind why it shouldn't be a
15 one-state situation, and that's what this bill
16 does.
17 SENATOR GOLD: Mr. President.
18 ACTING PRESIDENT KUHL: Chair
19 recognizes Senator Gold.
20 SENATOR GOLD: Thank you.
21 Will the gentleman yield to a
22 question, please?
23 ACTING PRESIDENT KUHL: Senator
3573
1 Holland, will you yield?
2 SENATOR HOLLAND: Yes.
3 ACTING PRESIDENT KUHL: Senator
4 does, Senator Gold.
5 SENATOR GOLD: Senator, do you
6 have any cities in your Senate district?
7 SENATOR HOLLAND: No.
8 SENATOR GOLD: It's a shame.
9 Towns?
10 SENATOR HOLLAND: Towns, yes.
11 SENATOR GOLD: Senator yield to a
12 question?
13 ACTING PRESIDENT KUHL: Senator
14 Holland, you continue to yield?
15 SENATOR HOLLAND: Yes.
16 ACTING PRESIDENT KUHL: Senator
17 does.
18 SENATOR GOLD: Senator, do any of
19 those towns that you represent have any local
20 ordinances at all in terms of conduct within
21 them, speed of vehicles or any other ordinances
22 that deal with conduct within their borders?
23 SENATOR HOLLAND: I'm sure you're
3574
1 right.
2 SENATOR GOLD: Well, Senator, I
3 have a memo from the mayor of the city of New
4 York, the Republican mayor of the city of New
5 York, which mirrors exactly the prior memo of
6 the Democratic mayors of the city of New York,
7 and he says in the last line of this memo, "The
8 New York City Police Department strongly opposes
9 this bill -- these bills." Actually, it talks
10 about your bill and also the Assembly version.
11 Senator, don't you think that the
12 city of New York has a right to control conduct
13 within its borders, particularly conduct as
14 serious as dealing with carrying and possession
15 of weapons?
16 SENATOR HOLLAND: Certainly I see
17 your point, Senator, but I really don't think
18 so. I think, in this situation, it should be a
19 one-state situation and, if people who are
20 issued pistol licenses in the city of New York
21 are allowed to carry them throughout the rest of
22 the state, it should be reciprocal as far as I'm
23 concerned.
3575
1 SENATOR GOLD: Thank you.
2 Mr. President.
3 ACTING PRESIDENT KUHL: Senator
4 Gold, on the bill.
5 SENATOR GOLD: This is a bill
6 which we've had before, we will have again,
7 because it will never see the light of day, I'm
8 sure, in the Assembly, and it's a difficult
9 situation. I remember one of the great men in
10 legislative history, Senator Levy, who used to
11 talk about his wife being afraid to come to the
12 city of New York unless she had a gun, and all I
13 can do is to repeat very briefly what I've said
14 in the past.
15 New York City is the Big Apple.
16 New York City is a great city, but if you have
17 people from upstate New York who feel that they
18 cannot visit us without your gun, without
19 bringing their guns, well, then don't visit. I
20 mean we don't want to lose the tourism; we don't
21 want to lose the economic value but, if the only
22 way you can come to New York is if you bring
23 your weapons, then I tell you, don't come. The
3576
1 mayor says don't come. Our police commissioner
2 says don't come, and that's really it.
3 I mean to argue over the
4 difficulties in New York City and people not
5 feeling safe, to argue about a statewide
6 necessity for these kind of controls, we are
7 very unsympathetic, meaning the people from New
8 York City, with these kinds of arguments, and we
9 respect the fact that, in your local areas,
10 you're very careful about who you give gun
11 permits to, and I respect that, and I respect
12 that they're fingerprinted and I respect all the
13 things you do, but I also tell you that when you
14 are the elected mayor of millions of people
15 responsible for the city of New York,
16 responsible for its safety, and you're trying as
17 hard as I'm sure this present mayor is doing and
18 I know the prior mayor was very successful and
19 crime fell during the Dinkins administration -
20 please, let's not forget that -- and they say,
21 We will take the responsibility, we don't want
22 these guns in the city of New York, and the
23 issue of whether or not there are illegal guns
3577
1 in the city of New York is not the issue. The
2 issue is they don't want the guns in the city,
3 so once again, we will call for a slow roll
4 call. I won't read out the names of the
5 negatives, because we've had this so many times
6 and it's not an issue that people will likely
7 forget.
8 ACTING PRESIDENT KUHL: The Chair
9 recognizes Senator Leichter.
10 SENATOR LEICHTER: Thank you, Mr.
11 President.
12 My colleagues, you know, when I
13 saw this bill, I said, Well, we've had it be
14 fore; I mean what's new? But there are some
15 things that are new and maybe make it appropri
16 ate to get up and comment on this bill.
17 I used to debate it at great
18 length with Senator Levy, and I -- everyone who
19 served with him, I loved him, but I thought he
20 was wrong in this particular issue, and I think
21 you're wrong, Senator Holland, to carry on that
22 bill.
23 But let me tell you what's new.
3578
1 Just today in the New York Times was an article
2 that violence with hand guns in the United
3 States in the last two years has increased, I
4 think the figure was 20 -- close to 25 percent.
5 More and more crimes are being committed with
6 hand guns; more violence occurs with hand guns;
7 more people are being shot with hand guns
8 inadvertently, children finding guns in a
9 drawer, playing with it, shooting themselves or
10 shooting a member of the family.
11 Now, I appreciate that there's
12 local licensing, but conditions in the city of
13 New York are different. Unfortunately, in some
14 respects there probably is more violence in the
15 city of New York. We're trying to deal with
16 it. The mayor is trying to deal with it, but as
17 a consequence you must have in mind local
18 licensing requirements, and I thought that
19 Senator Gold's analogy to localities imposing
20 their own speed limits was really very apt.
21 There are individual community
22 differentiations, circumstances, and you can't
23 just homogenize the whole state, particularly
3579
1 when it comes to something as sensitive as gun
2 control. We have a terrible time in the city of
3 New York with illegal guns, and one of the ways
4 that illegal guns find their way in the streets
5 is they start out as legal, and every year we
6 have hundreds of guns that are legal but that
7 are stolen in the city of New York and, when I
8 heard Senator Levy talk about his wife with a
9 gun, I was scared. I was scared for her that
10 she should find herself in a situation where she
11 might use that gun considering some of the
12 people in the city of New York and their
13 prevalence towards violence, and I was scared
14 for the people of the city of New York if that
15 gun, as can happen and happens, should be taken
16 from her or stolen and find its way onto the
17 illegal market.
18 Just yesterday, I had a
19 conference on crime in the city of New York and
20 I wish that people, you my colleagues, had been
21 there because it was really one of the most
22 intelligent discussions. We had excellent
23 people. We had our commissioner of the Division
3580
1 of Criminal Justice Services, Girgenti, Jerry
2 Lynch, the president of John Jay College, the
3 Bronx Borough Commander, Catherine Abbate, and
4 just a wonderful and inspirational person,
5 Stephen McDonald, the former police officer who
6 was badly wounded and paralyzed as a result of
7 an assault on him by a young person with a hand
8 gun; and one of the things that they all agreed
9 on is that we have to take stronger measures to
10 get guns off the streets of New York City and,
11 for that matter, in our communities throughout
12 the state and in the nation.
13 So we really plead with you to be
14 aware of the needs of the city of New York, the
15 special circumstances. Listen to our local
16 elected officials. Listen to our mayor who
17 says, Please don't pass this bill, and keep in
18 mind that the American people are changing on
19 the issue of gun control. We saw it in the
20 House of Representatives. I think they're
21 tired, they're fed up with the mayhem, with the
22 violence. They realize guns are dangerous.
23 They realize that the NRA slogan, Guns Don't
3581
1 Kill, People Kill, of course, is perfectly
2 stupid, because people can generally kill only
3 because they have guns.
4 And so we say don't pass measures
5 that place the people of the city of New York at
6 greater risk.
7 SENATOR GOLD: Slow roll call.
8 ACTING PRESIDENT KUHL: Senator
9 Montgomery.
10 SENATOR MONTGOMERY: Mr.
11 President, I -- this is one of the bills that I
12 recall, as well as Senator Leichter has said
13 that Senator Levy used to bring to the floor and
14 it was one of the few times that I would
15 actually debate against him, because we were
16 friends and agreed on so many things.
17 I just wonder if Senator Holland
18 would yield to a question. I know that Senator
19 Levy said that he was afraid that his wife
20 needed her pistol in her mink coat, she had to
21 have it, she wanted to have it when she came to
22 the City, and I just wonder if Senator Holland
23 would yield to a question.
3582
1 SENATOR HOLLAND: Sure.
2 ACTING PRESIDENT KUHL: Senator
3 Holland, will you yield? Senator Holland
4 yields, Senator Montgomery.
5 SENATOR MONTGOMERY: Thank you,
6 Senator Holland.
7 Senator Holland, similar to
8 Senator Levy who was afraid that his wife would
9 be shot if she didn't have a pistol in her mink
10 coat, is it, for you, a similar rationale for
11 this bill? Do you need a pistol in your jacket
12 or does your wife need her pistol in her mink
13 coat when you come to visit Senator Padavan in
14 his district, Senator Goodman in his district,
15 Senator Marchi in Staten Island, Senator Maltese
16 in Queens? Are you afraid to come without your
17 pistol, and you need this bill to resolve that
18 problem for you? Is that the rationale? I'm
19 just curious, Senator.
20 SENATOR HOLLAND: My wife neither
21 has a mink coat nor pistol. Nor do I.
22 SENATOR MONTGOMERY: So is there
23 -- is there a -- a growing and -
3583
1 ACTING PRESIDENT KUHL: Senator
2 Montgomery, are you asking Senator Holland to
3 continue to yield?
4 SENATOR MONTGOMERY: Yes, if you
5 would continue to yield.
6 ACTING PRESIDENT KUHL: Senator
7 Holland yields, Senator Montgomery.
8 SENATOR MONTGOMERY: Is there a
9 growing need among your constituents that they
10 come into the city and they're afraid and they
11 need this legislation?
12 SENATOR HOLLAND: Senator, I
13 think there is. I think the city of New York is
14 a dangerous place to be; it's more dangerous
15 than upstate. Somebody mentioned tourists and
16 tourists shouldn't carry weapons. That's what's
17 happening in New York and Florida; they're
18 shooting tourists, and people are afraid to go
19 into the city of New York.
20 It's hurting your economy; it's
21 hurting your tax base, there's no question about
22 it, and the people that have licensed hand guns
23 are the people not creating problems, and we're
3584
1 only talking about the licensed hand guns.
2 We're not talking about the illegal hand guns.
3 They should be controlled, there's no question
4 about it, but we're only talking about the
5 licensed hand guns.
6 SENATOR MONTGOMERY: Thank you.
7 Thank you, Senator.
8 Mr. President, briefly on the
9 bill.
10 ACTING PRESIDENT KUHL: Senator
11 Montgomery, on the bill.
12 SENATOR MONTGOMERY: I am
13 obviously very, very much opposed to this
14 legislation for several reasons.
15 One is we certainly do not want
16 to encourage people to bring additional weapons
17 into the city without having the appropriate
18 licensing as per our local government, and I
19 think that, although people use that rationale
20 frequently, that they need their weapon to
21 protect themselves from whatever they envision
22 as the enemy and the threat, we know that in
23 fact there are very, very, very few instances
3585
1 where people successfully defend themselves by
2 the use of a gun, by killing the enemy
3 essentially.
4 So this, in my -- in my
5 estimation, is in the least a false reason for
6 having -- for carrying a weapon, and I don't
7 know if there are people like in this room, many
8 of us or if any of us has chosen to carry a
9 weapon, because we want to defend ourselves, we
10 want to get our enemies, we want to do whatever
11 people say that they use weapons for, and
12 certainly those of us in this room who hunt as a
13 sport don't bring our weapons with us as we just
14 move around in society, in the streets and at
15 work, and I don't know how many of us in this
16 room take a weapon when we go out socially. I
17 don't suppose anyone, but I -- I would not --I
18 would not assume that no one does, but my
19 assumption is that most of us certainly don't,
20 and so I don't know what -- what people would
21 want to carry weapons, especially people like us
22 in this room.
23 Why would we need to have a
3586
1 license to bring a weapon into a city that
2 already has too many weapons? And obviously,
3 the move now, even from within New York City, is
4 to rid our street of weapons, not to encourage
5 people, and at this very moment, Mayor Giuliani
6 and Governor Cuomo are working together to
7 expand our tourism industry, bringing people
8 into the City from other states, other parts of
9 the state, to encourage an economic upturn in
10 terms of our tourism industry, to bring people
11 into the hotels, who have been using the other
12 facilities, the cultural institutions, to really
13 encourage a revitalization of that aspect of the
14 economy in the City, and here we are in the
15 state, and Senator -- led by Senator Holland,
16 and I say, Senator Holland, certainly I agree
17 with many of the things that he has proposed but
18 this movement led by him, I think is a terrible
19 mistake, that you're saying we want you to come
20 and we want you to bring your guns and in order
21 to make it possible for you to bring more guns
22 to the City as tourists, as visitors, as
23 whatever, we want you -- we want the City to
3587
1 relax its licensing requirements.
2 So, Senator Holland, clearly this
3 is a mistake and, as I said, I argue against it
4 when Senator Levy used to propose it, and I -- I
5 have the same reason for opposing it now, and I
6 wish that you would --I wish that you would
7 change your mind because this goes against
8 everything that we are trying to encourage and
9 do in the state of New York.
10 Thank you, Mr. President.
11 ACTING PRESIDENT KUHL: The Chair
12 recognizes Senator Dollinger.
13 SENATOR DOLLINGER: Thank you,
14 Mr. President.
15 I voted against this bill in the
16 past, and I appreciate Senator Gold's comments
17 about let's just get it over with and have this
18 vote. I think it's probably somewhat predict
19 able what would happen but I have to respond to
20 a couple of the issues that have been raised.
21 One was, at least as I understood
22 it, Senator Holland, you said that this would
23 basically make New York city safe for visitors.
