Regular Session - February 13, 1995
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8 ALBANY, NEW YORK
9 February 13, 1995
10 3:03 p.m.
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13 REGULAR SESSION
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17 SENATOR JOHN A. DeFRANCISCO, Acting President
18 STEPHEN F. SLOAN, Secretary
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806
1 P R O C E E D I N G S
2 ACTING PRESIDENT DeFRANCISCO:
3 The Senate will come to order. I will ask
4 everyone present to please rise and repeat with
5 me the Pledge of Allegiance to the flag.
6 (The Senate joined in the Pledge
7 of Allegiance to the Flag.)
8 The invocation today will be
9 given by the Reverend Terry Troia from the
10 Brighton Heights Church of Staten Island.
11 THE REVEREND TERRY TROIA: Let us
12 pray.
13 Breath of Creation, whom we know
14 by many names, Ala, Hashim, Lord, we honor You
15 as a poor man honors his bread.
16 In the midst of these difficult
17 days of budget negotiations, instill in Your
18 legislators wisdom and deliberation and the
19 courage to stand with those in need. May the
20 lives of the widow, orphan, and stranger and the
21 suffering of those among us fighting addiction
22 and disease of mind and body, be foremost in the
23 hearts and in the minds of Your servants
807
1 gathered here.
2 May the whisper of the weakest
3 resound in our hearts and may the work of Your
4 Senators be transformed into acts of living
5 kindness, done for Your people's sake and in
6 Your most holy name.
7 Amen.
8 ACTING PRESIDENT DeFRANCISCO:
9 Thank you, Reverend Troia.
10 Reading of the Journal.
11 THE SECRETARY: In Senate,
12 Sunday, February 12. The Senate met pursuant to
13 adjournment. Senator Hoblock in the chair upon
14 designation of the Temporary President. The
15 Journal of Saturday, February 11, was read. On
16 motion, Senate adjourned.
17 ACTING PRESIDENT DeFRANCISCO:
18 Without objection, the Journal stands approved
19 as read.
20 Presentation of petitions.
21 Messages from the Assembly.
22 Messages from the Governor.
23 Reports of standing committees.
808
1 The Secretary will read.
2 THE SECRETARY: Senator Levy from
3 the Committee on Transportation reports the
4 following bill directly for third reading:
5 Senate Bill Number 317A, by
6 Senator Johnson and others, an act to amend the
7 Vehicle and Traffic Law, in relation to maximum
8 speed limits.
9 Senator Marchi from the Committee
10 on Corporations, Authorities, and Commissions
11 reports the following bills directly for third
12 reading:
13 Senate Bill Number 769, by
14 Senator DeFrancisco, Public Authorities Law, in
15 relation to the Onondaga County Resource
16 Recovery Agency.
17 1117, by Senator Skelos, an act
18 to amend the Business Corporation Law and the
19 Civil Practice Law and Rules, in relation to
20 shareholders derivative suits.
21 All bills reported directly for
22 third reading.
23 ACTING PRESIDENT DeFRANCISCO:
809
1 Without objection, all bills reported directly
2 to third reading.
3 Reports of select committees.
4 Communications and reports from
5 state officers.
6 Motions and resolutions.
7 Senator Skelos.
8 SENATOR BRUNO: Mr. President. I
9 believe there is a resolution at the desk. May
10 we please have the title read.
11 ACTING PRESIDENT DeFRANCISCO:
12 The Secretary will read.
13 THE SECRETARY: Legislative
14 Resolution Number 339, by Senators Hoblock,
15 Bruno, and Farley, Legislative Resolution
16 commemorating Hope Day on Monday, February 13,
17 1995.
18 SENATOR HOBLOCK: I move to
19 adopt, please.
20 ACTING PRESIDENT DeFRANCISCO: On
21 the resolution. All in favor signify by saying
22 aye.
23 (Response of "Aye.")
810
1 Opposed, nay.
2 (There was no response.)
3 The ayes have it, and the
4 resolution is adopted.
5 Senator Skelos, are you ready for
6 the calendar?
7 SENATOR SKELOS: Please recognize
8 Senator DiCarlo and then Senator Velella.
9 ACTING PRESIDENT DeFRANCISCO:
10 Senator DiCarlo.
11 SENATOR DiCARLO: Mr. President.
12 On page 5, on behalf of Senator Rath, I offer
13 the following amendments to Senate Print Number
14 208, and ask that the bill retain its place on
15 Third Reading Calendar.
16 ACTING PRESIDENT DeFRANCISCO:
17 Without objection, so ordered.
18 Senator Velella.
19 SENATOR VELELLA: Mr. President.
20 On behalf of Senator Stafford, please place
21 sponsor stars on Calendar Numbers 40 and 41.
22 ACTING PRESIDENT DeFRANCISCO:
23 Sponsor stars will be so placed on -- 40 and
811
1 41?
2 SENATOR VELELLA: Yes.
3 ACTING PRESIDENT DeFRANCISCO:
4 Without objection.
5 SENATOR VELELLA: Thank you, Mr.
6 President. On page 4, I offer the following
7 amendments to Calendar Number 32, Senate Print
8 Number 22, and ask that said bill retain its
9 place on the Third Reading Calendar.
10 ACTING PRESIDENT DeFRANCISCO:
11 Without objection, so ordered.
12 Senator Skelos.
13 SENATOR SKELOS: May we now have
14 the noncontroversial calendar read.
15 ACTING PRESIDENT DeFRANCISCO:
16 All right. We'll take up the reading of the
17 noncontroversial calendar. The Secretary will
18 read.
19 THE SECRETARY: Calendar Number
20 43, by Senator Maltese, Senate Bill Number 449.
21 SENATOR PATERSON: Lay it aside.
22 ACTING PRESIDENT DeFRANCISCO:
23 Lay the bill aside.
812
1 THE SECRETARY: Calendar Number
2 54, by Senator DiCarlo, Senate Bill Number 500,
3 an act to amend the Criminal Procedure Law and
4 the Penal Law, in relation to felony sex
5 offenses.
6 SENATOR PATERSON: Lay it aside.
7 ACTING PRESIDENT DeFRANCISCO:
8 Please lay it aside.
9 THE SECRETARY: Calendar Number
10 55, by Senator Present, Senate Bill Number 503,
11 an act to amend the Penal Law, in relation to
12 lawful possession of weapons by persons 11 years
13 of age.
14 ACTING PRESIDENT DeFRANCISCO:
15 Lay the bill aside.
16 THE SECRETARY: Calendar Number
17 56, by Senator Cook, Senate Bill Number 561, an
18 act to amend the Criminal Procedure Law.
19 SENATOR PATERSON: Lay it aside.
20 ACTING PRESIDENT DeFRANCISCO:
21 Lay the bill aside.
22 THE SECRETARY: Calendar Number
23 59, by Senator Present, Senate Bill Number 768,
813
1 an act to amend the Criminal Procedure Law.
2 SENATOR PATERSON: Lay it aside.
3 ACTING PRESIDENT DeFRANCISCO:
4 Lay the bill aside.
5 THE SECRETARY: Calendar Number
6 66, by Senator Kuhl, Senate Bill Number 2034, to
7 amend Chapter 356 of the Laws of 1993, amending
8 the General Municipal Law.
9 SENATOR PATERSON: Lay it aside.
10 ACTING PRESIDENT DeFRANCISCO:
11 Lay the bill aside.
12 THE SECRETARY: Calendar Number
13 67, by Senator Kuhl, Senate Bill Number 2081, in
14 relation to exempting certain project of the
15 city of Hornell.
16 SENATOR KUHL: Lay the bill aside
17 for the day, please.
18 ACTING PRESIDENT DeFRANCISCO:
19 The bill is laid aside for the day.
20 That completes the reading of the
21 noncontroversial calendar.
22 SENATOR SKELOS: Mr. President.
23 May we have the controversial calendar read now.
814
1 ACTING PRESIDENT DeFRANCISCO:
2 The Secretary will read.
3 THE SECRETARY: Calendar Number
4 43, by Senator Maltese, Senate Bill Number 449,
5 an act to amend the Education Law, in relation
6 to instructions in the display, use and proper
7 respect for the flag.
8 SENATOR PATERSON: Explanation.
9 ACTING PRESIDENT DeFRANCISCO:
10 Explanation. Senator Maltese.
11 SENATOR MALTESE: This bill
12 amends the provisions of the present law and
13 requires that the Commissioner of Education
14 prepares for the public schools a program
15 providing for specific instruction regarding
16 respect for the flag, its display and use, as
17 provided by federal statute and regulations.
18 This bill has been debated at
19 prior years, at least a minimum of the last
20 three prior years, and last year passed the
21 Senate 54 to zero.
22 Basically, what we have attempted
23 to do with this bill is incorporate the
815
1 provisions of Section 802 of the Education Law
2 and incorporate the provisions of Sections 170
3 to 177 of Title 36 of the United States Code,
4 and those sections relate to the National Anthem
5 and conduct during play, the Pledge of
6 Allegiance and conduct during recitation, the
7 display and use of the flag by civilians, the
8 time and occasions for display, the position and
9 manner of display, respect for the flag and
10 conduct during hoisting, lowering and passing of
11 the flag.
12 This is an attempt on the part of
13 the Legislature in the course of many, many
14 demands on a student's time, an instructor's
15 time, teachers and people who set curriculum, to
16 ascertain that instruction be given regarding
17 respect for the flag. This legislation is not
18 proposed in a vacuum. It is proposed because
19 more and more we seem to see a disrespect for
20 the flag of our country and that disrespect
21 unfortunately is manifested at many public
22 events, sporting events.
23 In addition, it's manifested by a
816
1 disrespect for the flag not only during
2 occasions of civil disobedience but those
3 actions of civil disobedience as shown in the
4 public media, on TV, and reported in the media
5 provide unfortunately a bad example for many of
6 our students, many of the young people who have
7 difficulty ascertaining what is right and what
8 is wrong.
9 So what we are attempting to do
10 is give them, give the education authorities an
11 opportunity to provide the proper instruction in
12 what should come naturally, but unfortunately
13 does not, the respect for our country's flag,
14 the symbol of our great nation and the
15 sacrifices of our veterans and all those
16 Americans who have proceeded us.
17 ACTING PRESIDENT DeFRANCISCO:
18 Senator Paterson.
19 SENATOR PATERSON: Thank you, Mr.
20 President.
21 Actually, for those who are
22 unaware, if I had come to the Senate in the last
23 couple of years, I would have thought that the
817
1 Pledge of Allegiance, for instance, would have
2 certainly been the precursor to all of the
3 sessions here, but actually the Pledge of
4 Allegiance that we observe every day at the
5 beginning of our session was brought into effect
6 by resolution in 1989.
7 So this bill is probably
8 something that is refocusing us on the
9 allegiance to our actual country, as certainly
10 was pointed out in the explanation.
11 My only question that I would
12 like to ask is if there is any measurable fiscal
13 impact of this legislation. Otherwise, that's
14 all I wanted to know.
15 ACTING PRESIDENT DeFRANCISCO:
16 Senator Maltese.
17 SENATOR MALTESE: My
18 understanding in prior years was that there were
19 no fiscal implications because it would be
20 handled like any other suggested curriculum
21 changes. The memo -- and in prior years there
22 were no objections made -- provides no fiscal
23 implications and no local fiscal implications.
818
1 ACTING PRESIDENT DeFRANCISCO:
2 Senator Dollinger.
3 SENATOR DOLLINGER: Mr.
4 President. Will the sponsor yield to a couple
5 of questions?
6 SENATOR MALTESE: Yes.
7 ACTING PRESIDENT DeFRANCISCO:
8 Senator Maltese.
9 SENATOR DOLLINGER: Senator, what
10 evidence of need is there for a change in the
11 curriculum on flags in New York State? Do you
12 have any evidence of the need for this change in
13 this state?