3588
1 More people would want to go into the city
2 because the visitors who want to bring their
3 guns with them are somehow going to feel safe.
4 What I hear in the memorandum of
5 opposition from the city of New York is, while
6 you may make it feel a little bit safer for
7 visitors, you will make it more dangerous for
8 the people that live there. They don't want you
9 to bring your gun into New York City, and it
10 seems to me that one of our jobs in this body is
11 to recognize, when someone says we don't want
12 you to bring something into our house that's
13 dangerous, we ought to recognize that and give
14 them the ability to decide what comes in their
15 house or not.
16 Now, I'm trying to draw an
17 analogy in my own house. I have a smoke-free
18 house. I have two children very sensitive to
19 ambient smoke, so I have a little sign on my
20 house that says, Please don't smoke if you come
21 in my house, because I think it's dangerous and
22 if someone walked to the door of my house and
23 knocked on the door and said, "I'm going to
3589
1 bring my cigarettes in because I don't think
2 they're dangerous," I would tell them, "I don't
3 care what you think; it's my house and what I
4 think is important," and if I think it's
5 dangerous, you can leave your cigarettes out in
6 the street or you can come around to my back
7 yard where all my friends who smoke go out on my
8 back porch, my screened in back porch and
9 smoke. I'm willing to tolerate that. I set the
10 rules of the house.
11 ACTING PRESIDENT KUHL: Senator
12 Dollinger, excuse me. Senator Velella?
13 SENATOR VELELLA: Will you yield?
14 SENATOR DOLLINGER: Will I yield?
15 Yes, Mr. President, I will.
16 SENATOR VELELLA: I happen to
17 live in New York City, and can you tell me what
18 basis you are using to say that the people of
19 New York City don't want tourists to come into
20 the City to have guns if they are, in fact,
21 licensed and approved elsewhere in the state?
22 As one resident, I don't have a
23 problem with somebody who's licensed from your
3590
1 district who is a reputable person who has been
2 approved by your government coming into my city
3 carrying a weapon. I don't know. Have you
4 taken a poll, or how do you presume to speak for
5 the people of New York City?
6 SENATOR DOLLINGER: Well, I'm not
7 speaking for the people of New York City.
8 They've spoken pretty definitively themselves.
9 There's a man that sits on, I don't know, Gracie
10 Mansion, I guess they call it, he's sat there,
11 one of them sat there for four years and then he
12 wrote this memo, and then the guy who took his
13 place was elected by the Republicans, wrote us a
14 memo which I looked at and it's identical word
15 for word, not one single word is changed.
16 SENATOR VELELLA: Senator, if
17 you'd yield for another question.
18 SENATOR DOLLINGER: He's the
19 elected representative.
20 ACTING PRESIDENT KUHL: Senator
21 Dollinger, Senator Velella is asking you to
22 yield.
23 SENATOR DOLLINGER: Mr. President,
3591
1 I'm just tryin' to respond and I'll -- I'll
2 yield again.
3 ACTING PRESIDENT KUHL: Please
4 continue.
5 SENATOR DOLLINGER: It seems to
6 me when we look to our municipalities, we're
7 constantly looking to cities, we're looking to
8 city councils or we're looking to the designated
9 representative who got two million votes, two
10 and a half million votes from the people of the
11 city of New York, and they elevated him to
12 become the mayor, and that's what he says,
13 Please if you want to come to New York City, get
14 a permit from us in New York City and your state
15 permit isn't going to carry -- isn't going to
16 allow you to carry a weapon in New York City.
17 I'm respecting his wishes, not
18 imposing my own.
19 I'll now yield, Mr. President.
20 ACTING PRESIDENT KUHL: Senator
21 Dollinger will now yield to another question.
22 SENATOR VELELLA: Senator
23 Dollinger, do you see no difference between the
3592
1 mayor of the city of New York taking a position
2 on a particular issue and making a statement on
3 the floor of the state Senate that the people of
4 the city of New York do or do not want some
5 thing? There may not ever be any inconsistency
6 in your mind there.
7 SENATOR DOLLINGER: Mr.
8 President, in response I acknowledge that there
9 can be an inconsistency between the electorate
10 and it's elected officials. Unfortunately, it's
11 not -
12 SENATOR VELELLA: Thank you,
13 Senator. Your explanation is satisfactory.
14 SENATOR DOLLINGER:
15 Unfortunately, in this democracy, I have no
16 other way of looking to that electorate other
17 than the people that they elect to represent
18 them. I guess the same thing could be said to
19 follow your logic, Senator, the same thing could
20 be said of the 36 people who sit on that side of
21 the floor with respect to the guns issue and
22 I've been trying to amend the gun bills for the
23 last three and a half months, to attach a ban on
3593
1 assault weapons. What I'm told is that 36
2 members of the Senate representing the views of
3 their constituents oppose that. So I guess the
4 elected representatives, at least from my point
5 of view, if your argument were carried to its
6 natural conclusion, I would argue that that the
7 36 members over there don't represent the
8 electorate either.
9 SENATOR VELELLA: Senator, one
10 final question. Would you yield to it?
11 SENATOR DOLLINGER: I'd be glad
12 to.
13 SENATOR VELELLA: You would have
14 no -
15 ACTING PRESIDENT KUHL: The
16 Senator yields.
17 SENATOR VELELLA: You would have
18 no problem then if I ordered a transcript of
19 this and read back to you when we're talking
20 about some other City issues that position that
21 the mayor takes by reminding you that that's
22 what the people of the city of New York want and
23 that you have an obligation to fulfill that
3594
1 wish?
2 SENATOR DOLLINGER: I -
3 certainly, Mr. President, in response to the
4 question, I think in that instance we're doing
5 two things: One, we're responding to the person
6 that talks and, two, we're making an independent
7 judgment. But in this case we're imposing on
8 the people of the city of New York -- in this
9 case we're imposing on the people of the city of
10 New York our views about what we think is
11 acceptable in the city of New York, and I stand
12 by -- I stand by what the mayor tells me.
13 If the Senator has got some other
14 person in New York City that I should be
15 listening to, I'd be glad to do it.
16 But to return the point I was
17 making, Mr. President, I think if they run their
18 house, if it's my house I should be able to
19 decide whether people smoke in it or not.
20 Two, the reason why I stand is
21 because the city of Rochester has just recently
22 passed legislation that bans assault weapons and
23 that does a number of things that this house has
3595
1 been unwilling to do. I would like to do
2 everything I could to encourage the city of
3 Rochester to continue with that experimentation
4 in trying to restrict access to weapons that the
5 city believes are dangerous to the people who
6 live there.
7 And, finally, I think we're wit
8 nessing something in this chamber that's unheard
9 of in the American political landscape, at least
10 by my reckoning, and I've watched the issues
11 somewhat carefully.
12 I think this may be the only
13 elected body in the United States of America
14 which is talking about increasing the amount of
15 guns in our urban areas. I don't know of any
16 other body that's doing that. Certainly the
17 House and the Senate in Washington are
18 decreasing the amounts that are available, other
19 states that have banned assault weapons, other
20 states that have restricted weapons are
21 decreasing the amount of weapons available in
22 our urban areas.
23 And here we seem to be moving in
3596
1 the opposite direction where what we're doing,
2 we're increasing the availability of weapons.
3 This bill invites more guns to come into New
4 York City. It seems to me it's a fundamental
5 mistake; it's grossly inconsistent with what's
6 going on in this country, and I think the
7 unfortunate message is that GOP is now trans
8 lated into GUN. That's the message that you can
9 draw.
10 I think it's mistaken; I think
11 it's misguided; I think it does a disservice
12 it's a mistake to our cities that are trying to
13 decrease violence. Let's have this vote; this
14 thing ought to be defeated.
15 SENATOR GOLD: Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Gold.
18 SENATOR GOLD: Just very briefly
19 I'd like to get past the sparring and into
20 reality. Once we pass by the petty political
21 sparring and get to reality, the record ought to
22 indicate that in the comments that were made by
23 Senator Dollinger, those speak for the people of
3597
1 the city of New York because, Senator Dollinger,
2 there isn't a doubt that, if we polled the
3 people of the city of New York they would, in
4 overwhelming numbers, ask for the defeat of this
5 bill.
6 Now, there are members elected
7 here from the city of New York who, because of
8 party lines or whatever, will vote for this bill
9 and we happen to live in a society where in most
10 Senate Districts people don't vote on the basis
11 of one issue, and they may get away with it.
12 But getting away with a bad vote doesn't mean
13 you're speaking for the people in your district
14 or the people in the city of New York and,
15 Senator Dollinger, you can take it to the bank,
16 the people of the city of New York thank you for
17 supporting our mayor and for, more importantly,
18 supporting them on this issue.
19 ACTING PRESIDENT KUHL: Is there
20 any other Senator wishing to speak on this
21 bill? If not, the clerk will read the last
22 section.
23 THE SECRETARY: Section 2. This
3598
1 act -
2 SENATOR GOLD: Slow roll call.
3 THE SECRETARY: Section 2. This
4 bill shall take effect on the first day of
5 November next succeeding the date on which it
6 shall have become a law.
7 SENATOR GOLD: Slow roll call.
8 ACTING PRESIDENT KUHL: Call the
9 roll. Are there five Senators willing to stand
10 to request a slow roll call? There are. The
11 clerk will call the roll slowly. Please ring
12 the bells.
13 THE SECRETARY: Senator Babbush.
14 (There was no response.)
15 Senator Bruno.
16 (There was no response. )
17 THE SECRETARY: Senator Connor.
18 (There was no response. )
19 Senator Cook.
20 SENATOR COOK: Yes.
21 THE SECRETARY: Senator Daly.
22 SENATOR DALY: Yes.
23 THE SECRETARY: Senator
3599
1 DeFrancisco.
2 SENATOR DeFRANCISCO: Yes.
3 THE SECRETARY: Senator DiCarlo.
4 SENATOR DiCARLO: Yes.
5 THE SECRETARY: Senator
6 Dollinger.
7 SENATOR DOLLINGER: No.
8 THE SECRETARY: Senator Espada.
9 SENATOR ESPADA: No.
10 THE SECRETARY: Senator Farley
11 excused.
12 Senator Galiber. Senator
13 Galiber.
14 SENATOR GALIBER: No.
15 THE SECRETARY: Senator Gold.
16 SENATOR GOLD: No.
17 THE SECRETARY: Senator
18 Gonzalez.
19 (There was no response.)
20 THE SECRETARY: Senator Goodman.
21 (There was no response. )
22 Senator Hannon.
23 SENATOR HANNON: Yes.
3600
1 THE SECRETARY: Senator
2 Hoffmann.
3 (There was no response. )
4 Senator Holland.
5 SENATOR HOLLAND: Mr. President,
6 to explain my vote.
7 ACTING PRESIDENT KUHL: Senator
8 Holland to explain his vote.
9 SENATOR HOLLAND: Mr. President,
10 this is, in my estimation, just a question of
11 fairness. If you can be issued a license in the
12 city of New York, a legal license just for a
13 hand gun, not for an assault weapon, Senator
14 Dollinger, not for an assault weapon -- we're
15 not talking about that; we're talking about the
16 Second Amendment and the rights of the citizens
17 of this country to carry weapons. We're not
18 talking about assault weapons, we're talking
19 about revolvers, hand guns, legal hand guns,
20 that has been checked out by judges, by the FBI,
21 by the BCI, by the Mental Health Association,
22 people have been given courses in how to handle
23 a weapon and not to take it out, as Senator
3601
1 Montgomery said, to scare somebody away, only as
2 a last resort. That's all we're talking about.
3 If you want to do it the other
4 way, Senator Gold, why don't you make it illegal
5 for the other way so that people in the city of
6 New York can't carry their weapons in upstate
7 New York. I think that would be just as fair,
8 and I would be against that too.
9 So it's a Second Amendment
10 question. It's a question of fairness, and I
11 see -- and only makes sense to me.
12 ACTING PRESIDENT KUHL: Senator
13 Holland, how do you vote.
14 SENATOR HOLLAND: Yes.
15 ACTING PRESIDENT KUHL: Senator
16 Holland in the affirmative. The clerk will
17 continue calling the roll.
18 THE SECRETARY: Senator Johnson.
19 SENATOR JOHNSON: Mr. President,
20 to explain my vote.
21 ACTING PRESIDENT KUHL: Senator
22 Johnson to explain his vote.
23 SENATOR JOHNSON: The state of
3602
1 New York has very rigid requirements concerning
2 licensing for hand gun ownership and for hand
3 gun carrying. New York City perhaps may be
4 stricter in some respects than the rest of the
5 state.
6 We guarantee that in New York
7 City you're probably less likely to meet a
8 legitimate licensed hand gun owner than you are
9 in any other part of the state based upon
10 population. Needless to say, with so many
11 unarmed people running the streets of the city
12 of New York, crime is running rampant, that's no
13 secret to anybody in this chamber.
14 The fact that others who are
15 licensed in other parts of the state are just as
16 credible certainly as anybody with a New York
17 City license, they meet the same laws, the same
18 requirements for remaining free of criminal
19 background or mental defect. Those people
20 perhaps may be a little more enlightened than
21 some others and feel like they'd like to carry
22 their gun when they visit the city of New York
23 to protect their lives and their property -- a
3603
1 very intelligent thing to do, in my opinion.
2 There's no reason why a
3 legitimate permit shouldn't be valid anywhere in
4 this state. So, Mr. President, I support this
5 bill. I suggest other people support it as
6 well.