14 SENATOR MALTESE: Mr. President.
15 Certainly, I would feel that for any piece of
16 legislation to be enacted we would have some
17 need. This specific legislation is difficult to
18 place in the context of need. The episodes that
19 I recited of disrespect, open disrespect for the
20 flag, all of us have seen instances of this.
21 As far as whether or not the fact
22 that it is not done in many of our schools I
23 think would seem to indicate that there would be
819
1 a need as far as providing for instruction and
2 including it, as I mentioned before, in a
3 curriculum as part of a necessary recommend -
4 necessary educational instruction as far as the
5 respect for the flag.
6 ACTING PRESIDENT DeFRANCISCO:
7 Senator Dollinger.
8 SENATOR DOLLINGER: Again through
9 you, Mr. President. I note in the sponsor's
10 memo, you point out that New York State requires
11 that all of the areas in your bill be covered as
12 part of the curriculum in elementary and
13 secondary schools. Isn't that correct? So we
14 already do this, don't we?
15 SENATOR MALTESE: Mr. President.
16 The program itself would be supplemented by
17 these specific provisions; and while there is a
18 present provision for it, in actuality, we are
19 advised that the instruction, if you will, is
20 very cursory, very brief and subject to the
21 individual whim of whoever happens to be
22 preparing the curriculum.
23 ACTING PRESIDENT DeFRANCISCO:
820
1 Senator Dollinger.
2 SENATOR DOLLINGER: Again through
3 you, Mr. President. Senator, do you know of any
4 specific example, any specific example in this
5 state where you can point to the fact that a
6 teacher in an elementary school has given
7 cursory and just proforma explanation of the
8 flag and the high esteem that the flag is held
9 with in this country as part of the curriculum
10 in education? Do you have any specific school,
11 any specific date, any specific pupil that you
12 can point to who got only a proforma
13 introduction to the flag?
14 ACTING PRESIDENT DeFRANCISCO:
15 Senator Maltese.
16 SENATOR MALTESE: Mr. President.
17 I have not myself personally participated in any
18 of these classroom sessions. Perhaps in the
19 future, it might be a good idea that I and
20 Senator Dollinger and other members of the body
21 do so. I do have not have any specific
22 instances, but common sense which perhaps all
23 too often is lacking in this body as in other
821
1 legislative bodies would dictate that anything
2 subject to the whim or judgment, if you will,
3 ill or good, would vary from case to case and
4 perhaps should be more formalized, and that's
5 what this bill intends to do.
6 ACTING PRESIDENT DeFRANCISCO:
7 Senator Dollinger.
8 SENATOR DOLLINGER: Again through
9 you, Mr. President, if Senator Maltese will
10 yield to another question. Isn't it true,
11 Senator, that the teaching of one plus one
12 equals two could also be subject to the same
13 kind of whim of the teacher? They may give it a
14 lot of emphasis; they may give it just a little
15 bit of emphasis. They may teach two times two,
16 or five times five may get proforma
17 introduction.
18 I mean isn't everything that
19 happens in a courtroom -- excuse me -- in a
20 classroom subject to the possibility of being
21 taken by the teacher and given specific emphasis
22 on some topics and lesser emphasis on others,
23 and isn't that the whole process of education?
822
1 ACTING PRESIDENT DeFRANCISCO:
2 Senator Maltese.
3 SENATOR MALTESE: Mr. President.
4 I think while that may be the whole process of
5 education, as I indicated there are many, many
6 demands on teachers and people who set the
7 curriculum, education specialists,
8 administrators, school administrators, and those
9 demands unfortunately at times force the
10 administrators or the teachers to set
11 priorities, and we may not from time to time
12 agree with those priorities; and while something
13 like rote two times two or mathematics or
14 multiplication tables, we can hope that if this
15 is missed by a particular teacher or in a
16 particular year that it would be repeated
17 subsequently and the student would be able to
18 avail themselves of the education that is
19 proffered in that case.
20 But in this case, we fear that if
21 this would be passed over or provided to not as
22 full an extent as we would wish, we would not be
23 able to remedy that; and, again, common sense
823
1 tells us that the adults that we see showing and
2 evidencing disrespect for the flag must have
3 gone through some educational system to arrive
4 at where they are; and what we are hoping to do
5 by this legislation is provide them with some
6 background so that perhaps they wouldn't be as
7 expeditious in coming forth and showing
8 disrespect for the flag and perhaps would be
9 more reluctant to show disrespect for the flag.
10 ACTING PRESIDENT DeFRANCISCO:
11 Senator Dollinger.
12 SENATOR DOLLINGER: Again,
13 through you, Mr. President. I'm intrigued as
14 Senator Paterson was by your claim that there is
15 no cost or no fiscal implication attached to
16 this legislation. Don't you intend as part of
17 this that someone in the Department of Education
18 would devise a curriculum, then circulate that
19 curriculum around this state, that local school
20 districts would spend their time and effort in
21 curriculum development in making sure that their
22 local curriculum conformed with the state model;
23 and don't you think that will take up a
824
1 significant portion of administrative time so
2 that your estimate that there's no fiscal
3 implication is actually just not true or
4 accurate?
5 ACTING PRESIDENT DeFRANCISCO:
6 Senator Maltese.
7 SENATOR MALTESE: This bill was,
8 as I've mentioned before, debated in prior
9 sessions; and at that period in time, the fiscal
10 implications were indicated to be not applicable
11 and no claim or substantiation was made on
12 behalf of Senator Dollinger or any of those
13 Senators who while arguing against the bill
14 ultimately voted for the bill and, thus, must
15 have had their fears allayed as far as fiscal
16 implications are concerned. So I would say that
17 the expectation is that the programs would be
18 developed in the normal course of business of
19 the educational establishment and that it would
20 provide for no additional expenditures or fiscal
21 implications.
22 ACTING PRESIDENT DeFRANCISCO:
23 Senator Dollinger.
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1 SENATOR DOLLINGER: On the bill,
2 Mr. President.
3 I guess this bill perhaps
4 epitomizes sometimes what we're all about in
5 this chamber. The best I can tell, and I
6 appreciate Senator Maltese's impetus that brings
7 this bill to the fore, but I didn't hear any
8 demonstration of need. In fact, after this bill
9 was passed last year, I used it as the classic
10 demonstration about how the State Senate used
11 the concept of unfunded mandates; that what we
12 tend to do is we tend to take this little
13 picture, individualized picture, of what is
14 wrong with the state and then we devise a bill
15 and we bring it to the Senate floor. I guess
16 members of the Majority bring it to the Senate
17 floor. We don't get a chance to do that.
18 But, nonetheless, they bring it
19 to the Senate floor as an episodic view of
20 what's wrong with New York State. We obviously
21 have some parents who don't know how to accord
22 the flag its proper respect. The fault must lie
23 in the curriculum we teach in our schools, I'm
826
1 not sure I buy that logic.
2 But instead we found out -- what
3 I found out was -- I asked my school districts,
4 "What do you do with the flag?" And they told
5 me we teach flag, we teach patriotism. We do it
6 all the time. It's one thing that the kids love
7 to do. We love to give them this training.
8 They sit in wrapped attention as they are told
9 what the stars and bars mean.
10 I don't think there's any
11 specific need for this. The Senator can't point
12 out any specific need in this state. In
13 addition, it's clearly an unfunded mandate.
14 We're going to require school districts to
15 change their curriculum, not give them any
16 money. I'm sure at some point during this
17 session we'll produce another one of those bills
18 that we always vote on that say no unfunded
19 mandates. The last thing, of course, is I
20 believe it's just a fiction about having no
21 fiscal impact at all.
22 My final comment is this about
23 the flag. I said this yesterday in a meeting of
827
1 veterans in Rochester. I said I believe that
2 the flag is a revered symbol of this country,
3 and I believe it's entitled to respect and our
4 children should be taught what that respect is
5 and how it's properly accorded. But I'd simply
6 point out that the flag now appears on bikini
7 briefs. It appears on bikini bathing suits. It
8 appears on coffee cups, on sweaters, on ties.
9 It appears in the jerseys that were worn by the
10 Dream Team basketball players. It appears on
11 all kinds of swimsuits and other kinds of
12 paraphernalia.
13 But I think we've got to come to
14 a conclusion in this country. Either, we're
15 going to allow the flag to be commercially
16 exploited as it is now or we're going to go back
17 to the days when it was a revered symbol. I
18 don't think we can have it both ways.
19 I voted in favor of this bill
20 last year, frankly because I was afraid that
21 somebody would run one of those fancy political
22 commercials against me and accuse me of being
23 not patriotic because I didn't.
828
1 I think this bill is an unfunded
2 mandate. I think it's a fiction that it has no
3 cost; and, frankly, I think it typifies it what
4 we too often do in this chamber.
5 ACTING PRESIDENT DeFRANCISCO:
6 Senator Montgomery.
7 SENATOR MONTGOMERY: Thank you,
8 Mr. President. I would like to know if the
9 sponsor would yield for a question?
10 ACTING PRESIDENT DeFRANCISCO:
11 Senator Maltese.
12 SENATOR MONTGOMERY: Mr.
13 President. I would like to know if Senator
14 Maltese is amending the existing law that covers
15 instruction for the flag? This bill, does it
16 not, amends Subdivision 1 of Section 802 of the
17 Education Law.
18 ACTING PRESIDENT DeFRANCISCO:
19 Senator Maltese.
20 SENATOR MALTESE: Mr. President.
21 Yes.
22 SENATOR MONTGOMERY: Thank you.
23 Mr. President. I have the law in
829
1 my hand, and I'm trying to figure out just what
2 we're talking about here because the law says
3 that it shall be the duty of the Commissioner of
4 Education to prepare for the use of the public
5 schools of this state a program providing for a
6 salute to the flag and a daily Pledge of
7 Allegiance to the flag, instruction in its
8 correct use and display and such other patriotic
9 exercises as may be deemed by him to be
10 expedient.
11 Now, it sounds like the only
12 thing that Senator Maltese is ultimately doing
13 is adding that we should also teach the children
14 that they should respect the flag. Is that not
15 so? Is that what this is?
16 ACTING PRESIDENT DeFRANCISCO:
17 Senator Maltese.
18 SENATOR MALTESE: Mr. President.
19 Generally speaking, that would be what we would
20 try to do, but because we're setting it forth by
21 statute, we set forth further down the minimum,
22 the provisions of Section 170 through 177 of
23 Title 36 of the United States Code which has the
830
1 headings, the paragraph headings that I referred
2 to earlier, and which I would be glad to provide
3 to Senator Montgomery. Basically, it's as
4 Senator Montgomery as indicated. It supplements
5 those provisions but particularizes them as far
6 as the actual content of what should be included
7 in the curriculum.
8 ACTING PRESIDENT DeFRANCISCO:
9 Senator Montgomery.
10 SENATOR MONTGOMERY: So that in
11 addition to respect, Senator Maltese, if you
12 would yield, you are adding another mandate for
13 a higher level of a more involved curriculum
14 which then has to be developed by the Education
15 Department for which we are proposing a 30
16 percent cut in the Department of Education
17 staff?
18 ACTING PRESIDENT DeFRANCISCO:
19 Senator Maltese.
20 SENATOR MALTESE: Mr. President.
21 The sections are part of the United States Code
22 and I have them before me, and they take up -
23 without all the legislative references, they are
831
1 -- 1, 2, 3, 4, 5 -- well, lengthy. They take
2 up about 12 paragraphs, and they are very
3 specifically set forth as far as the wording;
4 and they are, as I indicated, headed National
5 Anthem, Star Spangled Banner, which is only one
6 sentence. Section 171 is conduct during playing
7 of the Star Spangled Banner. The Pledge of
8 Allegiance to the flag, manner of delivery,
9 display and use of flag, time and occasions for
10 display, and position and manner of display and
11 respect for the flag and conduct during hoisting
12 lowering or passing of flag.
13 ACTING PRESIDENT DeFRANCISCO:
14 Senator Montgomery.
15 SENATOR MONTGOMERY: Thank you,
16 Senator Maltese.
17 On the bill briefly.
18 Mr. President. I reiterate that
19 we already have in law, and it is very clear to
20 me reading this as a lay person. I understand
21 what is required and I understand that every
22 child in the State of New York is required to
23 have some instruction in allegiance to the flag,
832
1 and it's clear to me that we sing our national
2 anthem and we salute the flag, and I suppose
3 that teachers teach it for -- teachers teach
4 respect via teachers teaching appropriate
5 behavior as it relates to this process.
6 Now, I understand that Senator
7 Maltese wants to teach respect, respect of
8 everything, and the flag certainly is one of
9 them and I agree with that. But I think it's a
10 terrible hoax on the citizens of this state to
11 propose legislation which essentially duplicates
12 what we already have, simply says that we are
13 now going to add respect; and in addition to
14 that, we are going to require the Commissioner
15 of Education to go and develop possibly a new
16 curriculum another curriculum.
17 It's another mandate that's going
18 to be passed on; and, quite frankly, I resent
19 this, because the teacher in my child's class
20 already has 30 children in her class. She is
21 doing as much as she can, and I would not want
22 to be a part of any legislation which passes on
23 to her an additional burden to do something over
833
1 and above what she already is struggling to do
2 in that class with those 30 children.
3 And some children are in class
4 with even more children in the room, and maybe
5 it doesn't affect the schools in your district,
6 Senator Maltese, but it certainly does in mine,
7 and my own son's class, moreover.
8 So I'm going to vote no on it
9 because I think we already have a bill. This is
10 not necessary. It does not prove any more
11 allegiance to the flag than we already have. It
12 is not going to require us to have any legal
13 sanctions against anybody who desecrates the
14 flag. So even though you have that concern,
15 this doesn't address it, and it adds an
16 additional burden to the schools in the City of
17 New York, and so I'm against it and I will vote
18 no.
19 ACTING PRESIDENT DeFRANCISCO:
20 Senator Waldon.
21 SENATOR WALDON: Thank you very
22 much, Mr. President. Would the gentleman from
23 not too far from where I reside in Queens yield
834
1 to a question or two?
2 ACTING PRESIDENT DeFRANCISCO:
3 Presumably that is Senator Maltese.
4 SENATOR WALDON: Senator Maltese,
5 do you support the constitutional concept of
6 free speech.
7 SENATOR MALTESE: Yes. Mr.
8 President, I certainly do.
9 SENATOR WALDON: Do you in that
10 regard feel that one should be allowed to say
11 whatever he or she wishes just so long as it
12 does not impair and/or interfere with the rights
13 of other Americans?
14 SENATOR MALTESE: Mr. President.
15 Basically that would seem to cover my position.
16 SENATOR WALDON: By the way, Mr.
17 President, alert Senator Maltese there's no trap
18 in my question. I have a very -
19 SENATOR MALTESE: Mr. President.
20 I thought Senator Waldon was going to talk about
21 the access bill to abortion clinics.
22 ACTING PRESIDENT DeFRANCISCO:
23 Well, be that as it may.
835
1 Senator Waldon.
2 SENATOR WALDON: Thank you very
3 much, Mr. President. Senator Maltese is being
4 very creative in his imagination today. I'm not
5 barking along that trail.
6 If I may continue, Mr.
7 President. If the Senator will continue to
8 yield? Senator Maltese, were you in the
9 military?
10 SENATOR MALTESE: Mr. President.
11 Yes, I was. I was a Marine Reservist, and
12 subsequent to that served in the United States
13 Army where I rose to the lofty rank of corporal.
14 ACTING PRESIDENT DeFRANCISCO:
15 Senator Waldon.
16 SENATOR WALDON: As one corporal
17 to another, Mr. President, if I may continue.
18 In your time in the service, Senator Maltese,
19 were you on occasion in parades, military
20 parades?
21 ACTING PRESIDENT DeFRANCISCO:
22 Senator Maltese.
23 SENATOR MALTESE: Mr. President.
836
1 I appreciate Senator Waldon giving us the
2 opportunity to engage in this bout of
3 nostalgia. Yes, I was in many parades and
4 enjoyed all of them.
5 SENATOR WALDON: And I recall
6 from my days in the military that when we were
7 either in full dress or fatigues but in parade
8 formation, whether it be the battalion level,
9 company level, or even regimental level, we were
10 often led by the guidon and the guidon had a
11 flag. My question, Mr. President, if I may
12 continue to the learned Senator is, does your
13 recollection recall such instances of parades
14 and following the flag of this country?
15 ACTING PRESIDENT DeFRANCISCO:
16 Senator Maltese.
17 SENATOR MALTESE: Yes, Mr.
18 President, I recall them and I know in many
19 instances we had to follow these instructions
20 because many of us were not as familiar with the
21 rules concerning the flag since we didn't
22 receive the instruction in our schools.
23 ACTING PRESIDENT DeFRANCISCO:
837
1 Senator Waldon.
2 SENATOR WALDON: Thank you very
3 much, Mr. President, and I appreciate the
4 Senator's response.
5 Senator Maltese, we are coming to
6 the end of my inquiry. Can you recall the
7 feeling, the sense of feeling that you had when
8 you were in those formations; and if you can
9 recall such, would you briefly share them with
10 us, meaning your emotional state at that time.
11 ACTING PRESIDENT DeFRANCISCO:
12 Senator Maltese.
13 SENATOR MALTESE: Mr. President.
14 You know, since we are engaged in a debate and
15 referring to nostalgia, I grew up in a different
16 time. I was born in 1932 and was just 10 years
17 old on the date that Pearl Harbor was attacked,
18 and we had, I think, different instruction in
19 the home than many of our children have the
20 opportunity to receive today, and the atmosphere
21 and the spirit that permeated the greater
22 American spirit was much different than it was
23 today. People would not have dared at that time
838
1 to show disrespect for the flag in public
2 arenas, sports stadiums. They have would have
3 been ridden out of town on a rail. That was a
4 different time.
5 Yes, Senator, I had a great
6 feeling of pride. I know that many of my
7 colleagues and comrades in arms had a great
8 feeling of pride as did all the veterans of
9 prior wars, and I know that feeling of pride is
10 shared by many that serve today who did not have
11 the opportunity to serve, but I do think that
12 it's worthy of note that it was a different time
13 and a different place and a somewhat different
14 country, and what I am seeking to do with this
15 legislation is restore some of that pride of
16 country, pride in our flag as a symbol of that
17 country.
18 ACTING PRESIDENT DeFRANCISCO:
19 Senator Waldon.
20 SENATOR WALDON: Mr. President.
21 Thank you very much, Senator Maltese. Mr.
22 President, if I may, on the bill.
23 I, too, was extremely proud on
839
1 those occasions where I marched behind the
2 flag. I was in the honor guard in France and
3 had the opportunity to march not only with U.S.
4 Military personnel but with personnel from
5 France, from Great Britain, from Canada, and
6 those moments in full dress, marching into towns
7 like Orleans or Nancy, even on occasion Verdun,
8 with thousands of troops in formation, was an
9 exhilarating experience.
10 I was proud to be part of the
11 U.S. Army. I was proud to be a part of our
12 honor guard. I don't want to offend anyone with
13 what I'm saying and people have the right to
14 believe whatever they believe, but I do believe
15 that nowadays in America there is a callousness
16 toward what it means to be an American, and I'm
17 troubled by that.
18 I don't know if what you are
19 attempting to do, Senator Maltese, will
20 accomplish your goal or will help us in the
21 journey to inspire people to feel better about
22 this country, the greatest country on the
23 earth. I hope that it will have some saving
840
1 grace.
2 I will support the bill simply
3 because I see too many young people doing things
4 not just about the flag but in general about
5 what it means to be patriotic and what it means
6 to be an American that cause me some concern and
7 cause me some pain actually, because despite the
8 fact that my people came here differently in
9 terms of passage than many of my colleagues in
10 this institution, we have paid our debt to
11 America. We have spilled our blood on foreign
12 soil so that this flag could fly high and with
13 pride, and I hope that the younger people of
14 this nation will become more sensitized to truly
15 what it means to be a part of the greatest
16 nation on earth.
17 I hope that the teachers will
18 understand that maybe they have a greater role
19 to play in that regard. I hope that the parents
20 will understand that maybe they have a greater
21 role to play in that regard. The threat of
22 Communist Russia is not upon us as it was in the
23 past few decades but there are threats out there
841
1 which could undermine this nation.
2 I believe that what you are doing
3 is commendable. I support it, and I sincerely
4 hope that all of us will learn to feel a little
5 bit better about this country, which happens to
6 be the greatest nation on earth.
7 Thank you, Mr. President.
8 ACTING PRESIDENT DeFRANCISCO:
9 Please read the last section.
10 THE SECRETARY: Section 2. This
11 act shall take effect on the 180th day after it
12 shall have become a law.
13 ACTING PRESIDENT DeFRANCISCO:
14 Call the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Ayes 57. Nays
17 1. Senator Montgomery recorded in the
18 negative.
19 ACTING PRESIDENT DeFRANCISCO:
20 The bill is passed.
21 Secretary will read.
22 THE SECRETARY: Calendar Number
23 54, by Senator DiCarlo, Senate Bill 500, an act
842
1 to amend the Criminal Procedure Law and the
2 Penal Law in relation to felony sex offenses.
3 SENATOR GOLD: Explanation.
4 ACTING PRESIDENT DeFRANCISCO: An
5 explanation is asked for.
6 Senator DiCarlo.
7 SENATOR DiCARLO: Yes, Senator
8 Gold. My bill does a number of things. One, it
9 limits plea bargaining for sex offenders and
10 requires that the lowest they can plead to is to
11 a sex felony. It also does a separate
12 sentencing structure, increases minimum terms,
13 mandates that during -- periods of probation and
14 parole be extended and it also is mandatory post
15 prison treatment for sex offenders.
16 ACTING PRESIDENT DeFRANCISCO:
17 Senator Gold.
18 SENATOR GOLD: Yes, will Senator
19 yield to a question?
20 SENATOR DiCARLO: Yes.
21 SENATOR GOLD: Senator, as I
22 indicated in the Codes Committee, I don't have a
23 problem with what you do. I have a problem with
843
1 what you don't do; and, Senator, am I right, the
2 bill does not provide for any kind of a
3 treatment plan for people while they are in
4 prison? Is that true or is that not true.
5 SENATOR DiCARLO: That's correct.
6 SENATOR GOLD: Well, could you
7 explain to us, Senator, why you decided not to
8 include that in the bill?
9 SENATOR DiCARLO: Well, firstly,
10 sex offenders cannot be cured, as I have stated
11 in the past. Their behavior can only be curbed,
12 and that's if we're lucky.
13 SENATOR GOLD: That's what?
14 SENATOR DiCARLO: That's if we're
15 lucky, that their behavior is curbed. My bill
16 wants to protect people on the outside. It is
17 my belief that you can have all the treatment
18 programs that you want in prison; once they are
19 out if they don't have those same treatments,
20 they will go back to the same as they were
21 before.
22 My bill wants to keep them in
23 prison for longer periods of time and while out
844
1 have longer periods of parole and probation
2 while they must get treatment because that is
3 the only time I believe it is effective.
4 So my bill does not talk about
5 treatment while they're in prison, but I would
6 bring to your attention that already in New York
7 State we have 14 prisons that do have sex
8 offender programs, with 24 counseling programs,
9 already instituted, five maximum security prison
10 facilities provide counseling groups, at Attica,
11 Auburn, Elmira, Green Haven and Sing Sing; seven
12 medium security prison facilities provide
13 counseling groups at Arthur Kill, Cayuga,
14 Collins, Gouverneur, Midstate, Orleans, and
15 Watertown. At Groveland Correctional Facility,
16 Veterans Residential Therapeutic Programs has a
17 sex offender program that provides intensive
18 counseling for sex offenders.