7 Thank you. I vote aye.
8 ACTING PRESIDENT KUHL: Senator
9 Johnson in the affirmative.
10 THE SECRETARY: Senator Jones.
11 SENATOR JONES: Yes.
12 THE SECRETARY: Senator Kruger.
13 SENATOR KRUGER: No.
14 THE SECRETARY: Senator Kuhl.
15 SENATOR KUHL: Aye.
16 THE SECRETARY: Senator Lack.
17 (There was no response. )
18 Senator Larkin.
19 SENATOR LARKIN: Aye.
20 THE SECRETARY: Senator LaValle.
21 SENATOR LAVALLE: Aye.
22 THE SECRETARY: Senator
23 Leichter.
3604
1 SENATOR LEICHTER: No.
2 THE SECRETARY: Senator Levy.
3 (There was no response. )
4 Senator Libous.
5 SENATOR LIBOUS: Aye.
6 THE SECRETARY: Senator Maltese.
7 SENATOR MALTESE: Aye.
8 THE SECRETARY: Senator Marchi.
9 SENATOR MARCHI: Aye.
10 THE SECRETARY: Senator Marino,
11 aye.
12 Senator Markowitz.
13 SENATOR MARKOWITZ: No.
14 THE SECRETARY: Senator Mendez.
15 SENATOR MENDEZ: No.
16 THE SECRETARY: Senator
17 Montgomery.
18 SENATOR MONTGOMERY: No.
19 THE SECRETARY: Senator Nanula.
20 SENATOR NANULA: Aye.
21 THE SECRETARY: Senator Nolan.
22 (There was no response. )
23 Senator Nozzolio.
3605
1 SENATOR NOZZOLIO: Aye.
2 THE SECRETARY: Senator
3 Ohrenstein.
4 Senator Onorato.
5 SENATOR ONORATO: No.
6 THE SECRETARY: Senator
7 Oppenheimer.
8 (There was no response. )
9 Senator Padavan.
10 SENATOR PADAVAN: Yes.
11 THE SECRETARY: Senator Pataki.
12 (There was no response. )
13 Senator Paterson.
14 SENATOR PATERSON: No.
15 THE SECRETARY: Senator Present.
16 SENATOR PRESENT: Aye.
17 THE SECRETARY: Senator Rath.
18 SENATOR RATH: Yes.
19 THE SECRETARY: Senator Saland.
20 SENATOR SALAND: Mr. President.
21 ACTING PRESIDENT KUHL: Senator
22 Saland to explain his vote.
23 SENATOR SALAND: Thank you, Mr.
3606
1 President.
2 Mr. President, this bill, it
3 would seem to me, merely reflects a reality of
4 probably some 57 counties in the state of New
5 York having a mechanism that's clearly lawful,
6 that clearly is intended to comply with the law,
7 one which screens countless numbers of
8 candidates, one which is very, very selective,
9 one which, by the way, certainly greatly exceeds
10 anything that was discussed at the national
11 level during the recent debates surrounding the
12 adoption of the Brady bill by -- by our federal
13 Congress.
14 These bills, basically as
15 discussed, we're talking about a five-day
16 waiting period. I think most of us here could
17 say very safely that in New York the kind of
18 careful scrutiny that occurs in each of the 57
19 counties outside of the city of New York results
20 in a process that probably takes somewhere in
21 the area of about six months. It's a process
22 which runs not only through local law
23 enforcement, local sheriffs, but one which also
3607
1 bears the imprimatur of a court, a court review
2 before an applicant has been found fit for a
3 permit. Those people then have the ability to
4 carry virtually throughout, oh, I would guess 85
5 to 90 percent of the geography of the state of
6 New York, failing only to be appropriate in
7 those some five counties comprising the five
8 boroughs of the city of New York.
9 I believe this is basically an
10 equity issue. This is an issue which I think
11 certainly recognizes the realities of the rights
12 of law-abiding citizens to be permitted to carry
13 or where they've been so approved in the county
14 of their residence. I see no reason why this
15 exception should be carved out. In fact, I
16 commend Senator Holland for bringing this bill
17 to us today, and I vote in the affirmative, Mr.
18 President.
19 ACTING PRESIDENT KUHL: Senator
20 Saland in the affirmative. Clerk will continue
21 the roll.
22 THE SECRETARY: Senator
23 Santiago.
3608
1 (There was no response. )
2 Senator Sears.
3 SENATOR SEARS: Aye.
4 THE SECRETARY: Senator Seward.
5 SENATOR SEWARD: Aye.
6 THE SECRETARY: Senator Skelos.
7 SENATOR SKELOS: Yes.
8 THE SECRETARY: Senator Smith.
9 SENATOR SMITH: No.
10 THE SECRETARY: Senator Solomon.
11 (There was no response. )
12 Senator Spano.
13 SENATOR SPANO: Aye.
14 THE SECRETARY: Senator
15 Stachowski.
16 SENATOR STACHOWSKI: Yes.
17 THE SECRETARY: Senator
18 Stafford. Senator Stafford.
19 SENATOR STAFFORD: Aye.
20 THE SECRETARY: Senator
21 Stavisky.
22 SENATOR STAVISKY: My name having
23 been called, I'd like to briefly explain my
3609
1 vote.
2 ACTING PRESIDENT KUHL: Senator
3 Stavisky to explain his vote.
4 SENATOR STAVISKY: How many times
5 does the National Rifle Association's computer
6 have to run? How many times during a session
7 does the NRA have to insist on an act of fealty
8 in order that members here who are fully capable
9 of being reelected with or without the NRA's
10 endorsement have to pledge obedience to the
11 NRA's regressive posture?
12 I've heard statements about
13 obedience to the law, and why should law-abiding
14 citizens in upstate New York not have the
15 opportunity to carry their firearms in New York
16 City because upstate New York obeys the law and
17 we should cast no aspersions? And yet there are
18 times when members here acknowledge that other
19 parts of the state do not necessarily comply
20 with the law in every instance.
21 How many times do I hear my
22 colleague ask for all of our votes for a local
23 bill to exempt from some provision, let us say
3610
1 of the Education Law, a school district that may
2 not have complied with the law? And yet the law
3 is the law. But is the law only the law when
4 you wish it to be so? And is it not the law
5 when you don't like it?
6 We do not want to have the
7 standard of Judge Billy Bob or whatever his name
8 is, in your jurisdiction whom we do not know
9 making decisions with regard to guns in New York
10 City. We have confidence that our police
11 commissioner and our mayor -- our mayor, ladies
12 and gentlemen -- I'm making no distinction, have
13 the ability to speak for the city in which some
14 of us live, the same way as your elected
15 officials have the power to speak for your
16 interests just as you do.
17 Please do not ask us to surrender
18 our rights with regard to the law as it applies
19 to New York City and then go back and tell us
20 you don't want us to obey the law when it comes
21 to your district that has done something to
22 follow up the procedure or to violate the law
23 when they knew it well in advance.
3611
1 I don't want a double standard.
2 I want home rule to apply equally across the
3 state and some of you who know better should not
4 be voting for this type of legislation again and
5 again and ask us in New York City to remain
6 silent when you want us to revise what we expect
7 for our constituents and our visitors.
8 I do not want to impose a
9 standard in your jurisdiction. Please don't do
10 it in the place where I live. I vote no.
11 ACTING PRESIDENT KUHL: Senator
12 Stavisky, how do you vote? Senator Stavisky in
13 the negative. The clerk will continue the
14 roll.
15 THE SECRETARY: Senator Trunzo.
16 SENATOR TRUNZO: Yes.
17 THE SECRETARY: Senator Tully.
18 SENATOR TULLY: Yes.
19 THE SECRETARY: Senator Velella.
20 SENATOR VELELLA: Yes.
21 THE SECRETARY: Senator Volker
22 excused.
23 Senator Waldon.
3612
1 (There was no response. )
2 Senator Wright.
3 (There was no response.)
4 ACTING PRESIDENT KUHL: The clerk
5 will call the absentees.
6 THE SECRETARY: Senator Babbush.
7 (There was no response. )
8 Senator Bruno.
9 SENATOR BRUNO: Mr. President.
10 ACTING PRESIDENT KUHL: Senator
11 Bruno to explain his vote.
12 SENATOR BRUNO: Senator, you talk
13 about a double standard. You talk about
14 imposing will on your constituency. I'd like to
15 ask the same indulgence of you and those people
16 that vote against this.
17 I have a pistol permit, legal,
18 like a lot of other citizens in New York State.
19 I resent being treated like a second class
20 citizen in my own state. You have a pistol
21 permit in New York City, you have a perfect
22 right in coming to Rensselaer County, Saratoga
23 County, into my district and carry a weapon.
3613
1 I don't have the same privilege
2 when I go into New York City. That is a double
3 standard. We pass laws in this chamber every
4 day that affect the entire constituency of this
5 state, and I, for one, Mr. President, resent
6 being treated like a second class citizen.
7 I get fingerprinted. I do all of
8 the things that the law says I have to do to get
9 a permit for carrying a pistol. I go into New
10 York City, and I am a criminal if I have that
11 pistol with me.
12 Now, do you call that representa
13 tive? You call that good government? I don't,
14 and I also resent the fact that any time anyone
15 wants to get on their feet, they talk about the
16 NRA and that we're (unintelligible) we're
17 lackey.
18 Well, let's talk about being a
19 citizen who feels that he or she has a
20 constitutional right to carry a weapon here in
21 New York State or in the United States, and that
22 is totally unrelated to the NRA. So that may be
23 self-serving in your constituency, but it's of
3614
1 no value here in this constituency.
2 So, Mr. President, in fairness to
3 all the citizens of this state, equal
4 opportunity for all the citizens, I vote yes.
5 ACTING PRESIDENT KUHL: Senator
6 Bruno in the affirmative. Clerk will continue
7 the roll call.
8 THE SECRETARY: Senator
9 Gonzalez.
10 (There was no response. )
11 Senator Goodman.
12 SENATOR GOODMAN: No.
13 THE SECRETARY: Senator
14 Hoffmann.
15 SENATOR HOFFMANN: To explain my
16 vote.
17 ACTING PRESIDENT KUHL: Senator
18 Hoffmann to explain her vote.
19 SENATOR HOFFMANN: In the ten
20 years that I have endured the debate on this
21 bill, I've heard many things said on this floor
22 that made me cringe, and today was another one
23 of those days.
3615
1 I would like to add my voice to
2 the other upstate representatives who are
3 talking about the issue of parity and fairness
4 and the constitutional guarantee that we have to
5 recognize rights enforced by the state of New
6 York that allow people to do things across the
7 state and to recognize that one jurisdiction
8 does not have the right to deny people the
9 opportunity to use a right which has been
10 granted in another jurisdiction of the state.
11 It is a relatively simple concept.
12 But what we have seen today is
13 another example of somehow that issue of
14 fairness is instead cast aside and we have
15 territorial warfare and territorial prejudices
16 exposed, and in this case a rather interesting
17 class issue. I have never heard any castigation
18 before of this chamber following the will of the
19 NRA, and I resent the implication that any of us
20 are taking orders from an organization like the
21 National Rifle Association or any other
22 organization.
23 Those charges were once made
3616
1 about people who ran for office in this country
2 who belong to minority religious groups and
3 people who make those charges today are regarded
4 as uneducated boobs, and I am appalled that any
5 member of this chamber would accuse us, those of
6 us who vote our conscience on this issue of
7 taking orders from an organization and the
8 reference to "Judge Billy Bob or whatever their
9 names are" in the upstate area is another af
10 front to people of this state. That's a direct
11 reference to cartoon characterizations of people
12 who live in the back woods. It's a Beverly
13 Hillbillies kind of slap on those of us in
14 upstate New York.
15 The Republican judges in Onondaga
16 County who issue pistol permits would be
17 offended to hear their characterization of
18 "Judge Billy Bob or whatever their names are"
19 in these chambers today. They follow the law.
20 They use waiting periods that are far in excess
21 of what the national standard has been. They
22 screen people sometimes to excess, and they are
23 fair and they recognize the Constitution and we
3617
1 should recognize the Constitution for people all
2 over the state of New York.
3 I hope the next time this bill
4 comes up that the tenor of debate will be of a
5 higher level and it will not be one in which
6 everybody from upstate New York is cast in one
7 lot and lumped with ridicule.
8 I vote aye.
9 ACTING PRESIDENT KUHL: Senator
10 Hoffmann in the affirmative. The clerk will
11 continue the roll call.
12 THE SECRETARY: Senator Lack.
13 SENATOR LACK: Aye.
14 THE SECRETARY: Senator Levy.
15 SENATOR LEVY: Aye.
16 THE SECRETARY: Senator
17 Ohrenstein.
18 (There was no response.)
19 Senator Oppenheimer.
20 (There was no response. )
21 Senator Pataki.
22 (There was no response.)
23 Senator Santiago.
3618
1 (There was no response. )
2 Senator Solomon.
3 SENATOR SOLOMON: No.
4 THE SECRETARY: Senator Wright.
5 (There was no response.)
6 ACTING PRESIDENT KUHL: The clerk
7 will announce the results.
8 THE SECRETARY: Ayes 34, nays
9 16.
10 ACTING PRESIDENT KUHL: The bill
11 is passed.
12 Senator Present.
13 SENATOR PRESENT: Recognize
14 Senator Stafford.
15 SENATOR STAFFORD: I would like
16 to call an immediate meeting of the Committee on
17 Finance in Room 332, please.
18 ACTING PRESIDENT KUHL: Senator
19 Stafford calls an immediate meeting of the
20 Committee on Finance in Room 332, immediate
21 meeting of the Senate Finance Committee.
22 Senator Present, do you desire to
23 continue.
3619
1 SENATOR PRESENT: Regular order.
2 ACTING PRESIDENT KUHL: Clerk
3 will continue to call the controversial
4 calendar.
5 THE SECRETARY: Calendar Number
6 654, by Senator Hannon, Senate Bill Number 277A,
7 an act to amend the Administrative Code of the
8 City of New York and the Emergency Tenant
9 Protection Act.
10 SENATOR GALIBER: Explanation.
11 ACTING PRESIDENT KUHL: Senator
12 Hannon, Senator Galiber has asked for an
13 explanation.
14 Senator Hannon for an
15 explanation.
16 SENATOR HANNON: This bill
17 provides that the failure to file a city -- New
18 York City income tax return by a tenant in a
19 rent-regulated apartment would be prima facie
20 evidence that the tenant doesn't have a primary
21 residency in New York City, which is a
22 requirement -
23 ACTING PRESIDENT KUHL: Senator
3620
1 Hannon, excuse me just a minute.
2 Ladies and gentlemen, there is a
3 great deal of noise in the chamber. Very
4 difficult for the chair to understand what
5 Senator Hannon is saying even with the use of
6 the microphone. Could we please quiet it down.
7 Thank you, Senator Hannon.
8 SENATOR HANNON: In conclusion of
9 the explanation, this legislation doesn't apply
10 to individuals who request an extension or
11 provide any other reasonable excuse for failure
12 to file their taxes in a timely fashion.
13 ACTING PRESIDENT KUHL: Clerk
14 will read the last section.
15 SENATOR GOLD: Mr. President.
16 ACTING PRESIDENT KUHL: Take that
17 back. Senator Gold.
18 SENATOR GOLD: As has been
19 pointed out in the past on this bill which keeps
20 coming back, it's opposed by the New York State
21 Tenant and Neighborhood Coalition; and Senator
22 Connor and Espada, myself, Montgomery,
23 Ohrenstein and Waldon have voted against it in
3621
1 the past, I guess on the simple theory that you
2 are mixing apples and oranges; and what can I
3 tell you?
4 Last section.
5 ACTING PRESIDENT KUHL: Clerk
6 will read the last section.
7 THE SECRETARY: Section 5. This
8 act shall take effect immediately.
9 ACTING PRESIDENT KUHL: Call the
10 roll.
11 (The Secretary called the roll.)
12 ACTING PRESIDENT KUHL: Clerk
13 will announce the results.
14 THE SECRETARY: Those recorded in
15 the negative on -- those recorded in the
16 negative on Calendar Number 654 are Senators
17 Espada, Gold, Goodman, Leichter, Mendez,
18 Montgomery, Onorato, Smith, Stavisky, also
19 Senator Markowitz, also Senator Kruger. Ayes
20 41. Nays 11.
21 ACTING PRESIDENT KUHL: The bill
22 is passed.
23 THE SECRETARY: Calendar Number
3622
1 699, by Senator Volker.
2 SENATOR GOLD: Hold that
3 temporarily for Senator Galiber.
4 ACTING PRESIDENT KUHL: Lay the
5 bill aside temporarily.
6 THE SECRETARY: Calendar Number
7 727, by Senator Hannon, Senate Bill Number 6627,
8 an act to amend the Administrative Code of the
9 City of New York.
10 ACTING PRESIDENT KUHL: Senator
11 Hannon, Senator Stavisky would like an
12 explanation.
13 SENATOR PRESENT: Lay it aside
14 temporarily.
15 SENATOR GOLD: Thank you.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside temporarily.
18 THE SECRETARY: Calendar Number
19 773, by Senator Saland, Senate Bill Number 4331
20 an act to amend the Family Court Act, in
21 relation to authorizing fees for probation
22 services in Family Court.
23 SENATOR GOLD: Explanation.
3623
1 ACTING PRESIDENT KUHL:
2 Explanation has been asked for.
3 SENATOR PRESENT: Lay it aside
4 temporarily.
5 ACTING PRESIDENT KUHL: Lay the
6 bill aside temporarily.
7 THE SECRETARY: Calendar Number
8 879, by Senator Present, Senate Bill Number
9 2108, an act to amend the Insurance Law, in
10 relation to coverage for mammography screening.
11 SENATOR SOLOMON: Mr. President.
12 ACTING PRESIDENT KUHL: Senator
13 Solomon.
14 SENATOR SOLOMON: Will the
15 sponsor yield, please.
16 ACTING PRESIDENT KUHL: Senator
17 Present, do you yield for a question?
18 SENATOR PRESENT: Yes.
19 ACTING PRESIDENT KUHL: Senator
20 does. Senator Solomon.
21 SENATOR SOLOMON: Senator
22 Present, I'm sure you are aware that ERISA, the
23 Employee Retirement Income Security Act,
3624
1 prohibits states from having mandates on
2 insurance policies that cross state lines so
3 there can be standardization of policies. How
4 do you reconcile this bill with ERISA?
5 SENATOR PRESENT: I don't think
6 this bill conflicts with the federal law.
7 SENATOR SOLOMON: Can you cite me
8 any cases where you can prove that, any legal
9 opinion? Because this directly contradicts
10 federal law under ERISA.
11 SENATOR PRESENT: It only covers
12 laws that are governed by New York State law.
13 SENATOR SOLOMON: Senator, I read
14 this legislation -- Senator, correct me if I'm
15 wrong. Does not this legislation mandate -
16 Mr. President, if the Senator
17 will yield.
18 Doesn't this legislation require
19 any policies issued -- any policy to cover
20 mammography exams even if those policies are
21 issued out of state.
22 SENATOR PRESENT: I think that
23 this bill provides only the mandates that are
3625
1 covered by other laws, covered mandates. I
2 think you interpret it wrong. We differ. I
3 think you raised this issue in the past, when
4 this bill has passed in the Senate.
5 SENATOR SOLOMON: Well, I just
6 read the bill, and the bill in and of itself
7 basically says -
8 ACTING PRESIDENT KUHL: Senator
9 Solomon, are you asking Senator Present -
10 SENATOR SOLOMON: On the bill,
11 Mr. President.
12 ACTING PRESIDENT KUHL: On the
13 bill. Senator Solomon on the bill.
14 SENATOR SOLOMON: "Any policy
15 which provides" -- let's see. The part that you
16 are taking out is, "except that this provision
17 shall not apply to a policy which covers persons
18 employed in more than one state or the benefit
19 structure which is the subject of a collective
20 bargaining affecting persons employed by one
21 state." That's what ERISA was specifically
22 designed to do and has been interpreted by the
23 courts.
3626
1 The Courts have said where you
2 have insurance policies that go across state
3 lines -- for instance, General Electric can
4 issue the same policy or have the same insurance
5 coverage for all its employees. The state can
6 not mandate certain coverages.
7 And in addition to the impact of
8 this bill, what will happen is we will just
9 basically have insurers move out of the state or
10 the insurance policies will not be bought from
11 New York State insurers. This bill directly
12 contradicts ERISA. There is no court case that
13 I know of, after doing a lot of research on
14 ERISA, that supports the basis of this
15 legislation, and the only thing we're doing is
16 passing a law which is going to cause the loss
17 of employment in this state and the loss of
18 revenue in this state because there are premium
19 tax dollars that are generated when insurance
20 policies are sold, and we're going to lose those
21 premium tax dollars.
22 ACTING PRESIDENT KUHL: Any other
23 Senator wishing to speak on the bill?
3627
1 (There was no response.)
2 Clerk will read the last section.
3 THE SECRETARY: Section 3. This
4 act shall take effect on the first day of
5 January next succeeding the date on which it
6 shall have become a law.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll.)
10 ACTING PRESIDENT KUHL: Announce
11 the results.
12 THE SECRETARY: Ayes 52. Nays
13 2. Senators Kuhl and Solomon recorded in the
14 negative.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 SENATOR CONNOR: Mr. President.
18 ACTING PRESIDENT KUHL: Senator
19 Connor.
20 SENATOR CONNOR: Thank you, Mr.
21 President. May I have unanimous consent to be
22 recorded in the negative on Calendar Number 654.
23 ACTING PRESIDENT KUHL: Without
3628
1 objection, Senator Connor is recorded in the
2 negative on Calendar Number 654.
3 Senator Present.
4 SENATOR PRESENT: Go back to
5 Calendar 773, please.
6 ACTING PRESIDENT KUHL: The clerk
7 will read Calendar Number 773.
8 THE SECRETARY: Calendar Number
9 773, by Senator Saland, Senate Bill Number 4331,
10 an act to amend the Family Court Act, in
11 relation to authorizing fees for probation
12 services in Family Court.
13 SENATOR GOLD: Explanation.
14 ACTING PRESIDENT KUHL: Senator
15 Gold has asked for an explanation. Senator
16 Saland for an explanation.
17 SENATOR SALAND: Thank you, Mr.
18 President.
19 Mr. President. This bill would
20 amend the Family Court Act to permit a court to
21 order a home investigation by a probation
22 department -- a county probation department,
23 which it already has the authority to do, but
3629
1 add to that authorization the ability for the
2 court to charge a -- permit the probation
3 department to charge a fee from $50 to $500 or
4 waive that fee in its entirety where on a
5 showing of means the court determines that it
6 would not be appropriate. Currently, that
7 authority exists for home studies in cases
8 involving custody proceedings.
9 SENATOR GOLD: Mr. President.
10 ACTING PRESIDENT KUHL: Senator
11 Gold.
12 SENATOR GOLD: I just wanted -
13 for those members who have voted in the negative
14 before, Senator Galiber, Montgomery and Onorato,
15 Paterson, Santiago, Solomon, Stavisky, Waldon,
16 Kuhl, Pataki, and Skelos.
17 ACTING PRESIDENT KUHL: Clerk
18 will read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect on the first day of
21 October next succeeding the date on which it
22 shall have become a law.
23 ACTING PRESIDENT KUHL: Call the
3630
1 roll.
2 (The Secretary called the roll.)
3 ACTING PRESIDENT KUHL: Senator
4 Padavan, to explain your vote?
5 SENATOR PADAVAN: Voting in the
6 negative.
7 THE SECRETARY: Those recorded in
8 the negative on Calendar Number 773 are Senators
9 Connor, DiCarlo, Gold, Kruger, Kuhl, Leichter,
10 Mendez, Montgomery, Nanula, Onorato, Padavan,
11 Santiago, Skelos, Solomon and Stavisky.
12 Ayes 39. Nays 15.
13 ACTING PRESIDENT KUHL: The bill
14 is passed.
15 Senator Present.
16 SENATOR PRESENT: Would you
17 recognize Senator Goodman, please?
18 ACTING PRESIDENT KUHL: Senator
19 Goodman.
20 SENATOR GOODMAN: Mr. President.
21 It's my privilege and pleasure to bring to the
22 attention of the chamber the fact that we have
23 here a very distinguished senior member of the
3631
1 United States Senate in our presence. I'm
2 honored to have you meet and greet Senator Phil
3 Gramm of Texas, who, as you know, is one of the
4 more scholarly members of the United States
5 Senate having himself been a professor, an
6 expert on many issues, who is in Albany today
7 for the purpose of discussing matters relating
8 to health.
9 Senator Gramm, we're very pleased
10 indeed to see you, and we warmly welcome you.
11 (Applause.)
12 ACTING PRESIDENT KUHL: Senator
13 Gramm, on behalf of the Senate Majority Leader,
14 Senator Marino, we certainly welcome you here.
15 We're pleased that you found time to leave the
16 busy city of Washington to come up and join us
17 in our proceedings. Welcome.
18 I notice that Senator Goodman
19 didn't know which side of the aisle to take you,
20 but certainly we appreciate your being here.
21 Senator Nanula.
22 SENATOR NANULA: Mr. President.
23 I'd like to request unanimous consent to be
3632
1 recorded in the negative on Calendar Number 654.
2 ACTING PRESIDENT KUHL: Without
3 objection, Senator Nanula will be recorded in
4 the negative on Calendar Number 654.
5 Senator Wright.
6 SENATOR WRIGHT: Mr. President.
7 I was away on Senate business when the vote on
8 Calendar 632, Senate Print Number S.207A, was
9 taken. I would like the record to reflect that
10 had I been in the chamber when the vote was
11 taken, I would have voted in the affirmative on
12 Calendar 632.
13 ACTING PRESIDENT KUHL: The
14 record will reflect that had Senator Wright been
15 here, he would have voted in the affirmative on
16 Calendar Number 632.
17 Senator Santiago.
18 SENATOR SANTIAGO: I request
19 unanimous consent to be recorded in the negative
20 on Calendar 632 and 654.
21 ACTING PRESIDENT KUHL: Senator
22 Santiago, without objection, you will be
23 recorded in the negative on Calendar Number
3633
1 654. If you would like, the record will reflect
2 that had you been here when the vote was taken
3 on Calendar Number 632, you would have voted in
4 the negative.
5 SENATOR GOLD: Thank you, Mr.
6 President.
7 ACTING PRESIDENT KUHL: Further
8 housekeeping?
9 (There was no response.)
10 Continue the roll.
11 THE SECRETARY: Calendar Number
12 894, by Senator Rath, Senate Bill Number 7054A,
13 an act to amend the State Administrative
14 Procedure Act.
15 SENATOR GOLD: Yes.
16 ACTING PRESIDENT KUHL: Senator
17 Gold.
18 SENATOR GOLD: Senator, could we
19 impose to put this over for one day for Senator
20 Oppenheimer, please?
21 SENATOR RATH: I couldn't hear
22 you, Senator.
23 SENATOR GOLD: Pardon me?
3634
1 SENATOR RATH: I can't hear you.
2 SENATOR GOLD: That's the idea.
3 Senator, could we put this over for one day for
4 Senator Oppenheimer, please?
5 SENATOR RATH: Sure.
6 SENATOR GOLD: Thank you very
7 much.
8 ACTING PRESIDENT KUHL: The bill
9 is laid aside for the day.
10 Senator Present.
11 SENATOR PRESENT: Mr. President.
12 Can we stand at ease for a few moments.
13 ACTING PRESIDENT KUHL: Senator,
14 we have a motion on the floor. Can we recognize
15 Senator Holland?
16 SENATOR PRESENT: Go ahead.
17 ACTING PRESIDENT KUHL: Senator
18 Holland.
19 SENATOR HOLLAND: Mr. President.
20 I move the following bill be discharged from its
21 respective committee and be recommitted with
22 instructions to strike the enacting clause:
23 8355.
3635
1 ACTING PRESIDENT KUHL: Without
2 objection, so ordered.
3 Senator Maltese.
4 SENATOR MALTESE: Mr. President.
5 I ask that Senate Bill, my bill 5059, Calendar
6 Number 84, be starred.
7 ACTING PRESIDENT KUHL: Place a
8 sponsor star -- Senator, the calendar number,
9 again, was -
10 SENATOR MALTESE: 84.
11 ACTING PRESIDENT KUHL: Calendar
12 Number 84 will have a sponsor star placed on it.
13 SENATOR PRESENT: At ease.
14 ACTING PRESIDENT KUHL: Senate
15 will stand at ease for just a few moments.