19 We already have in New York State
20 a number of programs for sex offenders, for sex
21 offenders who wish to be in counseling. So that
22 already exists. I do not think what you are
23 asking for has a place in my legislation.
845
1 SENATOR GOLD: Will Senator yield
2 to another question?
3 SENATOR DiCARLO: Sure.
4 SENATOR GOLD: Senator, you said
5 in your belief there is no cure but it can be
6 curbed. I mean, now, is that belief based upon
7 any particular study or studies or information?
8 SENATOR DiCARLO: I believe that
9 my predecessor, Senator Mega, held hearings on
10 this back in 1989, where the findings were that
11 from most authorities that they can not be
12 cured, sex offenders cannot be cured, so that's
13 based on hearings and studies that I have look
14 into.
15 ACTING PRESIDENT DeFRANCISCO:
16 Senator Gold.
17 SENATOR GOLD: Senator yield to
18 another question?
19 SENATOR DiCARLO: Yes.
20 SENATOR GOLD: Senator, what
21 about states like New Jersey which actually have
22 the programs? What is their experience?
23 SENATOR DiCARLO: You can tell
846
1 me. You tell me what their experience is in New
2 Jersey.
3 ACTING PRESIDENT DeFRANCISCO:
4 Senator DiCarlo, do you wish to respond to that
5 question?
6 SENATOR DiCARLO: My response
7 would be I'm not sure what New Jersey has
8 found. Maybe you can enlighten me.
9 SENATOR GOLD: Well, Senator, if
10 you will yield to another question?
11 SENATOR DiCARLO: Yes, I will.
12 SENATOR GOLD: Do you know what
13 any of the states have found that actually have
14 a formal program for sex offenders?
15 SENATOR DiCARLO: Yes, from a New
16 York Times article. Those people who want to be
17 treated and want help sometimes can get help
18 with these programs while in prison, yes.
19 SENATOR GOLD: Will Senator yield
20 to a question?
21 SENATOR DiCARLO: Yes.
22 SENATOR GOLD: Senator, I'm not
23 interested in what some New York Times reporter
847
1 said. What I'm interested in -- you are
2 sponsoring legislation which I'm going to vote
3 for. I mean I don't have a problem.
4 As a matter of fact, as I have
5 said so many times, I'm never amazed when a
6 so-called Conservative misinterprets what a
7 so-called Liberal is. I mean from my point of
8 view, people have rights; and then after the
9 rights are used, you have a trial. You go to
10 jail, "directly to jail, don't pass go, don't
11 collect $200". No problem with that.
12 I'm asking you, Senator, as the
13 person who drafted this legislation and who says
14 that you don't think that a program in prisons
15 can help, what's your experience from having
16 examined those states like New Jersey and others
17 that do have the programs. What has their
18 experience told you?
19 SENATOR DiCARLO: Their
20 experience from what I have seen is that if you
21 have treatment within the prison once they are
22 out, if they do not continue treatment, the
23 treatment while in prison was worthless.
848
1 SENATOR GOLD: And if you'll
2 yield to another question?
3 SENATOR DiCARLO: Yes.
4 SENATOR GOLD: That's what I'm
5 trying to get at so I can learn. Which of the
6 programs that you have investigated gave you
7 that as a result?
8 SENATOR DiCARLO: Testimony from
9 experts in a half a dozen states, which I will
10 gladly forward to your office so that you can
11 also look at what these experts have told us.
12 SENATOR GOLD: All right. Mr.
13 President. On the bill.
14 ACTING PRESIDENT DeFRANCISCO:
15 Senator Gold.
16 SENATOR GOLD: One of the issues
17 that we raised in the Codes Committee, and I'm
18 interested to see how the rest of the session
19 goes, is whether or not there is not some
20 compromise position between the way we opt in
21 New York State and the way the Congress
22 operates.
23 Congress, as you probably know,
849
1 has one bill. It's the Crime Bill of 1993, or
2 whatever, and they take care of everything. We
3 on the other hand deal in pen certificates, so
4 every single paragraph idea you are going to
5 change gets a pen certificate. Maybe there is
6 something in the middle that works.
7 And if we're dealing with the
8 subject of sex offenders, Senator DiCarlo has a
9 bill which is pretty comprehensive and I admire
10 the work he's done, but it does miss a step, and
11 I'm offering an amendment. I waive the reading
12 and ask for the opportunity to explain it.
13 The amendment is an amendment
14 which, by the way, Senator DiCarlo, I'm not only
15 urging upon you and upon former Senator Pataki
16 but I've also urged it upon Governor Cuomo and,
17 unfortunately, they didn't buy it. States like
18 New Jersey set up programs, real programs. They
19 didn't just bring in a sex counselor and say,
20 "If anybody's got a sex problem, come talk once
21 a week." They had a program, and the program
22 was aimed at dealing with sex offenders who are
23 different than other kinds of criminals.
850
1 Now, when I say they are
2 different, it doesn't mean that they are
3 better. They are just different. The programs
4 run, the so-called Mahwah program in New Jersey
5 and others, have shown that you can, in fact,
6 decrease recidivism if these people are treated
7 while they are in prison.
8 The general history of sex
9 offenders as Senator Skelos knows is that while
10 they are in prison they may be excellent,
11 excellent prisoners, and the day they get out
12 they commit another crime because one thing had
13 nothing to do with the other, but those people
14 who have been able to receive some real
15 treatment in prison, the recidivism rate is
16 substantially altered.
17 And what does that mean? That
18 means safety in the streets, that's what it
19 means. There is one reaction that just says
20 let's tell everybody who they are. New Jersey
21 is trying that, and let's do this and let's do
22 that, but this is simple. This says you've got
23 somebody in prison for a period of time. Under
851
1 your bill, Senator DiCarlo, that period of time
2 will be longer and that's fine with me, but do
3 something with them. Do something with them
4 that will help your people and cut recidivism,
5 and it is worth a try.
6 It's worth a try based upon
7 experience; and when somebody says, "Well, you
8 can't cure, you can only curb," well, if you
9 curb it and it's under control -- I mean there
10 are people with different kinds of illness.
11 There are people who can not handle alcohol
12 ever, so they handle it. We have people who go
13 to AA and live wonderful lives, terrific lives,
14 and you can say, "Well, they're not really
15 cured; they're curbed." But what's the
16 difference? Every day, they are functioning
17 wonderful members of society.
18 So if you can have a program that
19 will take these people and change their ways,
20 even monitor them after prison as you are
21 suggesting, I think we owe it to people. We owe
22 it to the people we represent, and it is worth a
23 try, and my amendment does exactly that. It
852
1 would set up a program in the prisons for people
2 convicted of sex offenses to try to cure or
3 curb, or whatever you call it, that conduct so
4 that society is safer the day they get out.
5 ACTING PRESIDENT DeFRANCISCO:
6 There is an amendment.
7 Senator Volker.
8 SENATOR VOLKER: Mr. President.
9 Let me just first of all say that we commend
10 Senator DiCarlo for sponsoring this bill; and as
11 a discussion as we discussed in the Codes
12 Committee and Senator Gold was part of that
13 discussion, this is an issue, the issue of sex
14 crimes, that is an issue that has a great body
15 of opinion on both sides. There certainly are
16 some people -- and I don't know if I would go as
17 far as you have, Senator Gold, to say that the
18 New Jersey experience has yet shown that there
19 is long-term information that we can necessarily
20 affect a great deal, a great many sex offenders,
21 but I think probably, as I understand it, it has
22 shown the possibility that we may be able to
23 have some impact on these people, and that is
853
1 one reason why a number of states have been
2 looking at the so-called sexual predator
3 legislation, which I have introduced last year
4 and that we are going to work on and as we
5 talked in the committee and have talked with
6 Senator DiCarlo and with Senator Skelos and also
7 with you and some other people about the
8 possibility of several things.
9 Number 1, certainly, that we can
10 all talk about this issue as this session goes
11 on, the possibility that we might hold further
12 hearings on the issues that are involved here.
13 So by no means is Senator DiCarlo, I think,
14 saying or I think is our committee saying that
15 this is the final word on what's going to happen
16 in dealing with this issue.
17 It's very complex. As you well
18 know, we've had bills on this floor dealing with
19 rape for the last several years that we have not
20 been able to compromise with the Assembly. My
21 feeling is that this is the year I would hope
22 that we will be able to do something more with
23 that and at the same time deal with the issue of
854
1 sexual predators which is a very, extremely
2 serious issue.
3 As somebody who came from a
4 background, as you well know, where I
5 investigated and was on a task force that lasted
6 for years that involved these very issues, it is
7 something that I feel very strongly about, but
8 let me say that nobody is saying in February of
9 this year that this entire issue is -- has been
10 decided yet, and I don't think Senator DiCarlo
11 is saying that.
12 I think what Senator DiCarlo is
13 saying is that he has a bill here that he feels
14 deals with the issue as far as he feels
15 comfortable with; and it seems to me, though,
16 that I would just say to you that we will
17 certainly as a committee look further at this
18 issue before this year is out; and as I said to
19 you in the committee before, I would be happy to
20 discuss it with you and the other members of
21 this house who are interested in it.
22 ACTING PRESIDENT DeFRANCISCO:
23 Senator Paterson.
855
1 SENATOR PATERSON: Mr.
2 President. This issue of sexual abuse and
3 sexual offenses is one that evokes often a
4 number of knee-jerk reactions and a lot of
5 conform resections, but what I think this
6 amendment that Senator Gold offers us is a real
7 alternate and one that certainly has a basis in
8 program study that is included in this amendment
9 the Mahwah program in New Jersey, one at Avadale
10 also in New Jersey. There are programs right
11 here in New York State, one of which was founded
12 by one of the members sitting here in this
13 chamber, Senator Hoffmann, that have
14 demonstrated that there are some results that
15 would indicate that treating sexual offenders at
16 a time when they are incarcerated can decrease
17 the recidivism when they come out.
18 One of the things that we have to
19 understand is that there are different types of
20 sexual offenses and different types of results.
21 Those who are defined as pedophiles, there
22 haven't been results that would be as effective
23 as we would like; however, in rape cases
856
1 treating those particular cases has had some
2 results when there is some kind of programmatic
3 response where there is an actual structure as
4 is done in other states and as is suggested in
5 this amendment.
6 So I am happy that Senator Gold
7 has introduced this amendment, and I hope it
8 will pass.
9 ACTING PRESIDENT DeFRANCISCO:
10 Senator Stavisky.
11 SENATOR STAVISKY: Mr.
12 President. I notice the roll call in 1994. An
13 identical bill, Senate 6380, passed the Senate
14 by a vote of 57 to nothing. And I think that
15 what is occurring here should be a basis for
16 reflection on both sides of the aisle. You will
17 notice there were no opponents on the Democratic
18 side to the concept. Very often, and you will
19 notice it day after day as the session evolves
20 that Democrats regularly vote for Republican
21 bills, but they are the only bills that normally
22 come out of committee, and I ask you not to view
23 every idea that comes from this side of the
857
1 aisle as a hostile amendment.
2 Senator Gold has made a very
3 constructive suggestion. It is not intended to
4 embarrass the sponsor of this bill. It is not
5 intended to weaken the purpose of this bill. It
6 is intended to make the legislative process in
7 this chamber fair and productive, and I would
8 urge all of my colleagues, not just on this bill
9 but on other bills, not to get up tight when
10 there is a constructive amendment as Senator
11 Gold has proposed and the feeling that by a
12 party vote it has to be voted down.
13 I'm pleased by Senator Volker's
14 attitude. I think it's an enlightened attitude,
15 and I hope that the sponsor of this bill and the
16 sponsor of other pieces of legislation will take
17 heart from what has happened in this
18 discussion. When Senator Emanuel Gold comes
19 forward with a constructive suggestion that
20 would improve the way that the original bill
21 functions, then welcome it. Don't turn it off
22 on a partisan party vote, "All those in favor
23 signify by saying aye; all those opposed say
858
1 no," and then the amendment dies without even a
2 record, and there may even be a bill in
3 committee that was not even given a chance to
4 breathe because it was not even taken up on the
5 committee's agenda. It happens too often in
6 this chamber, and I think the time has come that
7 we should, on both sides of the aisle, reach out
8 to each other and try to improve legislation not
9 in a vindictive or partisan manner but in a
10 sensible way.
11 And with that having been said, I
12 would hope that the sponsor would take that
13 attitude towards what Emanuel Gold has done here
14 today and embrace the idea. There may be good
15 ideas coming from this side of the carpet. The
16 carpet does not necessarily separate dummies
17 from geniuses. There may be both on both sides
18 of the carpet.
19 I support the amendment.
20 ACTING PRESIDENT DeFRANCISCO:
21 Senator Hoffmann.
22 SENATOR HOFFMANN: Thank you, Mr.
23 President. Would Senator DiCarlo yield for a
859
1 question, please?
2 ACTING PRESIDENT DeFRANCISCO:
3 Senator DiCarlo.
4 SENATOR HOFFMANN: I note in the
5 sponsor's memo, there is a reference to
6 requiring mandating a separate sentencing
7 structure for sex felons including extended
8 periods of probation and parole with required
9 post-incarceration participation in approved sex
10 offender treatment programs.
11 The question I would ask, Senator
12 DiCarlo, is for a definition of approved sex
13 offender treatment programs. Approval by whom,
14 programs run by whom?
15 ACTING PRESIDENT DeFRANCISCO:
16 Senator DiCarlo.
17 SENATOR DiCARLO: I believe that
18 would be set by the court at sentencing.
19 SENATOR HOFFMANN: By the court?
20 SENATOR DiCARLO: Yes.
21 SENATOR HOFFMANN: And would
22 Senator DiCarlo yield for a further question?
23 SENATOR DiCARLO: Yes.
860
1 SENATOR HOFFMANN: Is it safe to
2 assume that you are supporting the concept of
3 convicted sex offenders on parole for the
4 purpose of receiving treatment?
5 ACTING PRESIDENT DeFRANCISCO:
6 Senator DiCarlo.
7 SENATOR DiCARLO: If I had within
8 my power to keep them in prison, most of them,
9 until the last breath leaves their body, I
10 would. But in the present conditions in this
11 state, the legislation I put together is a bill
12 which keeps them in prison longer and because
13 they must be released under our present laws at
14 some point, we mandate that they be treated; and
15 if they do not go through treatment, they are
16 returned to prison and out of society if that
17 answers your question.
18 SENATOR HOFFMANN: Would Senator
19 DiCarlo yield for one further question?
20 SENATOR DiCARLO: Yes.
21 SENATOR HOFFMANN: I wanted to
22 make sure I understood you correctly. Did you
23 say there are voluntary programs within New York
861
1 State's correctional system at this point?
2 SENATOR DiCARLO: That's my
3 understanding, yes.
4 SENATOR HOFFMANN: That there are
5 only voluntary programs?
6 SENATOR DiCARLO: Voluntary
7 programs.
8 SENATOR HOFFMANN: Thank you,
9 Senator DiCarlo.
10 On the bill, Mr. President. This
11 is one of those issues that sometimes brings out
12 the best and the worst in people and it makes
13 every one squeamish, and I have seen the history
14 of this issue over the last few years in this
15 chamber, and I must admit that the issue makes
16 me less squeamish than does the action by some
17 people who would go out with a less than fully
18 developed concept in a means to satisfy the
19 public appetite that we do something with
20 dangerous rapists and pedophiles, and I don't
21 mean to criticize Senator DiCarlo because I
22 think his intentions are very good, and it's a
23 very long, complicated sponsor's memo that
862
1 conveys a great deal of information and a
2 considerable amount of thought on his part.
3 I do wish we had had an
4 opportunity to discuss the issue a little bit
5 because I have put in a fair amount of time on
6 this over the years. But as Senator Stavisky
7 just pointed out, discussion across the aisle
8 doesn't happen very often in this chamber; and
9 for that not to happen on an issue like this, I
10 think is particularly sad.
11 So I'm just going to share with
12 you some of the facts as I know them in
13 supporting Senator Gold's amendment today, and I
14 would also concur with what Senator Stavisky
15 said in offering that we work together, and I
16 would like to reference something Senator Volker
17 said. I sponsored a bill last year dealing with
18 predicate sex felons. It's modeled very much on
19 the Washington state bill that would require
20 civil commitment for those sex offenders who
21 having served their full sentence in the
22 criminal justice arena, having then been judged
23 by a medical review to still be a clear and
863
1 present danger to society would be recommitted
2 under civil commitment. The law as it exists
3 now in Washington State has withstood the test
4 of the Supreme Court. The Supreme Court of the
5 United States refused to hear it; therefore,
6 upholding it.
7 And when I introduced that bill
8 and offered it to co-sponsorship to every member
9 of this house, I received no support on the
10 other side of the aisle. I will be very
11 intrigued to see what happens if an identical
12 bill or a bill identical in concept but with
13 Republican prime sponsorship suddenly receives
14 overwhelming support. What issue of
15 enlightenment occurred between last year and
16 this year between last session and this session
17 that would somehow make the idea noteworthy
18 under somebody else's sponsorship but not under
19 the sponsorship of my name.
20 I would be delighted, Senator
21 Volker, if you are introducing a bill that does
22 what my bill last year did, to join you in
23 co-sponsorship if that is a way of making that
864
1 one happen.
2 But let me just explain what has
3 happened in New York State over the last few
4 years on the issue of sex offenders and
5 incarceration. The Department of Corrections
6 regularly asks the Legislature for increases in
7 programmatic aid for the treatment of drug
8 users, various other types of addictive behavior
9 and demonstrated with very carefully analyzed
10 graphs and charts the statistical increase in
11 those felons in New York State prisons who are
12 serving time for drug offenses and, therefore,
13 required many million dollars in additional
14 treatment money to treat these people.
15 I did a little examination of my
16 own at the same time that we were looking at
17 these vast increases in funding to drug
18 offenders and I saw that while the charts showed
19 the curve for drug offenders going up like this,
20 only slightly below drug offenders we had sex
21 offenders on a marked increase through the mid
22 and late '80s, and yet the Department of
23 Corrections asked for no funding for treatment
865
1 for sex offenders.
2 I was aware that other states did
3 treat sex offenders and regularly solicited
4 legislatures in other states to expand those
5 programs, and I asked a couple of times during
6 budget hearings the then Commissioner of
7 Corrections, Tom Coughlin, why New York State
8 was not making a similar request of this
9 Legislature. I asked that during the fiscal
10 hearings that we regularly hold over in the
11 LOB. The first time I asked Commissioner
12 Coughlin this question was, I think, in 1986.
13 It might have been in 1987. But he indicated he
14 didn't believe these programs ever worked, and
15 he wasn't going to bother with them. The second
16 time I asked him he said there were a few and we
17 didn't know the results yet. I don't know
18 whether it was the second or the third time, but
19 we did have some dialogue on this subject, and
20 during that time, I became a little better
21 educated on the subject, so I had a few
22 statistics that I used to increase his level of
23 interest and, finally, we concluded our
866
1 discussion during the fiscal hearing with
2 Commissioner Coughlin saying to me sometime in
3 the late '80s, "I don't believe these programs
4 work, but you show me some that do and I'll try
5 them."
6 I took that challenge very
7 seriously to heart and sought the assistance of
8 the Director of Criminal Justice Services at
9 that time, John Poklemba, to begin a major
10 national study on existing sex offender
11 treatment programs. I went to the trouble to
12 visit several of them myself, visiting Avadale
13 in New Jersey which has been mentioned a couple
14 of times. It is a maximum facility that is
15 solely used to house sex offenders. They are
16 totally segregated from the rest of the inmate
17 population in that state. They are housed in
18 one facility and there is mandated treatment.
19 On the other end of the spectrum,
20 I saw in Washington State medium and minimum as
21 well as maximum facilities that have mandatory
22 programs and voluntary programs where sex
23 offenders are mainstreamed but provided some
867
1 segregated sex offender treatment, and I also
2 saw the programs that operate in the state of
3 Minnesota under the commissionership there of a
4 gentleman named Orville Pung, who is the
5 nation's longest ranking corrections
6 commissioner at this point in time and was at
7 that point in time as well, who also has the
8 distinction of holding the dual responsibility
9 of not only correction commssioner but is also
10 commissioner of parole, one in the same
11 department in that state, providing an added
12 advantage of maintaining control over sex
13 offenders as well as other inmates from the time
14 of sentencing until the time of the final
15 release from parole however many years later.
16 That element of control over their lives and the
17 ability to insist upon a treatment program from
18 day one all the way through incarceration and
19 knowing what would happen post-incarceration was
20 an apparent advantage that is borne out by the
21 statistics, because that state, the state of
22 Minnesota, is the state that has the very best
23 statistical evidence that sex offender treatment
868
1 can work.
2 Now, what do we mean by work?
3 The phrase cured is never used in
4 discussing sex offenders among the sex offender
5 treatment professionals. There is an alliance
6 of sex offender treatment professionals. In
7 fact, they held a conference here in Albany not
8 too many years ago, bringing in people
9 internationally, and I would refer any of my
10 colleagues who are interested in this subject to
11 that group, because they have excellent data and
12 can provide a lot of very valuable information
13 as to how this whole concept works.
14 So we don't talk about curing any
15 more than you talk about curing alcoholism or
16 addictive behavior for a substance. What you
17 discuss is behavior modification and the ability
18 to control behavior upon release, and sex
19 offenders learn while incarcerated, number 1,
20 what victim empathy is. They will go through a
21 process where they begin to understand, some of
22 them -- some of them may never understand. They
23 begin to understand what it was that happened
869
1 with the victim and begin to learn a little bit
2 about their own motivation. They also begin to
3 understand what it is about themselves that
4 causes them to act out and, most importantly,
5 what the warning signs are, what behaviorial
6 changes they undergo that could be identifiable
7 either to them as individuals or to other people
8 such as parole officers, members of their
9 community and members of their family, that
10 would help monitor their behavior upon release
11 to provide a higher level of safety for the
12 general public.
13 I think it's safe to say that
14 most of us when we approach this issue are not
15 doing it out of this deep seated sense of
16 compassion for rapists and pedophiles. We're
17 doing it out of a desire to protect the safety
18 of citizens in New York State, the women and
19 children who will otherwise be subjected to the
20 violent crime of rape and lesser crimes of
21 molestation, which can be avoided if sex
22 offenders are afforded some kind of treatment
23 that will allow them to control their behavior
870
1 and assist others in making sure that they
2 control their behavior.
3 So the very complex issue is one
4 that can't be addressed in a single law,
5 mandating treatment in nonexisting treatment
6 programs. To correct a couple of the
7 inaccuracies within this bill, I will just point
8 out, number 1, that the courts do not presently
9 have any system for approval of sex offender
10 treatment in New York State. There is no
11 standard for approved sex offender treatment.
12 Number 2, there is not a sufficient number of
13 treatment programs in New York State to which
14 all of the convicted sex offenders could
15 currently be released. There would have to be a
16 sizeable appropriation in a bill to actually
17 make that part of one that could be implemented,
18 although I think it's a worthy goal and I, for
19 one, would support an appropriation that would
20 create such a program and would require that
21 upon release it be made part of a condition of
22 parole.