16 (Whereupon, at 5:07 p.m., the
17 Senate stood at ease.)
18 (Whereupon, at 5:20 p.m., Senate
19 reconvened.).
20 ACTING PRESIDENT KUHL: Senate
21 will come to order.
22 Senator Present.
23 SENATOR PRESENT: Can we return
3636
1 to the reports of the standing committee?
2 ACTING PRESIDENT KUHL: That we
3 can, Senator.
4 We will return to reports of
5 standing committees. Clerk will read.
6 THE SECRETARY: Senator Stafford,
7 from the Committee on Finance, reports the
8 following bills directly for third reading:
9 Senate Bill Number 8474, by the
10 Committee on Rules, an act to provide for
11 payments to municipalities.
12 Senate Bill Number 8475, by the
13 Committee on Rules, an act to amend Chapter 84
14 of the laws of 1994.
15 Senate Bill 8476, by the
16 Committee on Rules, an act to provide for
17 payments to vendors.
18 Senate Bill Number 8477, by the
19 Committee on Rules, an act making an
20 appropriation for the support of government.
21 Senate Bill Number 8478, by the
22 Committee on Rules, an act making an
23 appropriation for the support of government.
3637
1 All bills reported directly for
2 third reading.
3 ACTING PRESIDENT KUHL: Without
4 objection, all bills are reported directly for
5 Third Reading.
6 Senator Present.
7 SENATOR PRESENT: Mr. President.
8 Can I have those bills read at this time,
9 starting with Calendar 1072.
10 ACTING PRESIDENT KUHL: Clerk
11 will read, starting with Calendar Number 1072.
12 THE SECRETARY: Calendar Number
13 1072, by the Senate Committee on Rules, Senate
14 Bill Number 8474, an act to provide for payments
15 to municipalities and to providers of medical
16 services.
17 ACTING PRESIDENT KUHL: Senator
18 Present.
19 SENATOR PRESENT: Mr. President.
20 Is there a message at the desk?
21 ACTING PRESIDENT KUHL: There is,
22 Senator Present.
23 SENATOR PRESENT: I move that we
3638
1 accept the messages, as I think there are two.
2 ACTING PRESIDENT KUHL: On the
3 motion, all those in favor signify by saying
4 aye.
5 (Response of "Aye.")
6 Opposed nay.
7 (There was no response.)
8 The motion is approved.
9 Clerk will read the last section.
10 THE SECRETARY: Section 2. This
11 act shall take effect immediately.
12 ACTING PRESIDENT KUHL: Call the
13 roll.
14 (The Secretary called the roll.)
15 THE SECRETARY: Ayes 54.
16 ACTING PRESIDENT KUHL: The bill
17 is passed.
18 THE SECRETARY: Oh, excuse me.
19 Ayes 52. Nays 2. Senators Holland and Maltese
20 recorded in the negative on Calendar 1072.
21 Also, Senator Sears in the negative on Calendar
22 1072.
23 ACTING PRESIDENT KUHL: The bill
3639
1 is passed.
2 Senator Present.
3 SENATOR PRESENT: Calendar 1073,
4 please.
5 ACTING PRESIDENT KUHL: Clerk
6 will read Calendar Number 1073.
7 THE SECRETARY: Calendar Number
8 1073, by the Senate Committee on Rules, Senate
9 Bill Number 8475, an act to amend Chapter 84 of
10 the Laws of 1994, an appropriation for debt
11 services obligations.
12 ACTING PRESIDENT KUHL: Clerk
13 will read the last section.
14 SENATOR PRESENT: Mr. President.
15 Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Present.
18 SENATOR PRESENT: Are there
19 messages of necessity and message of
20 appropriation at the desk?
21 ACTING PRESIDENT KUHL: There
22 are, Senator Present.
23 SENATOR PRESENT: I move we
3640
1 accept the messages.
2 ACTING PRESIDENT KUHL: All those
3 in favor, signify by saying aye.
4 (Response of "Aye.")
5 Opposed, nay.
6 (There was no response.)
7 The motion is approved.
8 Clerk will read the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll.)
14 THE SECRETARY: Ayes 54.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 Clerk will read Calendar Number
18 1074.
19 THE SECRETARY: Calendar Number
20 1074, by the Senate Committee on Rules, Senate
21 Bill Number 8476, an act to provide for payments
22 to vendors under the Women, Infants and
23 Children's program.
3641
1 ACTING PRESIDENT KUHL: Senator
2 Present.
3 SENATOR PRESENT: Mr. President.
4 Is there a message of necessity and a message of
5 appropriations at the desk.
6 ACTING PRESIDENT KUHL: There is,
7 Senator Present.
8 SENATOR PRESENT: I move that we
9 accept the messages.
10 ACTING PRESIDENT KUHL: All those
11 in favor, signify by saying aye.
12 (Response of "Aye.")
13 Opposed, nay.
14 (There was no response.)
15 The messages are accepted.
16 Clerk will read the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 54.
23 ACTING PRESIDENT KUHL: The bill
3642
1 is passed.
2 Clerk will call Calendar Number
3 1075.
4 THE SECRETARY: Calendar Number
5 1075, by the Senate Committee on Rules, Senate
6 Bill Number 8477, an act making an appropriation
7 for the support of government.
8 ACTING PRESIDENT KUHL: Senator
9 Present.
10 SENATOR PRESENT: Mr. President.
11 Is there a message of necessity and a message of
12 appropriation at the desk on this bill?
13 ACTING PRESIDENT KUHL: There is,
14 Senator Present.
15 SENATOR PRESENT: Mr. President.
16 I move we accept the messages.
17 ACTING PRESIDENT KUHL: All those
18 in favor, signify by saying aye.
19 (Response of "Aye.")
20 Opposed, nay.
21 (There was no response.)
22 The messages are accepted.
23 Clerk will read the last section.
3643
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 54.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 Clerk will read Calendar Number
10 1076.
11 THE SECRETARY: Calendar Number
12 1076, by the Senate Committee on Rules, Senate
13 Bill Number 8478, an act making an appropriation
14 for the support of government.
15 ACTING PRESIDENT KUHL: Senator
16 Present.
17 SENATOR PRESENT: Mr. President.
18 Is a message of necessity and a message of
19 appropriation at the desk on this bill?
20 ACTING PRESIDENT KUHL: There is,
21 Senator Present.
22 SENATOR PRESENT: Mr. President.
23 I move that we accept the messages.
3644
1 ACTING PRESIDENT KUHL: All those
2 in favor, signify by saying aye.
3 (Response of "Aye.")
4 Those opposed, nay.
5 (Response of "Nay.")
6 Senator Dollinger is recorded in
7 the negative. The messages are accepted.
8 The clerk will read the last
9 section.
10 THE SECRETARY: Section 2. This
11 act shall take effect immediately.
12 ACTING PRESIDENT KUHL: Call the
13 roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT KUHL: Announce
16 the results.
17 THE SECRETARY: Those recorded in
18 the negative on Calendar Number 1076 are
19 Senators Dollinger, Jones and Nanula. Ayes 52.
20 Nays 3.
21 ACTING PRESIDENT KUHL: The bill
22 is passed.
23 Senator Present.
3645
1 SENATOR PRESENT: Mr. President.
2 Can we go back to Calendar 699?
3 ACTING PRESIDENT KUHL: We will
4 return to Calendar Number 699. Ask the clerk to
5 read.
6 SENATOR GALIBER: Explanation.
7 THE SECRETARY: Calendar Number
8 699, by Senator Volker, Senate Bill Number 7574,
9 an act to amend the Criminal Procedure Law, in
10 relation to corrective remedies.
11 SENATOR GALIBER: Explanation,
12 please.
13 ACTING PRESIDENT KUHL: An
14 explanation has been asked for by Senator
15 Galiber.
16 Senator Maltese.
17 SENATOR MALTESE: Mr. President.
18 This statute seeks to amend the Criminal
19 Procedure Law with regard to the people's
20 failure to serve on the defendant copies of
21 witnesses' statements.
22 Basically, it adds a new Section
23 240.46 to the Criminal Procedure Law to provide
3646
1 that a reversal or modification of a judgment
2 for failure to turn over copies of a witness's
3 statements may not occur unless the defendant
4 demonstrates that his rights were affected.
5 This is a statutory answer to
6 People versus Ranghelle, which was decided on by
7 our Court of Appeals in 1986, and what People
8 versus Ranghelle did to the discovery rule, the
9 Rosario rule, is extended it very unreasonably
10 and to an extent that is not followed in any
11 other jurisdiction in the United States. And
12 what they said is, that even if a witness's
13 prior statements do not contradict his
14 testimony, even if those statements were not
15 produced in bad faith, even if the substantial
16 rights of the defendant are not affected in any
17 shape, manner or form, or even if those prior
18 statements absolutely buttress and substantiate
19 and follow the witness's subsequent statements,
20 that the case must be reversed and a new trial
21 ordered.
22 So this is a corrective piece of
23 legislation that, as a matter of fact, was
3647
1 requested by the District Attorneys' Association
2 of the State of New York, has been supported by
3 every district attorneys' -- every county
4 district attorney that has communicated with us;
5 and, as a matter of fact, in a subsequent case
6 People versus Dana Jones, Justice Joseph
7 Bellacosa indicated that the decision in People
8 versus Ranghelle was "a prosecutor's nightmare
9 and a perpetrator's delight." So this
10 legislation would remedy that prosecutor's
11 nightmare and give us legislation in New York
12 that would not unduly tie the hands of
13 prosecutors and make it mandatory on lower
14 courts to demand -- to reverse prior judgments
15 and demand new trials.
16 ACTING PRESIDENT KUHL: Senator
17 Galiber.
18 SENATOR GALIBER: Yes, thank you,
19 Mr. President.
20 Senator, I don't really have any
21 questions because I can count and I know where
22 this bill is going, but I will just make some
23 observations.
3648
1 You have worked as a district
2 attorney on occasion. You certainly have gone
3 through our procedure as far as a formal
4 education is concerned. You are someone who
5 believes in America. You are someone who
6 believes in the American Flag, and I guess, more
7 importantly, you believe in people, and I'm not
8 saying that with tongue in cheek. We may differ
9 on how we go about the business, but more than
10 often we come to some of the same conclusions.
11 This piece of legislation, as a
12 fair and as a reasonable person and someone who
13 believes in the Constitution of the United
14 States -- and, again, I know all these things
15 and this debate, every now and then we put our
16 tongue in our cheek.
17 And my tongue is not in my cheek
18 on this piece of legislation. It is all about
19 fairness, Senator, and you knew this when you
20 were a prosecutor; and when we seek changes, we
21 seek changes mainly because, somewhere, someone
22 has abused something. This is a situation where
23 there has been a domino effect.
3649
1 Those of us who believe in law
2 and order and some believe in law and order and
3 justice at the same time -- and sometimes there
4 is more than just a fragile distinction; there
5 is a big difference between the two -- believe
6 that the Constitution of the United States was
7 for people, at least most of the people, but it
8 was about fairness and rights. And if we watch
9 very carefully and we follow the various
10 amendments, we have seen this great country of
11 ours progress.
12 We have a situation here where
13 you are now prepared to suggest that we shift
14 the burden from the people, where it's always
15 been, to the defendant. The defendant stands
16 accused, indicted, he is prepared or she's
17 prepared for trial. And we have prosecutors who
18 -- we put them in an arrogant position,
19 especially the new fellows.
20 Not the old timers when you were
21 there. And, again, I'm not massaging you. When
22 they had a case, they went forward with it. If
23 they didn't have a case, they moved to dismiss
3650
1 the case, wouldn't even present it to the grand
2 jury. None of this nonsense that the D.A.'s
3 Association, a number of young folks, some of
4 them in my county, who believe they are going to
5 change the world. The world certainly needs
6 alterations, but not changes.
7 You have here a Rosario bill
8 which we passed some time ago and we have been
9 slowly amending it when it comes to the point
10 where we figure that we haven't got an even
11 playing field; and that's all we're seeking for
12 here or any place in theory -- sometimes in
13 actuality -- to say, "Is it fair?", the
14 presumption of innocence. Those are not just
15 casual words. The defendant appears before the
16 Court. He or she is presumed innocent until
17 proven otherwise by a jury of peers or a judge
18 if it's a nonjury trial.
19 What you would suggest here and
20 perhaps, yea, even encourage, is a situation
21 where if the defendant who has the burden that
22 you're trying to shift over, with little
23 resources in some instances, Legal Aid taking
3651
1 nothing away from or adding onto, Legal Services
2 certainly, even in the case of private
3 attorneys, where they do not have the ways and
4 means, if you will, to go out and properly
5 investigate a case, to marshal, if you will, all
6 the evidence, as the district attorney has tons
7 and tons of investigators, and then that
8 district attorney's office decides what they
9 will use or not use.
10 I'm saying that if you make that
11 decision that we can't change the Constitution;
12 we can't amend the Constitution because of the
13 abuses; and as a result of the abuses, there are
14 procedures which says or suggests, if you don't
15 give up this information on demand, per se, as
16 such, it's gone. It's an automatic reversal.
17 Does that do harm to anyone? Is
18 that unreasonable? Is it not American? Is it
19 not part of the forefathers' Constitution that
20 they put into existence? It's American as I
21 use the expression from time to time.
22 Why now should we change it
23 merely because we have the votes? Why should
3652
1 we tinker with something which is so very
2 important, because we have the votes? Why
3 should we bulldoze and make that kind of even
4 playing field disruptive and making it uneven
5 again to shift this responsibility back to the
6 defendant?
7 Senator, this bill is just not
8 fair, and I know that things and conditions are
9 so bad in our society and some of our areas,
10 whether it's talking about bringing guns into
11 our community, or whatever the case may be, the
12 conditions are so bad that even those persons
13 who are saying we have gone too far with
14 mandatory sentences, we have gone too far with
15 all the other "Get Tough on Crime," which I
16 agree we don't agree about the procedure, but
17 certainly things are horrible in our
18 communities. When you come Upstate, they are
19 still horrible, but they are just better. They
20 smooth out a little bit, but they are horrible
21 in our district, and you know that.
22 This is not the answer. This is
23 one of those occasions when we take a position,
3653
1 "Whether it's death penalty or no?", and those
2 who are strong believers of the death penalty,
3 and I respect those judgments -- you know that
4 as well as I do, for years. "Well, you know, if
5 one innocent person happens to be electrocuted,
6 sobeit; that's the way it goes."
7 In this piece of legislation,
8 we're saying until we find another system -- and
9 the American system to me is a good system with
10 a number of cracks in the armor but the best
11 system that I know of, and I have some personal
12 problems with this great nation of ours, but
13 we've seen progress. So, those of us who are
14 concerned, as those of you on this side of the
15 aisle and on this side of the aisle are
16 concerned how we will slowly but surely whittle
17 away at certain basic rights that people have.
18 We took the 14th Amendment and
19 some number of other Amendments and we keep just
20 attempting to destroy them. It's like declaring
21 war, and that's what this "Get Tough on
22 Criminals" and get tough and hard on things that
23 are happening in our community. It's a cause,
3654
1 it's a phase, it's another kind of war; and as a
2 result of it, we hide behind the notion of a
3 war, like we declared war on poverty. I can't
4 imagine doing that, but we did it, and we hid
5 behind it and a lot of abuses took place, but it
6 gave us the right to do some other things.
7 We have gone through a sensitive
8 area and that I'm concerned with, and that's the
9 war on drugs. Once we throw that out, it's like
10 a Madison Avenue public relations firm
11 "declaring war."
12 This piece of legislation is akin
13 to that because, when we declare war, then we
14 justify all those things which are guaranteed by
15 our Constitution, we throw them aside. We start
16 kicking in doors without search warrants. We
17 beat up people with due cause. We do all these
18 horrible things, and we say, "But this is a
19 war." This is a war so, therefore, we have
20 justified them.
21 This reminds me, Senator, this
22 piece of legislation -- and I said to one of
23 counsels here, I said, "I wish Dale Volker was
3655
1 here," not for the substance of the matter,
2 because certainly you argue the point as well as
3 he would, but just we miss him so much, and I
4 wish he was here. I'm sure he will be soon.
5 But, Senator, this is my
6 observations. I don't have enough votes here.
7 But I'm saying we've got to put a screeching
8 halt eventually, or we're going to have another
9 form of government. We can't go on with this
10 craziness in trying to shift burdens because of
11 the horrible conditions that exist in our
12 communities throughout the entire state with
13 varying degrees. And that's what you are
14 suggesting here. You are suggesting that this
15 burden be shifted. You want to tie the hands of
16 prosecutors, as you put it. Nice great terms.
17 No, we don't want to tie the
18 hands of prosecutors. We want to bring back
19 some of those old-time prosecutors who said, "If
20 you are wrong, we're going to indict you, and
21 we're going to convict you."
22 And those old-time judges -- we
23 didn't have to fetter judges like we're doing
3656
1 today. We had a horrible crime, this fellow is
2 in jail right now, mostly males who are serving
3 some long, long, long terms back to those old
4 judges, that we no longer have any confidence
5 in; who were prosecuted by district attorneys
6 who we no longer have confidence in their
7 philosophy; and you came up during that period
8 of time. Those were good solid days where
9 America meant something, our system meant
10 something, and it worked pretty good.
11 We want to get merit judges
12 because the old judges that we elected are no
13 good. I don't know, they served me pretty well
14 and you also. We're trying to go change a
15 system that doesn't need changing.
16 And, Senator, this piece of
17 legislation gives a basic American right that a
18 defendant appears before the Court, his peers,
19 clothed with the indicia of innocence, a
20 presumption of innocence, built into that
21 notion, this does violence. This does violence
22 to that presumption of innocence.
23 SENATOR SOLOMON: Mr. President.
3657
1 ACTING PRESIDENT KUHL: Senator
2 Solomon.
3 SENATOR SOLOMON: Thank you, Mr.
4 President.
5 Will Senator Maltese yield,
6 please?
7 ACTING PRESIDENT KUHL: Senator
8 Maltese, do you yield to Senator Solomon?
9 SENATOR MALTESE: Yes.
10 ACTING PRESIDENT KUHL: Senator
11 does.
12 Senator Solomon, will you yield
13 temporarily?
14 Senator Present.
15 SENATOR PRESENT: Mr. President.
16 Can we lay this bill aside just for a moment,
17 and take up 727 and read the last section.
18 ACTING PRESIDENT KUHL: Calendar
19 699 will be laid aside just for a moment.
20 Clerk will call up Calendar
21 Number 727.
22 THE SECRETARY: Calendar Number
23 727, by Senator Hannon, Senate Bill Number 6627,
3658
1 an act to amend the Administrative Code of the
2 City of New York.
3 ACTING PRESIDENT KUHL: Clerk
4 will read the last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll.)
10 ACTING PRESIDENT KUHL: Senator
11 Oppenheimer, how do you vote on this bill?
12 SENATOR OPPENHEIMER: I would
13 like to vote in the negative, please.
14 ACTING PRESIDENT KUHL: Senator
15 Oppenheimer recorded in the negative.
16 The roll call will be withdrawn.
17 Excuse me. While the roll call is still open -
18 Senator Velella.
19 SENATOR VELELLA: Negative.
20 ACTING PRESIDENT KUHL: In the
21 negative.
22 Senator Goodman.
23 SENATOR GOODMAN: Nay.
3659
1 ACTING PRESIDENT KUHL: In the
2 negative.
3 Senator Padavan.
4 SENATOR PADAVAN: (Indicating
5 negative.)
6 ACTING PRESIDENT KUHL: In the
7 negative.
8 Senator LaValle.
9 SENATOR LAVALLE: Aye.
10 ACTING PRESIDENT KUHL: In the
11 affirmative.
12 Now, the roll call will be
13 withdrawn. The bill is laid aside.
14 We will return to Calendar Number
15 699.
16 SENATOR SOLOMON: Okay. We got
17 this straight?
18 THE SECRETARY: Calendar Number
19 699, by Senator Volker.
20 SENATOR SOLOMON: Mr. President.
21 Will Senator Maltese yield?
22 ACTING PRESIDENT KUHL: Chair
23 recognizes Senator Solomon.
3660
1 SENATOR SOLOMON: Mr. President.
2 Will Senator Maltese yield?
3 SENATOR MALTESE: Yes, Mr.
4 President.
5 ACTING PRESIDENT KUHL: Senator
6 Maltese, do you yield?
7 Senator Maltese yields. Senator
8 Solomon.
9 SENATOR SOLOMON: I forgot the
10 question.
11 Senator Maltese, I see the
12 Ranghelle decision came down in 1986. If this
13 has been such a -- when was this developed or
14 seen by the prosecutors as such a pressing
15 issue, because it's 1994 now?
16 SENATOR MALTESE: Mr. President.
17 In the very same decision, there were
18 observations made by Judge Bellacosa as to
19 difficulties with this decision.
20 In 1987, a subsequent case,
21 People versus Jones, that's when Judge Bellacosa
22 made statements, both that it was a prosecutor's
23 nightmare but, in addition, indicating that as a
3661
1 common law rule it could be amended by statute,
2 and he indicated that the Legislature should
3 take a look at the judge-made law. The
4 prosecutors, so far as I know, have indicated
5 difficulty with it from the time of the decision
6 in '86 and subsequently in '87.
7 SENATOR SOLOMON: Mr. President.
8 If Senator Maltese will yield?
9 ACTING PRESIDENT KUHL: Senator
10 Maltese, do you continue to yield?
11 SENATOR MALTESE: Yes.
12 ACTING PRESIDENT KUHL: Senator
13 does.
14 SENATOR SOLOMON: Senator, I
15 understand this is not your bill, so if you have
16 the answer, that's fine. If not, that's okay.
17 Do you know when this bill was
18 first introduced or any other bill similar to
19 this was first introduced?
20 SENATOR MALTESE: Mr. President.
21 That's what I've just been advised. The bill
22 was introduced in 1987 and subsequently in every
23 year and apparently was passed by the Senate
3662
1 every year following that.
2 SENATOR SOLOMON: Thank you, Mr.
3 President.
4 SENATOR LEICHTER: Mr. President.
5 ACTING PRESIDENT KUHL: Senator
6 Leichter. On the bill?
7 SENATOR LEICHTER: Mr.
8 President. If Senator Maltese would yield,
9 please?
10 ACTING PRESIDENT KUHL: Senator
11 Maltese, do you yield to Senator Leichter?
12 SENATOR MALTESE: Yes.
13 ACTING PRESIDENT KUHL: The
14 Senator does.
15 SENATOR LEICHTER: Senator, I am
16 concerned about a point that Senator Galiber
17 made, which is, that you are shifting the burden
18 of proof; that it's on the defendant to show
19 that he or she had their substantial rights
20 affected by the failure of the prosecutor to do
21 what the prosecutor should do, which is turn
22 over papers.
23 But what I'm specifically
3663
1 concerned about is the language in this bill
2 that says that -- and I'm reading. The key word
3 is on line 11. Let me read the whole sentence:
4 "The Court shall not set aside a conviction or
5 reverse or modify a judgment on account of a
6 failure to comply with the provisions of Section
7 240.45 of this article..." -- that is the
8 requirement to turn over the papers and
9 documents -- "...unless the defendant
10 demonstrates" -- demonstrates -- "that his
11 substantial rights were affected."
12 By what burden of proof,
13 preponderance, clear and convincing, beyond a
14 reasonable doubt?
15 SENATOR MALTESE: Mr. President.
16 The rule that prevailed prior to the Rosario
17 case and was changed by the Rosario case in all
18 other discovery matters right up until the
19 People versus Ranghelle indicated that the
20 Harmless Error Rule, the rules that indicated
21 that unless a defendant's substantial rights
22 were affected adversely, were prejudiced, that
23 that error would not require the setting aside
3664
1 or modification of a judgment or be calling for
2 a new trial.
3 In all other discovery motions,
4 the defendant would have to show that his
5 substantial rights were violated if he was
6 bringing forth some evidence that would -- some
7 evidence that would indicate that the prosecutor
8 had erred willfully or that it was not a
9 harmless error that could be modified by an
10 action of the Court.
11 The reason that this specific
12 legislation is being put in is because this is
13 so different. As I indicated earlier, this is
14 not the rule that prevails in any other
15 jurisdiction in the United States. This is a
16 rule that twists the Rosario rule, which since
17 '61 has become noncontroversial. The element
18 that my good colleague, Senator Galiber, has
19 indicated, the elements of fairness, the element
20 of a balancing of the equities so that -- and
21 giving every advantage to the defendant, so that
22 he would have a fair trial has been carried,
23 prior to Ranghelle, to a logical conclusion.
3665
1 But this conclusion, I submit, is
2 illogical. It is a twisted perversion because
3 it indicates that even if the prior statement
4 was not inconsistent to any degree; as a matter
5 of fact, even if the prior statement of the
6 witness in question is, "I saw him do it; I saw
7 him pull the trigger, and I saw him kill the
8 deceased," and that is not inconsistent with the
9 subsequent statement of the witness, if that
10 statement through inadvertance and not through
11 bad faith were not disclosed to the defendant
12 prior to the witness testifying, that case would
13 demand the reversal and a new trial.
14 SENATOR LEICHTER: Mr. President.
15 ACTING PRESIDENT KUHL: Senator
16 Leichter.
17 SENATOR LEICHTER: Mr.
18 President. Senator Maltese, you totally failed
19 to address my question. You made another
20 commercial for the bill. You did it well. But
21 I'm not going to repeat the question. I will
22 just try to deal with it myself.
23 The point that I was trying to
3666
1 get at, Senator, was that while I might have no
2 difficulty if a prosecutor failed to turn over a
3 paper and that paper, as you indicated, in no
4 way affected the substantive rights of the
5 defendant. But then, to put the burden on the
6 defendant to show that the paper that was
7 improperly withheld or failed to be turned over
8 -- and it doesn't matter whether it was
9 purposefully or whether it was inadvertent and
10 negligent, or so on.
11 We have these rules in how to do
12 trials. I don't ever do criminal work. I
13 wouldn't trust any defendant to my knowledge of
14 the Criminal Law, but I do some civil work, and
15 I know the importance of turning papers over,
16 and the sanctions that we impose on attorneys
17 and parties if you fail to turn over papers.
18 If it's important in civil cases,
19 it's certainly more important in criminal cases
20 because one of the things that makes our system
21 so wonderful, as Joe Galiber says, is that we do
22 give every opportunity to the defendant because
23 we want to make sure. We want to make sure that
3667
1 we don't convict anybody improperly.
2 I remember first coming to this
3 country and hearing the statement -- as a young
4 person, I was impressed by it -- that we'd
5 rather have 99 guilty people go free than to
6 convict one innocent person. I question whether
7 that's any longer the belief of some people.
8 So, when you have a bill of this
9 sort, I'm just troubled by the fact that you now
10 put the burden on the defendant to show that
11 that paper which was improperly withheld
12 affected his substantive rights. That may be
13 difficult to do. There may be instances where,
14 on the face of it, the paper doesn't seem to
15 directly contradict the defendant's guilt; but
16 an attorney, somebody as skillful as you, having
17 information and the paper, would use it with a
18 witness, and so on. Seems to me that the burden
19 ought to be on the prosecutor -- on the
20 prosecutor to show that that paper did not
21 affect the substantive rights.
22 So my question to you was, if you
23 are putting the burden on the defendant, what is
3668
1 the nature of the -- does he have to show it by
2 the preponderance of the evidence or all the
3 various gradations that we have? But I don't
4 know.