23 And rather than give Senator
871
1 DiCarlo a hard time for having indicated that he
2 supports the notion of parole for some sex
3 offenders, and I applaud him for the very
4 diplomatic way in which he suppressed it. I
5 want to say that I recognized after having
6 studied the issue through these many years what
7 the sex offender treatment professionals have
8 come to recognize and what Orville Pung,
9 Commissioner of Minnesota, has stated, that
10 unless you have a hook in them when you release
11 them, you have no means of controlling whether
12 they will be in a program or not.
13 So, unpleasant as it may be, it
14 is absolutely essential that you have some form
15 of parole for sex offenders so that you can
16 force them to continue the treatment upon
17 release. Otherwise, if they max out, as they
18 generally do at Avadale in New Jersey, they max
19 out. Then they go into society, and there is no
20 extended treatment required at that time.
21 ACTING PRESIDENT DeFRANCISCO:
22 Senator Mendez, why do you rise?
23 SENATOR MENDEZ: I wonder if
872
1 Senator Hoffmann would yield for a question?
2 ACTING PRESIDENT DeFRANCISCO:
3 Senator Hoffman, will you -
4 SENATOR HOFFMANN: I will yield
5 briefly, Senator Mendez, but I prefer to wait.
6 SENATOR MENDEZ: Of those studies
7 that you have reviewed, could you tell me any
8 specific study that states what was the number
9 of sex offenders that received the treatment,
10 and -
11 SENATOR HOFFMANN: Yes, Senator
12 Mendez. I'm anticipating your question, and
13 I'll get to that momentarily. Thank you.
14 SENATOR MENDEZ: There's a number
15 of -
16 ACTING PRESIDENT DeFRANCISCO:
17 Excuse me a minute. Could you finish your
18 question, please.
19 SENATOR MENDEZ: I'm trying to
20 finish it. I'm not going to take much -- I -
21 I'm on your side. I know how you feel about
22 it -
23 SENATOR HOFFMANN: I know. I
873
1 know the statistics -
2 ACTING PRESIDENT DeFRANCISCO:
3 Senator Hoffmann, will you please let her -
4 SENATOR MENDEZ: My question is
5 -- everybody here is talking about how sex
6 offenders could curb that offensive behavior.
7 My question is, nobody has given specific
8 details as to which specific study, how much
9 subjects were studied, what degree of recidivism
10 was found, and that's -- and I want to know if
11 there is any specific study that anybody could
12 cite here. Do you have any?
13 ACTING PRESIDENT DeFRANCISCO:
14 Senator Hoffmann.
15 SENATOR HOFFMANN: Thank you, Mr.
16 President. To respond to Senator Mendez, I am
17 getting to that point, and I think you will be
18 pleased to know that I have some of those
19 statistics, Senator Mendez, but I would like to
20 bring them up in my own time after I explain a
21 few more aspects of this bill. If you would
22 just bear with me and be patient, I think I can
23 answer your question satisfactorily.
874
1 To get back to the issue of
2 parole, it is essential that we have an
3 integrated program that requires mandated sex
4 offender treatment as well as voluntary
5 treatment in prisons and to accomplish that,
6 after having gone through this exhaustive study
7 with DCJS and my own office and having visited
8 several of these facilities over a period of
9 time, I embarked upon the creation of a program
10 that would be a pilot program in New York State
11 and the Department of Corrections. I
12 implemented this at Oneida Correctional Facility
13 in Rome.
14 And unlike Senator DiCarlo's
15 assertion that they're all voluntary programs, I
16 want to make it very clear that this is a
17 mandatory program to which convicted sex
18 offenders in New York State -- not all of them,
19 but all of them who are sentenced to a
20 five-prison hub in the Mohawk Valley in New York
21 State, all of them initially are required to
22 attend and participate in segregated housing in
23 a sex offender treatment program. The minimum
875
1 period of time is six weeks. It is generally
2 considerably longer, several months, that the
3 mandatory component of the program is in place.
4 During this time, the sex
5 offenders conduct group discussions. They go
6 through an elaborate explanation of their crime,
7 their sentence. After standing and stating
8 their name, where they're from, what their crime
9 was, they then say they were guilty. Several of
10 them in every group that I have visited will
11 say, "And I'm not guilty," or "The bitch asked
12 for it," or something of that nature.
13 After a while, however, the
14 process of having been forced in that
15 environment to endure the daily discussions of
16 this criminal activity, combined with the
17 exposure to the whole victim empathy
18 professional modality creates a change in their
19 environment and they begin to communicate on an
20 entirely different level and they begin to
21 discuss what it was that motivated them to do it
22 and then, ultimately, after some period of time,
23 they begin to discuss what was wrong, and
876
1 finally, why they would like to not do that
2 again or why they would feel badly for somebody
3 if they did whatever it was they had done
4 before.
5 This change takes place in a
6 different period of time for different inmates,
7 and for some it will never take place, and the
8 urges that accompany the crimes that are
9 committed in many instances will never subside,
10 but there is still the potential for controlling
11 the urges for those men who will go through the
12 program for some period of time, years, and upon
13 release continue with regular treatment, so the
14 professionals say.
15 What do the statistics show? In
16 New York State it is much too soon to say
17 whether the pilot program at Oneida Correctional
18 Facility is going to reduce recidivism long
19 term. It's only a few years old. I would urge
20 any of my colleagues, you especially, Senator
21 DiCarlo, to please visit and see the program so
22 you have a better sense of how it works. Listen
23 to how these men and their very hard-working,
877
1 beleaguered counselors address this issue in a
2 Department of Corrections that is somewhat less
3 than supportive when contrasted to other states;
4 but in those states that have this well
5 structured, well-thought-out mandatory treatment
6 program and required parole treatment in
7 approved -- state sanctioned and approved
8 programs, all of which are missing in New York
9 State, in those states, there's statistical
10 results that show that it works.
11 And to address Senator Mendez'
12 question, the state of Minnesota is the one that
13 has compiled the best statistical analysis over
14 the longest period of time. For those inmates
15 who successfully stayed in the program while
16 they were incarcerated -- and many of them
17 washed out -- they start the program and then
18 they go through the mandatory part. After they
19 have been in the mandatory part, they literally
20 have to audition for the ongoing part which
21 takes place in the duration of their treatment.
22 If they are not sincerely working on their
23 abnormal behavior, then they are not going to
878
1 remain in the program; but for the ones that do,
2 and then continue in program upon release as
3 parolees, the ten-year post-release statistic
4 for recidivism is less than ten percent -- less
5 than ten percent of those sex offenders who
6 continued the program from incarceration through
7 parole in the state of Minnesota recidivate,
8 contrasting that with anywhere between 40 and 50
9 on a national average for all sex offenders, I
10 think is a remarkable figure.
11 If we could lower the recidivism
12 rate in New York State for sex offeners in
13 treatment at Oneida Correctional by only five
14 percent, if we could go down from 50 to 45
15 percent, we would spare, literally, thousands of
16 women and children the agony of a rape or a
17 molestation by those sex offenders. The figures
18 are just enormous. The potential to avoid a
19 crime is one of the most traumatic that we have
20 before us and, yet, to put it all together
21 requires sentencing changes; it requires parole
22 improvements.
23 We have now embarked upon a
879
1 program of dedicated case loads for parole
2 officers. I worked with Commissioner Russi a
3 few years ago and arranged for the National
4 Institute of Corrections to come in and do a
5 training program much like the one we did at
6 Oneida Correctional when we started the sex
7 offender treatment program there, and we now
8 have dedicated case loads for some parole
9 officers who now understand what the sex
10 offender treatment program works like, so for
11 those who can, as parolees, have the good
12 fortune of entering a program that meets some of
13 their needs, there is a parole officer who
14 understands it and has a better sense what the
15 warning signs are when a person may, in fact, be
16 getting close to the point of recidivism.
17 So I want to applaud Senator
18 DiCarlo for entering this area, and I would hope
19 that it is just the beginning of a long and very
20 fruitful journey in reducing the number of sex
21 crimes in New York State; but I would like very
22 much to applaud Senator Gold for introducing a
23 reasonable amendment, and I hope that we will
880
1 not be voting on the party line today to deny
2 the urgency of mandatory sex offender treatment
3 to those sex offenders who are incarcerated in
4 New York State.
5 Let's support the amendment as
6 well as the bill and then let's work toward a
7 better, more meaningful, comprehensive approach
8 to address this issue from start to finish.
9 ACTING PRESIDENT DeFRANCISCO:
10 Senator Mendez.
11 SENATOR MENDEZ: Mr. President,
12 yes, I rise in support of Senator Gold's
13 amendment. I suppose that the reason why I do
14 that is because, although I firmly believe that
15 there is nothing at this point in time that we
16 could ever do to -- to redeem or change the
17 behavior of a sex offender, especially a sex
18 offender that attacks children, so that at least
19 let's try out something.
20 I understand -- I'm not sure, but
21 I understand that that treatment effort that is
22 going on in Oneida, referred to by Senator
23 Hoffmann, I understand that it is mainly with
881
1 rapists. There is a difference, a big
2 difference between -- in my mind at least,
3 between a rapist -
4 SENATOR HOFFMANN: Will Senator
5 Mendez answer a question?
6 ACTING PRESIDENT DeFRANCISCO:
7 Excuse me, Senator Hoffmann. Why do you rise?
8 SENATOR HOFFMANN: I wonder if
9 Senator Mendez would yield for a question,
10 please.
11 ACTING PRESIDENT DeFRANCISCO:
12 Senator Mendez, would you yield for a question?
13 SENATOR MENDEZ: Yes, I will. I
14 think -- are you going to ask me -- you're going
15 to mention -- say your question.
16 ACTING PRESIDENT DeFRANCISCO:
17 Senator Hoffmann.
18 SENATOR HOFFMANN: I'm going to
19 ask Senator Mendez why it is that she thinks the
20 program at Oneida deals solely with rapists?
21 SENATOR MENDEZ: Because
22 Commissioner Coughlin once told me when I was
23 telling him what I really think should be done
882
1 with sex offenders; Commissioner Coughlin told
2 me that he had a program for rapists, and he
3 didn't mention any other sex offenders, Senator
4 Mendez. That's why.
5 ACTING PRESIDENT DeFRANCISCO:
6 Senator Hoffmann, you have another question?
7 SENATOR HOFFMANN: I would just
8 want to respond to Senator Mendez, to let her -
9 reassure Senator Mendez.
10 ACTING PRESIDENT DeFRANCISCO:
11 Excuse me. Senator Hoffmann, I think Senator
12 Mendez has the floor. If you have a -- you want
13 her to yield for a question?
14 SENATOR HOFFMANN: Senator
15 Mendez, if you would like to come to the Oneida
16 program in Rome, I think you would be pleasantly
17 surprised to find that there is the full
18 complement, the full garden variety of sex
19 offenders there. There are -- there are incest
20 fathers; there are child molesters, pedophiles
21 of several different varieties, as well as
22 rapists. In -- every sentenced sex offender who
23 goes into that facility goes into the program.
883
1 It is not by any means limited to rapists.
2 ACTING PRESIDENT DeFRANCISCO:
3 Senator Mendez.
4 SENATOR HOFFMANN: Would you like
5 to come? I would like that.
6 ACTING PRESIDENT DeFRANCISCO:
7 Excuse me, Senator Mendez. If you can find a
8 question within that, would you want to answer
9 that?
10 SENATOR MENDEZ: No, I am not
11 interested -
12 ACTING PRESIDENT DeFRANCISCO:
13 You have the floor. Excuse me. You have the
14 floor.
15 SENATOR MENDEZ: I am not
16 interested in visiting all those people there
17 that shouldn't be let out to hurt more people.
18 So anyhow -- but anyhow, Mr.
19 President, I am supporting, I said before, the
20 -- the amendment presented by Senator Gold,
21 just as a last resort, knowing in my mind at
22 this point I feel that there is nothing that we
23 can do.