5 I don't know. I think I would be
6 troubled with this bill irrespective of the
7 degree burden you put on the defendant. I would
8 vote for this bill if the burden was on the
9 prosecutor to show that the mistake that the
10 prosecutor made did not affect the rights of the
11 defendant. But, then, where the defendant was
12 damaged or may have been damaged, certainly he
13 didn't get all the papers and documents that he
14 should have. And now you say you didn't get
15 them? "Yeah, you didn't get 'em. Show us that
16 it hurt you." I think that's wrong, Senator.
17 SENATOR MALTESE: Mr. President.
18 ACTING PRESIDENT KUHL: Senator
19 Maltese on the bill.
20 SENATOR MALTESE: The burden -
21 the burden on the prosecutor to prove the
22 defendant's guilt has not shifted; the burden
23 remains the same.
3669
1 As to the specific document in
2 question, the burden, if you will, has not
3 shifted as far as the guilt or innocence of the
4 defendant. What the court -- or what the
5 Legislature here is attempting to do is return
6 sanity to a decision, a court-made decision, a
7 common law decision, which is a rule of
8 evidence, and they have taken the Rosario rule,
9 which I think all of us at this time find to be
10 a reasonable rule, and they have done what we do
11 in criminal trials. They leave it to a jury
12 first of all, but ultimately a judge. And if in
13 a judge's deliberation, he finds that this
14 document when it is discovered would have
15 affected the rights, the substantial rights, of
16 the defendant adversely to whatever degree in
17 his analysis he feels is detrimental, then he
18 still has the same rights he had originally to
19 order a new trial and reverse or modify the
20 prior judgment of the court.
21 What my good colleague, Senator
22 Galiber, was talking about earlier as far as
23 when we were younger, some of us, and we were in
3670
1 various phases of our career, I was a prosecutor
2 for some three and a half years under two
3 district attorneys, two distinguished district
4 attorneys one Nat Hentel and the other a member
5 of this house, Tom Mackell. And I find that in
6 the passage of years -- now it will be almost 30
7 years -- my recollection sometimes dims, and I
8 fall prey to the disease of people who start
9 going into their 60s and 70s that the good old
10 days look better and better all the time, and
11 that we were the repositories of all wisdom, and
12 that our judgments were never wrong, and that
13 the things that we did in the district
14 attorney's office were right and just. And
15 perhaps, nowadays, they don't do it the right
16 way.
17 Now, that isn't to say that I
18 don't agree with Senator Galiber that those days
19 we had better judgment and we did what I would
20 consider a better job and that we had more
21 discretion, for instance; and that in my
22 judgment, again, district attorneys did not -
23 in the exercise of their discretion did not -
3671
1 were not unfair, were not unjust and were able
2 to carry through, carry the best efforts of
3 justice through and protect at the same time
4 defendants.
5 We are in an adversarial system
6 of law, an adversarial system criminal law.
7 This particular piece of legislation is not
8 adversarial. This particular piece of
9 legislation is attempting to utilize some common
10 sense. Certainly, it goes against all common
11 sense if you say that the prior statement in no
12 way contradicts, is perhaps an identical
13 statement of the witness who is to take the
14 stand for the prosecution. Certainly if it has
15 no effect, absolutely no effect of any kind,
16 detrimental or otherwise on the testimony of the
17 witness or on the ultimate finding of guilt or
18 innocence of the defendant, it should not be a
19 cause for reversal.
20 We talk about the ends of justice
21 being served. Those ends are best served by
22 speedy trials not by congesting the courts with
23 repeated, unnecessary, unfruitful, unfair,
3672
1 requests for appeal.
2 In this case, we are seeking to
3 remedy a court-made rule that a justice of the
4 very court that came up with that rule has
5 termed a prosecutor's nightmare and, in effect,
6 has given us a road map of how we in the
7 Legislature can act so that the best interests
8 of all people and the best interests of the
9 defendant would be protected.
10 The interests of justice are not
11 fairly and justly served by protracted appeals,
12 by unnecessary appeals, and by burdening the
13 courts, the prosecutors, and the taxpayers with
14 the unnecessary expense of trying cases
15 repeatedly and over and over again with no
16 effect and without the best interests of justice
17 being served.
18 SENATOR GALIBER: Senator, will
19 you yield for a question?
20 SENATOR MALTESE: Yes.
21 ACTING PRESIDENT KUHL: Senator
22 Galiber asks Senator Maltese to yield.
23 He does.
3673
1 SENATOR GALIBER: Senator, what
2 would be wrong -- you know, I was there in the
3 good old days. I'm sure you weren't talking
4 about me because I recognize the good old days
5 weren't so good in some instances, so I'm a firm
6 believer in that point.
7 But, Senator, let me ask you a
8 question. Wouldn't it be simpler just to give
9 to the defense counsel all the material?
10 Wouldn't that be the simple way?
11 SENATOR MALTESE: Mr. President.
12 Certainly, it would be the simple way. And the
13 law still demands that if a prosecutor fails to
14 comply as far as good faith, that that's a
15 consideration. That's something to be taken
16 into consideration by the Court.
17 I believe that even under this
18 legislation that if a prosecutor withholds,
19 deliberately withholds, prior statements of the
20 witness that it would be cause for both
21 prosecutorial misconduct and, as well, as very
22 compelling reason to still have a new trial
23 called and a judgment reversed.
3674
1 SENATOR GALIBER: Senator, will
2 you yield for another question?
3 ACTING PRESIDENT KUHL: Senator
4 does.
5 SENATOR GALIBER: How do we prove
6 this, Senator, if we go to the extreme -- I'm
7 dramatizing a little bit. We have liberty
8 toward doing these things from time to time, but
9 now by the time -- assuming that we have the
10 money for the appeals now. Everybody doesn't
11 have -- we have 18B lawyers and Legal Aid and a
12 whole litany of persons representing indigent
13 clients, because they don't have the money.
14 Would you suggest that after the fact if this
15 person is now electrocuted, if we had a death
16 penalty, and all of a sudden we found out that
17 somewhere along the line one of those old-time
18 prosecutors withheld, purposely, a little piece
19 of information that might have been favorable to
20 the defendant, we now say to this prosecutor
21 "We're going to take you before the bar
22 association, maybe take your license away," how
23 do we balance it out? Back to the basic
3675
1 question I had before.
2 Why not just give it to them?
3 Why don't we do the right thing from the outset,
4 and we wouldn't have this. Because you and I,
5 when people start talking about criminal law and
6 prosecution and they use words like "craziness"
7 or they use words like "not applicable in
8 certain instances," which is not the craziness
9 you were talking about before, I look with some
10 suspicion that there are sort of code words out
11 there, "unfair," "no harm," "craziness," "a
12 community sense".
13 Senator, what I'm suggesting is
14 there a very simple remedy, and you know in your
15 heart's heart that there is. Just give it all
16 over to them, because by the time it gets up on
17 appeal, some persons just can't go that far.
18 You know? We've had some experience with folks
19 in jail and make all kinds of -- you know,
20 serious threats about what they are going to do
21 to us when they get out and stuff like that, and
22 we trembled and we say, "We hope they never get
23 out," or they die before they -- you know.
3676
1 There is a concern.
2 But there are people in these
3 institutions, and you and I traveled to some of
4 these institutions, who shouldn't be there. And
5 that's not being soft on crime. This is a
6 procedural, this is an evidentiary rule which
7 has held us in good stead. We nibbled away at
8 the Rosario, but it started out because somebody
9 abused.
10 The simple answer here is just
11 give it all up at the outset. Don't leave it in
12 the hands, the discretion of a district attorney
13 who says, "Well, you know, I got somebody
14 testifying but however...", especially in the
15 area of identification. You drew the analogy,
16 that whole criminal justice system, the whole
17 criminal law, the whole trial experience that we
18 have, this whole area of identification. So if
19 you get somebody up and say, such and such, "I
20 saw him pull the gun out and I saw him and this
21 is the person," you are suggesting that if the
22 district attorney has some evidence that this is
23 not so or could be or a doubt somewhere, he can
3677
1 keep it in his back pocket; and the only remedy
2 that the defendant has is if, by chance,
3 somewhere down the line, years later, were you
4 able to prove proof it.
5 And the burden, Senator, does
6 shift to the defendant. Whether you say it or
7 not, it does shift to the defendant. The
8 decision says that, or the suggestion there,
9 shifts over; that he through the process can now
10 come up and find out that this might have been
11 more than just a harmless rule; because what
12 little practice I have -- it's very little -
13 this harmless rule wasn't applied in this
14 instance.
15 The Court said harmless rules is
16 when somebody blinked at the wrong time, or they
17 said they read a paper or they did something in
18 the course of the trial and the Court of Appeals
19 says, "Listen," or the Appellate Division says,
20 "This is a harmless error, because there is
21 overwhelming other evidence that he or she would
22 have been convicted any way." This is not it.
23 What you are attempting to do
3678
1 doesn't cover that harmless area. This covers
2 basic rights that the defendant has, and we all
3 know this, and it's just Monday and it's a
4 little frustrating there's no budget so we -
5 you know, we spend some time on a very important
6 issue. But, you know, you got the votes and it
7 will probably go through. You've done it
8 before.
9 But, Senator, there comes a time
10 -- and I'm not sure we're going to see it in
11 our lifetime -- where we have to put a
12 screeching halt -- now I'll use a code word -
13 this "nonsense" of slowly taking away basic
14 human rights that people have. We got to stop
15 some place.
16 SENATOR GOLD: Last section.
17 ACTING PRESIDENT KUHL: Clerk
18 will read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect on the first day of
21 November next succeeding the date on which it
22 shall have become a law.
23 ACTING PRESIDENT KUHL: Call the
3679
1 roll.
2 (The Secretary called the roll.)
3 SENATOR GOLD: Mr. President.
4 ACTING PRESIDENT KUHL: Senator
5 Gold to explain his vote.
6 SENATOR GOLD: Yes, thank you
7 very much.
8 Mr. President. My distinguished
9 colleague from the County of the Bronx could not
10 possibly be more correct than he has been in the
11 last few minutes, and that's because we're
12 talking about the real world.
13 Now, I have tried cases, a lot of
14 them, and believe me, I love juries but there's
15 plenty of times when I had the feeling that
16 while the jury came in with what I thought was
17 the right verdict, a judge might have done
18 something different. And that judge doing
19 something different might have thought that the
20 failure to give simple discovery might have been
21 unsubstantial in terms of the rights of the
22 defendant because the judge would have done
23 something else.
3680
1 And you can't do that. You can't
2 put the situation to have a Court making that
3 determination when the Court is not trying the
4 case.
5 There was one case I had where
6 the judge's eyebrows went up when the jury came
7 back with the verdict, and he called me up to
8 the bench. In a very, very friendly way and
9 kind of cute way, he says, "Manny, what was the
10 nature of the defense again?" And he thought it
11 was funny, because he never would have come in
12 with the verdict of the jury. That judge, who
13 was one of the really great ones in this state,
14 happens to now be an Appellate Division judge.
15 And the bottom line here is that
16 Senator Leichter made what I thought was a
17 reasoned person's offer. If you want to give a
18 district attorney the right to argue that the
19 rights weren't prejudiced, then the district
20 attorney carries that burden. And then let the
21 defense lawyer stand up and say, "But you don't
22 understand what I would have done during
23 cross-examination," or, Senator Maltese, in your
3681
1 very extreme case, maybe that would have
2 affected the plea bargain system.
3 And when you say the issue of
4 guilt or innocence, I point out to you that in
5 the federal government, they doesn't allow a
6 judge to be involved in the plea bargaining, but
7 in the state courts they do, and maybe that
8 would have given the defendant the opportunity
9 to do better for himself in that stage of the
10 proceeding.
11 So the bottom line is, as is
12 often the case, Senator Galiber is correct. The
13 person's rights are protected by a district
14 attorney or an assistant district attorney
15 simply complying with the law, particularly in
16 allowing someone to prepare the defense, which
17 is something that effects their entire life.
18 I have vote in the negative.
19 ACTING PRESIDENT KUHL: Senator
20 Gold in the negative.
21 Announce the results.
22 THE SECRETARY: Those recorded in
23 the negative on Calendar Number 699 are Senators
3682
1 Espada, Galiber, Gold, Leichter, Mendez,
2 Paterson and Solomon. Ayes 48. Nays 7.
3 ACTING PRESIDENT KUHL: The bill
4 is passed.
5 Senator Present.
6 SENATOR PRESENT: Can we go back
7 to 727.
8 ACTING PRESIDENT KUHL: Clerk
9 will read Calendar Number 727.
10 THE SECRETARY: Calendar Number
11 727, by Senator Hannon, Senate Bill Number 6627,
12 an act to amend the Administrative Code of the
13 City of New York.
14 SENATOR GOLD: Explanation.
15 ACTING PRESIDENT KUHL:
16 Explanation has been asked for.
17 SENATOR HANNON: Yes, this bill
18 would amend the City Housing Maintenance Code so
19 that a landlord could commence a proceeding in
20 order to get limited access to an apartment.
21 That would be for the purpose of correcting a
22 housing code violation because a tenant has
23 refused to grant access to the apartment.
3683
1 The beneficiaries of this would
2 be two-fold. The rest of the tenants would
3 benefit so that whatever was causing the code
4 violation would not be harmful to their
5 apartment, and the landlord could make the
6 correction.
7 SENATOR GOLD: Mr. President.
8 ACTING PRESIDENT KUHL: Chair
9 recognizes Senator Gold.
10 SENATOR GOLD: First of all, I
11 want to have out on the record that I'm grateful
12 to Senator Hannon for his courtesy not only
13 today but in the last few days in putting the
14 bill over.
15 Having said that, there is a
16 memorandum in opposition by the New York State
17 Tenant and Neighborhood Coalition, and the
18 problems with this bill I think are very
19 obvious, but that first sentence says an awful
20 lot, "The bill would place in the hands of New
21 York City landlords a new way to harass and
22 unjustifiably penalize tenants." They very
23 strongly urge the defeat of this bill.
3684
1 ACTING PRESIDENT KUHL: Senator
2 Hannon.
3 SENATOR HANNON: Mr. President.
4 I want to point out that I think the memorandum
5 is entirely illogical and misplaced. First of
6 all, all of the proceedings would have to be
7 through court. There is absolutely no self-help
8 allowed here whatsoever.
9 Second of all, this is not
10 unjustifyingly penalizing tenants. There are
11 tenants who are equally desirous of getting this
12 bill as anybody else. When you live in an
13 apartment building, the quality of your life
14 depends as much on the services provided by the
15 landlord as the style of life maintained by your
16 fellow tenants. If some tenant refuses to give
17 access and there is water leaking through that
18 apartment or they are keeping a filthy apartment
19 and those things cannot be cleaned up by the
20 landlord, it's the other tenants who suffer.
21 Frankly, the landlord has a great
22 excuse if he can't get access. So by voting
23 against this bill, you are voting against
3685
1 tenants.
2 And let me close by stressing,
3 it's all under supervision of the New York City
4 Housing Court judges who, if there is anything
5 to be said, have been pretty well on the lookout
6 for the interest of tenants.
7 ACTING PRESIDENT KUHL: Senator
8 Markowitz.
9 SENATOR MARKOWITZ: Mr.
10 President. A couple of questions, Senator
11 Hannon, if I may.
12 ACTING PRESIDENT KUHL: Senator
13 Hannon, do you yield to Senator Markowitz?
14 SENATOR HANNON: Yes.
15 ACTING PRESIDENT KUHL: Senator
16 yields.
17 SENATOR MARKOWITZ: I have a
18 couple of questions. Whenever I hear from you,
19 Senator, on those rare occasions, that a piece
20 of legislation is supported by the tenants, you
21 recognize of course that I have to -- or some
22 tenants and that it's real a pro-tenant bill, I
23 begin to shake whether I'm in my seat or
3686
1 standing because I know that I have to look it
2 over again, because I don't think there has
3 really been a time that I now of when you have
4 gotten up here as a tenant supporter. So let me
5 just ask some questions, and I know that your
6 knowledge of this particular piece of
7 legislation. You'll certainly be able to
8 respond quickly to this.
9 Is there any fiscal implication
10 for this particular legislation?
11 SENATOR HANNON: There is no
12 appropriation necessary because of this.
13 SENATOR MARKOWITZ: Secondly, you
14 say that those of us that are concerned about
15 tenants in New York ought to take some solace in
16 the fact that the New York City Housing Court
17 will review any of the actions or misbehavior,
18 if any occurs, from the owners. Do you believe
19 this might add an additional burden on the New
20 York City Housing Court, as we currently know
21 it.
22 SENATOR HANNON: Actually, no.
23 Because the number of times that the landlord
3687
1 Has to go back to report that the violations
2 have not been fixed will be diminished because
3 the landlord will be able to say, "Yes, I got
4 access to the apartment. I have been able to
5 correct it; and, therefore, we don't have to
6 continue with this proceeding." So I would
7 think, if anything, one could surmise that the
8 burden on the court would be reduced.
9 SENATOR MARKOWITZ: Senator, it
10 has been my experience over many, many years,
11 way before I became a Senator, that landlords
12 very often fail to really make appointments with
13 their apartment tenants in terms of repairs.
14 Are we requiring in this bill as proof to the
15 Court that in fact the tenant has been served
16 with a certified request for access into that
17 apartment?
18 SENATOR HANNON: That very well
19 could be provided for, since you have to apply
20 to the court for the order and it can be issued
21 at the discretion of the court.
22 SENATOR MARKOWITZ: Right. But
23 I'm asking again -
3688
1 SENATOR HANNON: It shall be
2 served as the Court may direct. "If the Court
3 finds that the tenant has denied such access,"
4 as I read from the proposed bill, "or is causing
5 the violation, the Court shall direct the tenant
6 to provide access at a specific time and date
7 for the purpose of permitting the landlord,
8 agents, or employees to correct such violation."
9 I believe that responds directly
10 to your point about making a specific
11 appointment.
12 SENATOR MARKOWITZ: See, my
13 experience should be, Senator -- our experience,
14 our mutual effort should be what will work to
15 get these apartments repaired. Now, there is no
16 question that not every tenant is necessarily an
17 angel and not every landlord is necessarily the
18 opposite of an angel, for sure.
19 But one thing we could agree on.
20 There are many abuses in the system. What we
21 ought to be doing is striving to come up with
22 the legislation that meets the needs of both
23 tenants and owners of property. Both. We have
3689
1 to be sure, for instance, Senator, that the
2 remedy that the owner wishes to do is actually
3 the work that has to be done.
4 We ought to impose a penalty on
5 owners who make repair times and then fail to
6 show, which happens all the time.
7 What about if there is a
8 disagreement on who caused the violation? That
9 very often occurs in landlord/tenants affairs as
10 you know.
11 SENATOR HANNON: None of the
12 points that you raise are forestalled or fore
13 closed by this legislation. All of those points
14 are and will be raised in court proceedings by
15 tenants now. All we're trying to say is -- who
16 caused it? It doesn't matter. If it's causing
17 -- if you have a flood in the bathroom and it's
18 leaking downstairs and all the way down to the
19 lower floors, you want it fixed.
20 I'm sure the courts are going to
21 say if it's somehow the fault of the landlord,
22 they are going to get hit. The landlords, by
23 the way, are under greater penalties. For not
3690
1 only will they get fined for service violations
2 directly but also they could get reduction in
3 rent orders for failing to have a good
4 apartment.
5 So I mean the economic incentive
6 is all -- and the social incentive is all in
7 getting these things fixed.
8 And let me just respond one more
9 thing, Senator Markowitz. This puts all of the
10 procedure through the courts. If somebody has a
11 better procedure, they haven't made any specific
12 suggestions that I can see of, and the bill has
13 been out on the calendar for a number of weeks.
14 It came out of committee. I haven't heard of
15 anything, and we had it in last year also.
16 SENATOR MARKOWITZ: Okay. On the
17 bill now if I may.
18 ACTING PRESIDENT KUHL: Senator
19 Markowitz the bill.
20 SENATOR MARKOWITZ: I hear what
21 the chairman of our Housing Committee is saying,
22 and I think the arguments that you presented is
23 really a good reason why we don't necessarily
3691
1 need this bill at this time, and I also think
2 that until such time as we do something with the
3 Housing Court, Senator Hannon, that we help
4 streamline the Housing Court that is frankly not
5 working and has not worked for many years, to
6 add additional burdens onto that court, more so
7 than they can handle even with their
8 responsibilities today, puts the tenants even in
9 greater peril.
10 But I think in the legislative
11 memorandum issued by the New York State Tenant
12 and Neighborhood Coalition, I think that the
13 last paragraph, Senator Hannon, is one that
14 should have your attention. "There is no
15 requirement to verify that service is
16 consummated appropriately. The bill does not
17 provide for an inspection to verify the
18 landlord's claim. There is no provision to keep
19 a landlord from racking up unlimited number of
20 days of penalties by, for example, scheduling
21 repairs and not meeting the schedule time, or in
22 other ways misleading the tenants that are
23 involved. There is no provision for bringing
3692
1 the Court's attention to any existing relating
2 proceeding which might be relevant in judging
3 the full context of the allegations. Such
4 proceedings include the Housing Part actions
5 where the tenant is suing the landlord for
6 repairs, holdover proceedings where landlords
7 can sue tenants for allegations relating to the
8 denial of access and nonpayment proceedings
9 where the most significant offense is a
10 counterclaim for repairs."
11 What I'm basically saying is I
12 recognize also that there are examples in my own
13 building and in other buildings that I have
14 lived in, in which there are certain repairs
15 that are needed, and there have been tenants,
16 I'm sure you know that, that absolutely refuse
17 access to the owners. There are nuts like that,
18 for sure, out there.
19 Whether or not legislation like
20 this is what we need to overcome that when, in
21 fact, the owners are allowed emergency access
22 when there is a clear and present danger -- and
23 that's true, Senator. "It is not true," you are
3693
1 shaking your head. It is true. Landlords can
2 gain access where there is a threat to the
3 building or the tenants in that building, even
4 if a tenant refuses to allow access, and that's
5 the truth, where there are major leaks and
6 electrical problems in the building , and it's
7 our example up and down.
8 Whether or not this is needed at
9 this time, however well intentioned you say it
10 is, I have to urge my colleagues to say no until
11 such time that we can craft another piece of
12 legislation that meets your goals and that meets
13 what our experiences have been.
14 ACTING PRESIDENT KUHL: Senator
15 Solomon.
16 SENATOR SOLOMON: Yes, Mr.
17 President. Will the sponsor yield, please?
18 ACTING PRESIDENT KUHL: Senator
19 Hannon, do you yield to Senator Solomon.
20 SENATOR HANNON: Yes, Mr.
21 President.
22 ACTING PRESIDENT KUHL: Senator
23 yields.
3694
1 SENATOR SOLOMON: Senator, I used
2 to do a lot of work in Housing Court at one
3 point in time, and this was raised; but in many
4 instances, there were never records kept; and
5 the attempt to gain access would be the
6 Superintendent knocking on the door at 2:00 in
7 the afternoon when someone was at work.
8 My question is this, as I read
9 this bill, this looks as if the landlord's
10 basically going to get an ex parte order on
11 this. And that's what I'm curious about. It
12 doesn't say any requirement -- I don't have the
13 previous section in front of me. I don't have
14 the section that's being amended in front of me,
15 but this looks as if the landlord could just go
16 in and get an ex parte order on this on an
17 affidavit.
18 SENATOR HANNON: You could get it
19 ex parte in the sense that the order could
20 issue, but you have to have service. And,
21 frankly, if there was any doubt in the judge's
22 mind, they would do as they currently do, and
23 they would require the very fact of the order to
3695
1 be in question and have a hearing in court.
2 So somebody has to start it. The
3 question is if the judges were to feel there was
4 any question of fact, they would have the
5 hearing.
6 SENATOR SOLOMON: Well, I don't
7 know. The tenant is -
8 ACTING PRESIDENT KUHL: Senator
9 Solomon, you are asking Senator Hannon to
10 continue to yield?
11 SENATOR SOLOMON: Yes.
12 ACTING PRESIDENT KUHL: Senator
13 Hannon, do you continue to yield?
14 SENATOR HANNON: Yes.
15 ACTING PRESIDENT KUHL: Senator
16 does.
17 SENATOR SOLOMON: What I'm just
18 saying, Senator, is that the way this proceeding
19 is initiated is by an application to the
20 landlord to the Court, not a service of any
21 order or any notice upon the tenant. In other
22 words, there is no process in here where the
23 landlord serves notice on the tenant saying,
3696
1 "I've attempted to get in, et cetera, et
2 cetera, and now I'm going to go to court
3 requesting a court order."
4 SENATOR HANNON: Let me point out
5 the first two lines, "If the owner is unable to
6 to correct the violation because a tenant has
7 denied the landlord access or the tenants is
8 causing the violation itself," all of this
9 necessarily presupposes that there has been
10 prior interaction between the two in regard to
11 the incident and that this is a subsequent
12 step. So that the use of the ex parte is
13 incorrect. When we use ex parte, it is usually
14 in regard to an injunction or a TRO, where there
15 has not been any interaction between the
16 parties. This is not such a situation.
17 SENATOR SOLOMON: So -- okay.
18 Okay. Thank you.
19 ACTING PRESIDENT KUHL: Clerk
20 will read the last section on Calendar Number
21 727.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
3697
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll.)
4 ACTING PRESIDENT KUHL: Announce
5 the results.
6 THE SECRETARY: Those recorded in
7 the negative on Calendar Number 727 are Senators
8 Connor, Espada, Galiber, Gold, Goodman,
9 Leichter, Markowitz, Mendez, Montgomery, Nanula,
10 Onorato, Oppenheimer, Padavan, Paterson, Smith,
11 Solomon, Spano and Velella. Ayes 37. Nays 18.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 SENATOR CONNOR: Mr. President.
15 ACTING PRESIDENT KUHL: Senator
16 Connor.
17 SENATOR CONNOR: Thank you, Mr.
18 President. May I have unanimous consent to be
19 recorded in the negative on Calendar Number 699.
20 ACTING PRESIDENT KUHL: Without
21 objection, Senator Connor is recorded in the
22 negative on Calendar Number 699.
23 Senator Galiber.
3698
1 SENATOR GALIBER: Yes, Mr.
2 President. May I have unanimous consent to be
3 recorded in the negative on Calendar 654 and
4 Calendar 773.
5 ACTING PRESIDENT KUHL: Without
6 objection, Senator Galiber is recorded in the
7 negative on those two bills.
8 Senator Montgomery.
9 SENATOR MONTGOMERY: Yes, Mr.
10 President. I would like unanimous consent to be
11 recorded in the negative on Calendar 699.
12 ACTING PRESIDENT KUHL: Without
13 objection, Senator Montgomery is recorded in the
14 negative on Calendar 699.
15 Senator Smith.
16 SENATOR SMITH: I would like
17 unanimous consent to be recorded in the negative
18 on 699.
19 ACTING PRESIDENT KUHL: Without
20 objection, Senator Smith is recorded in the
21 negative on Calendar Number 699.
22 Senator Trunzo.
23 SENATOR TRUNZO: Mr. President.
3699
1 On page 52, I offer the following amendments to
2 Calendar Number 875, Senate Print Number 7726,
3 and ask that said bill retain its place on the
4 Third Reading Calendar.
5 ACTING PRESIDENT KUHL: Without
6 objection, so ordered.
7 Senator Present.
8 SENATOR PRESENT: Housekeeping?
9 ACTING PRESIDENT KUHL: I think
10 that completes it, Senator Present.
11 SENATOR PRESENT: Mr. President.
12 There being no further business, I move that we
13 adjourn until tomorrow at 3:00 p.m.
14 ACTING PRESIDENT KUHL: Senate
15 stands adjourned until tomorrow, Tuesday, at
16 3:00 p.m.
17 (Whereupon, at 6:22 p.m., Senate
18 adjourned.)
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