884
1 I was mentioning before that -
2 that, in my mind, there is a difference between
3 rapists and child sexual offenders. Those that
4 rape infants, those that rape little boys and
5 little girls, those people at this point in
6 time, Mr. President, I don't think that there is
7 anything, no treatment at all foolproof that
8 would make it possible for that individual to
9 come out of jail with -- regardless of how many
10 treatments he had received in jail and monitored
11 outside, that person is not worth for society to
12 allow that person to come out and then have
13 another child suffer the horrendous, traumatic
14 experience.
15 So that in instances like this in
16 which we're dealing with sexual crimes, we
17 really have to -- have to think in terms of the
18 -- of the victims. Of course, we all want to
19 see everybody behave like angels, but not -
20 everybody do not behave like angels, saints in
21 the heaven; and these people, something has
22 occurred to them in their formative years,
23 something went wrong in their psycho-sexual
885
1 development that it's excited at that point and
2 it's -- and it's a danger to -- to let them
3 out.
4 I really want to also
5 congratulate Senator DiCarlo for his bill. It
6 doesn't go as far as it should because we always
7 keep forgetting that the main -- one of the main
8 functions of government is to provide safety for
9 women, children and its citizens, and as long as
10 we keep allowing courts to -- to have -- to have
11 plea bargaining whenever a sex offense occurs,
12 together with another -- as with an armed
13 robbery or whatever, then society has not been
14 paying enough attention to the tremendous
15 importance of people who prey on others to -- to
16 prey on others and commit these horrible
17 crimes.
18 We should seriously consider
19 eventually to do all kinds of experimentation
20 and treatment and therapies that we want to, we
21 feel we should try in an effort to see if
22 something could be done to, in fact, correct the
23 behavior of these people. I have no problems
886
1 with that, but we have to make certain that they
2 stay put where they are, because our primary
3 responsibility is to prevent one single child to
4 be raped in such violent fashions.
5 This morning, Mr. President, when
6 I woke up, I read in the -- I heard on the radio
7 that there is a man -- he probably was already
8 in jail -- with a van, a red van, going around
9 the schools trying to lure children, little
10 children into his van, and we don't have the
11 right to allow that sick person out of jail to
12 be doing that kind of thing. I hope he's caught
13 before another child pays a price that he
14 shouldn't be paying when we here must make the
15 law to ensure the safety of the citizens and
16 mainly the children should be our first
17 priority.
18 So, at least some sentencing is
19 going a little bit longer this time around,
20 Senator DiCarlo, but that is not the end of it.
21 We all should forget about everything else and
22 just deal with the issue. Yes, let's have a
23 thorough research. As far as I'm concerned, I'm
887
1 going to deal with that later because no
2 specific statistics at all have been given, no
3 detailed explanation of one of these studies
4 that have been conducted and by whom, how were
5 the subjects -- how were the conclusions
6 validated? Nothing. We don't have nothing to
7 make this statement that, in fact -- at least I
8 feel about this one point; maybe it's my
9 ignorance -- that the bulk of the literature
10 would prove that the recidivism of these people
11 is going to be so low, .001 percent, that maybe
12 -- maybe it could be justifiable to allow them
13 out in our society.
14 So, again, I support the -- the
15 amendments presented by Senator Gold. I don't
16 have big illusions about it, but -- and I
17 support the bill of Senator DiCarlo, but we have
18 a long way to go to ensure the safety of our
19 kids in our society.
20 ACTING PRESIDENT DeFRANCISCO:
21 Senator Abate.
22 SENATOR ABATE: I know a lot has
23 been said, and I will try to say it briefly.
888
1 On the bill, Senator DiCarlo.
2 I'm a newcomer to this chamber, but having spent
3 22 years in criminal justice, the communities
4 that we serve are begging for leadership from
5 this chamber, not just Band-Aid approaches, but
6 comprehensive, rational approaches to making our
7 streets safer. People are looking to the Senate
8 because the Senate traditionally is known for
9 the crime-fighting body of this Legislature, and
10 I would suggest that, although this bill gives
11 rigorous attention to needed vigorous
12 prosecution and sentencing remedies, that we're
13 fooling ourselves if we stop short of providing
14 treatment and prevention.
15 As a former correction
16 commissioner, as a former commissioner of
17 Probation, I have traveled throughout this
18 country and I have spoken to law enforcement
19 professionals. They will say, if you just do
20 two parts of the equation, law enforcement and
21 policing and not treatment and prevention, we
22 will continue to fail.
23 I think if we look at the reality
889
1 of the situation, there are thousands of sex
2 offenders on probation today throughout the
3 state. There are thousands on parole and there
4 are thousands in the Department of Corrections,
5 and it's not the issue that we can't do anything
6 or nothing we can do works. The issue is we
7 have never tried anything and we have never done
8 enough.
9 I know when I was a commissioner
10 of probation, we had a thousand sex offenders.
11 There was no money, and my experience was no
12 different from other departments of probation in
13 -- throughout the state. We had to develop
14 specialized case loads, and this is before state
15 Department of Corrections did it, before state
16 parole did it, because we knew how volatile this
17 population was and we tried to develop training
18 for the probation officers. In New York City,
19 there are a handful of programs, so to say that
20 this treatment does or does not work, to say
21 there's not a body of documentation, is really
22 saying we've never had this treatment. We must
23 have the treatment.
890
1 We also must have a research
2 component to evaluate what modalities work and
3 what doesn't work. The professionals throughout
4 the country talk about the need for continuum of
5 care. It must start in prison, in jail,
6 continue out in the community or start in
7 probation or end in parole; and the reason is,
8 is what Senator Hoffmann says. People don't
9 change overnight, particularly sex offenders.
10 They go through a long period of denial. They
11 separate their crime, their actions. They
12 depersonalize the victims. They don't think
13 what they did is wrong. It takes years for them
14 to come in touch with their rational being and
15 their emotional being. So it's important that
16 treatment not just be voluntary in correction.
17 It must be mandatory, and that continuum of
18 treatment must be as vigorous and intensive when
19 that offender reaches the community.
20 And there are all kinds of
21 treatment from counseling, the psycho-dymanics,
22 the biomedical modalities, all of this has to be
23 tried, but we need money and we need designed
891
1 programs that have to be developed. They just
2 don't exist, and Probation Departments and
3 Parole Departments have to deal with this
4 population, having offenders coming out of jails
5 and prisons without this kind of treatment.
6 And I think we all agree, as a
7 body, we need to make sure that sex offenders do
8 not offend again. We need to make our
9 communities safer and what I'm suggesting, the
10 only way to do it is through law enforcement and
11 treatment together, and we can make, I think, a
12 difference.
13 So I would suggest, Senator
14 DiCarlo, we can take a comprehensive view. If
15 we just do more -- putting more people in parole
16 and probation and prison without the treatment,
17 they will just continue to victimize our -- the
18 people we are served to protect. I would ask
19 you to reconsider, go back and let's have a
20 fuller discussion. Look what happened in
21 Massachusetts. They have done studies -
22 studies throughout the country. Let's make sure
23 we provide the kind of leadership to our
892
1 communities so, in fact, we make a difference
2 that makes our streets safer. This just goes
3 one step in that direction. Why not go the
4 whole way and make a difference for our
5 communities?
6 There's a body of research out
7 there. There's programs that can be developed.
8 Let -- as a Senate body, we are crime fighters.
9 We all care about the safety of our
10 communities. Let's prove it. Let's not do
11 BAnd-Aid approaches, short-sided approaches.
12 Let's not just deal in rhetoric. Let's deal in
13 real solutions that are going to save people's
14 lives.
15 Thank you.
16 ACTING PRESIDENT DeFRANCISCO:
17 Senator DiCarlo on the amendment.
18 SENATOR DiCARLO: Senator Mendez
19 has left the chamber, but she was speaking about
20 our conversations with Commissioner Coughlin and
21 she stopped short of her answer to this problem,
22 and if I read Senator Mendez' mind, if she were
23 putting that on as an amendment to my bill, I
893
1 would probably go along with it.
2 Senator Gold, I know that you've
3 obviously worked long on your amendment, and I
4 think you believe this is going in the right
5 direction. I oppose your amendment because I
6 oppose the content of it. I am perfectly
7 willing to discuss with a colleague their
8 feelings on legislation and potential
9 legislation at any time. I do not believe in
10 your amendment, period.
11 We have here a case recently in
12 New York City -- we talk about treatment. We
13 have the case of -- the Rosado case, and we talk
14 about treatment as being the panacea and the
15 answer to these troublesome questions. This man
16 was a second felony offender, having been
17 convicted of second degree robbery in 1971. In
18 1979, he was involved in four separate sex
19 crimes.
20 In 1980, he was convicted of
21 first degree rape, first degree sodomy, first
22 degree attempted rape, first degree attempted
23 sodomy, second degree assault, second degree
894
1 sexual assault, unlawful imprisonment and second
2 degree assault. Although four separate
3 incidents, he was sentenced concurrently, could
4 have been sentenced to a maximum of 12 1/2 to
5 25, but he was sentenced only a 9 to 18. Parole
6 Board did its job and denied him parole four
7 times and he served the minimum.
8 Rosado was a model prisoner and
9 he earned good time, which meant he had to be
10 released after serving 13 years. He agreed to
11 submit to an evaluation and treatment program
12 following his release. Now, I'm all for if
13 you're going to get out, you have to have
14 treatment, because it does probably cut back on
15 some tendencies, but it doesn't cure it. Rosado
16 was actually attending the program after his
17 release and, at the same time, committed eight
18 rapes over a one-year period, and this is while
19 getting treatment.
20 The answer to the problem is to
21 take these people off the streets. The answer
22 is not treatment while in prison or after
23 prison, while out of prison. My bill wants to
895
1 keep these people in prison for longer periods
2 of time. I would rather my bill kept them in
3 for much longer periods of time, but I want to
4 get a piece of legislation passed into law. The
5 reason I put treatment into my bill is because I
6 do believe that some are going to be getting out
7 and it is much better for us to try something
8 else if they're going to be released and if
9 they're going to be released into society, we
10 should try to give them some treatment.
11 Your amendment wants to treat
12 them in prison. Frankly, I don't believe -- and
13 there are studies that will go on forever about
14 what happens in prison and treatments in
15 prison. I do not believe treatment in prison is
16 going to reduce significantly their committing
17 crimes when they're out. I don't think it's
18 going to happen. I don't agree with your
19 amendment, but I think we've got to get serious
20 with this crime. We're not serious with it.
21 This bill has passed every year
22 for the last six years, and every Democrat in
23 this chamber along with every Republican votes
896
1 for it. You might not think it goes far
2 enough. You'd rather see treatment while in
3 prison, but we pass a bill every year in this
4 floor for six years, only to die over in the
5 other chamber. We're not serious about the
6 crime of rape. We're not serious about the
7 crime of child molestation. It's a joke.
8 Now, Senator Gold, I would always
9 sit down and discuss pieces of legislation with
10 you. I do not believe your amendment goes in
11 the direction that I want my bill to go in, and
12 I would be happy to sit down with you at another
13 time to discuss other pieces of legislation
14 because I believe your many years in the Senate,
15 all right, would be helpful to me, but this
16 amendment does not go in the direction that I
17 want it to. I would not vote for your
18 amendment. I would urge its defeat.
19 Thank you.
20 ACTING PRESIDENT DeFRANCISCO:
21 Senator Gold.
22 SENATOR GOLD: Yeah, if nobody
23 else wants to speak, I'd close on this.
897
1 Let me say this. Senator
2 DiCarlo, first of all, I have a great deal of
3 respect for you. You know that, but -- but when
4 you say studies "go on forever", to give the
5 impression that there's studies on the right and
6 studies on left is nonsense because, Senator
7 DiCarlo, in all fairness, there are no studies
8 on the other side that say that it's a waste of
9 time. There aren't. There are the studies
10 referred to. Minnesota, you've got
11 Massachusetts, New Jersey and others. Those are
12 real studies.
13 Now, I learned years ago you
14 can't argue religion with people because, at one
15 point in time, somebody says to you, "Well,
16 that's what I believe." Well, if that's what
17 you believe, then let's not get into logic or
18 anything else. If you want to say, "Well, this
19 is what I believe," then I won't argue with you
20 on that, but don't tell me there's studies and
21 they go on forever.
22 The other thing is you said that
23 my amendment talks about treatment as a
898
1 panacea. Now, that's not so. I didn't say that
2 at all. And as far as Mr. Rosario is concerned,
3 as Senator Abate pointed out, you don't treat
4 somebody for an hour and say, "My God, we've
5 just sent down another changed person." This
6 takes a period of time, and if that time starts
7 while they're in prison, then the person who
8 goes out on the street isn't hitting treatment
9 for the first time, so you can shrug your
10 shoulders and say, "Look at that. We gave that
11 guy an hour yesterday and he committed a crime
12 today." We're talking about giving people
13 treatment over a period of time, so the day they
14 get out of prison maybe they are a different
15 person.
16 And the problem with giving me a
17 case like the Rosario case is you've got to
18 invite me to read you these 35 cases of people
19 who went through the program described by
20 Senator Hoffmann and who haven't bothered
21 anybody. So, you know, bad cases make bad law.
22 There's always some instance, situation you can
23 point to, but that doesn't mean that that's
899
1 what's really happening across the board.
2 Now, this bill is not, as far as
3 I know, passing the Assembly tomorrow. As a
4 matter of fact, you indicated you haven't been
5 able to pass it in the Assembly for years, so
6 this conversation we have today could be a very
7 useful one in the process. "Let's not pass the
8 bill. Let's talk. You don't like my amendment,
9 maybe there's a way we can word it differently
10 to fit it in," and then we wind up taking care
11 of the situation.
12 Another point I want to make is
13 there's an expression used all the time, and
14 I'll bet you right now -- I'll bet you right
15 now, Senator DiCarlo, dinner for four, my wife
16 and you and your wife in New York. You pick the
17 restaurant -- that by the time we finish a
18 debate on a bill tomorrow, if that bill comes up
19 tomorrow, somebody on your side of the aisle is
20 going to say, "And even if this saves only one
21 life, it's worth it." Well, let me tell you
22 something. Why not today? If my amendment will
23 save one life, if my amendment will save 50
900
1 women, why isn't that enough? I mean, I must
2 tell you if you -- if you talk to people who
3 have been involved with the rape situation, it's
4 devastating to someone's life, so if my bill
5 could save one life, why isn't it worth it? And
6 the fact of the matter is, we're talking about a
7 lot more than just one life.
8 What we have here in this debate
9 I find fascinating. We have people who say,
10 "Well, I've got a feeling." There are fears.
11 There's obviously politics involved, and on my
12 side of the aisle, I sat -- and there's a Jewish
13 word "kvell" which means you look at something
14 with great pride, and I listened to Senator
15 Hoffmann talk, and what did I hear? I didn't
16 hear prejudice; I heard facts from an
17 intelligent, articulate lady, setting forth real
18 logic for what is happening in understanding a
19 problem; and if that wasn't enough, Senator
20 Abate jumps in and says, "Look, I'm a Senator
21 for maybe an hour and a half, but I have 22
22 years' experience in this subject and maybe
23 that's why people sent me here."
901
1 And I think that the corker of it
2 all is, Senator DiCarlo, you may, on a scale of
3 one to ten, have an idea of where you are in the
4 fight against sex abuse, but wherever you think
5 you are, put Senator Mendez one step ahead of
6 you because, in her little remarks, we all know
7 the way she feels, and she stands up and says,
8 "I don't think this will work, I'll give it a
9 try," because maybe Senator Mendez, in her
10 wisdom, says, "If it helps one woman, ten women,
11 fifty women --" So that's what we're talking
12 about. We're talking about whether or not this
13 is a serious process.
14 You said a moment ago, Senator
15 DiCarlo, that you were very upset with the
16 process. This house unanimously has passed a
17 bill and why is it not the law? Maybe it's not
18 the law because it's the fault of your party.
19 Maybe if your party didn't bring bills out for
20 political advantage, maybe if they brought out
21 ideas for conversation, if they came out with
22 open ears and an open mind, that would be fine.
23 Now, Senator, you said you don't
902
1 like the idea. That, I respect. That, I
2 respect. You're entitled not to like the idea,
3 and I believe you're an honest man and you don't
4 like it, but there are people on your side who I
5 know do like it, and maybe if we refined it,
6 maybe if we worked it out between you and I and
7 between you and Senator Hoffmann who probably
8 knows more about it than I do, Senator Abate who
9 probably knows more about it than I do, we'd get
10 the amendment that passes both houses and then,
11 Senator DiCarlo, the system will work and you
12 will be one of the reasons why it worked.
13 I sincerely hope this amendment
14 passes.
15 ACTING PRESIDENT DeFRANCISCO:
16 Senator Abate.
17 SENATOR ABATE: I just want to
18 urge again that this is a good bill, but you
19 have an opportunity to create an excellent bill,
20 and I urge you to go back to the state Division
21 of Parole and speak to parole officers that, if
22 they're going to be effective in supervising sex
23 offenders in the community, they need mandatory
903
1 treatment in the prisons. They will tell you
2 that over and over again. If I'm wrong, please
3 come back to the floor and tell me I'm wrong.
4 What I'm asking is to have a debate and
5 discussion so we really can produce a bill
6 that's going to make a difference. And I just
7 want to -- because I did not cover it in the
8 first instance, when we created that sex
9 offender treatment program in New York City, we
10 studied offenders in the prior year to look at
11 the recidivist rates, those sex offenders on
12 probation that did not have offender treatment
13 available to them, and then we developed an
14 intensive treatment program where people were
15 supervised in their homes. We went -- did home
16 visits. There was counseling. There were
17 medical staff assigned to the sex offenders.
18 The recidivism rates were substantially reduced.
19 Now, Senator Gold, that's not a
20 study in Massachusetts. That's not a study in
21 Minnesota; that's real life and what happened in
22 New York City with real life human beings and
23 serious sex offenders, pedophiles, acquaintance
904
1 rapes, other kinds of rapists and sex
2 offenders. Please, let's talk about those
3 experiences in New York City, across the
4 country. Let's look to parole.
5 You have a great opportunity to
6 provide enormous leadership around a very
7 complex and difficult problem. We ask you to
8 take another look at it. Come back. If we're
9 wrong, tell us we're wrong, but we're raising
10 some critical issues that, I think, deserve more
11 examination and debate.
12 ACTING PRESIDENT DeFRANCISCO:
13 The question is on the amendment. All those in
14 favor signify by saying aye.
15 (Response of "Aye".)
16 Opposed?
17 (Response of "Nay".)
18 The amendment is defeated. On
19 the bill, please read the -- please read the
20 last section.
21 THE SECRETARY: Section 14. This
22 act shall take effect on the 1st day of November
23 next succeeding the date on which it shall have
905
1 become a law.
2 ACTING PRESIDENT DeFRANCISCO:
3 Please call the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 58.
6 ACTING PRESIDENT DeFRANCISCO:
7 The bill is passed.
8 THE SECRETARY: Calendar Number
9 55, by Senator Present, Senate Bill Number 503,
10 an act to amend the Penal Law.
11 ACTING PRESIDENT DeFRANCISCO:
12 Senator Dollinger.
13 SENATOR DOLLINGER: Mr.
14 President, could you tell me what number we're
15 on on the calendar? I apologize. 56?
16 ACTING PRESIDENT DeFRANCISCO:
17 55.
18 SENATOR DOLLINGER: Thank you.
19 ACTING PRESIDENT DeFRANCISCO:
20 Please read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect on the 1st day of
23 November.
906
1 THE PRESIDENT: Call the roll.
2 (The Secretary called the roll.)
3 ACTING PRESIDENT DeFRANCISCO:
4 Senator Paterson -
5 SENATOR PATERSON: Mr. President.
6 ACTING PRESIDENT DeFRANCISCO: -
7 to explain your vote?
8 SENATOR PATERSON: This
9 legislation is -
10 ACTING PRESIDENT DeFRANCISCO:
11 Excuse me. I'm confused a bit. We're on the
12 roll call. Are you rising to explain your
13 vote?
14 SENATOR PATERSON: I was.
15 ACTING PRESIDENT DeFRANCISCO:
16 Okay. Thank you.
17 SENATOR PATERSON: Mr. President,
18 on this particular piece of legislation, I'm
19 voting no on it. The Eighth Amendment of our
20 Constitution allows and certainly provides that
21 every citizen is extended -- that's what I
22 thought. I'm on the wrong bill, Mr. President.
23 ACTING PRESIDENT KUHL: Senator
907
1 Paterson, that's happened to a lot of people
2 before.
3 Can we continue with the roll
4 call?
5 SENATOR PATERSON: No, I want to
6 leave now, Mr. President.
7 (Laughter)
8 ACTING PRESIDENT KUHL: Senator,
9 I'll allow you to do that too, Senator.
10 SENATOR PATERSON: Continue the
11 roll call, Mr. President.
12 ACTING PRESIDENT KUHL: The
13 Secretary will announce the results.
14 THE SECRETARY: Ayes 57, nays 1,
15 Senator Paterson recorded in the negative.
16 ACTING PRESIDENT KUHL: The bill
17 is passed.
18 THE SECRETARY: Calendar Number
19 56, by Senator Cook, Senate Bill Number 561, an
20 act to amend the Criminal Procedure Law.
21 SENATOR DOLLINGER: Explanation.
22 THE INMATE: Senator Cook, an
23 explanation has been asked for by Senator
908
1 Paterson.
2 SENATOR COOK: Mr. President, the
3 -- ironically, this bill is explained, although
4 I would have to say rather imperfectly in a
5 memorandum in opposition which states that
6 Article -- I can't read it -- Section 5 of the
7 New York State Constitution guarantees every
8 accused the right not to be held unreasonably or
9 on excessive bail.
10 In interpreting these provisions
11 of state, it says -- that happens to be one
12 Supreme Court judge -- has properly recognized
13 that the only constitutional -- constitutionally
14 permissible purpose of bail is to ensure the
15 defendant's presence at a trial.
16 While it was only, indeed, one
17 Supreme Court judge that has been the precedent
18 in the state that the courts of New York have
19 interpreted that bail can only be denied in
20 cases where there's a question of whether the
21 defendant would appear for trial, this bill
22 attempts to establish another standard, and that
23 standard is the purpose of protecting the
909
1 public.
2 It seems to me that our
3 responsibility here is exactly that, and indeed
4 we've just heard a discussion of another bill in
5 which the point was made repeatedly that our
6 purpose here is to protect the public. What
7 this bill does is provide that, in certain
8 enumerated crimes, that is, persons who are
9 arrested and charged with certain enumerated
10 crimes, if they have been previously convicted
11 of one of those enumerated crimes or, indeed, if
12 they're currently on bail and awaiting trial for
13 one of those crimes, that that is taken as an
14 indication that this person is a danger to
15 society and, therefore, that the court is
16 instructed in those cases not to grant bail in
17 those cases. There is a long list of -- a long
18 procedure that can be followed that gives due
19 process by which, if the individual is charged
20 wants to -- wants to contest this, they have the
21 ability to do so, whereupon the judge then has
22 to make a finding in fact that the person does
23 constitute a danger to society.
910
1 This is not a particularly new
2 issue. It's an issue that has been addressed by
3 a report issued by the Democrats in this house
4 who themselves have issued a report indicating
5 that, to quote them, several academic studies on
6 the criminal -- the continuing criminal habits
7 of persons granted pretrial release, granted
8 startling conclusions, revealed startling
9 conclusions. The Institute for Law and Social
10 Research found that 26 percent of all felonies
11 committed in the District of Columbia,
12 admittedly not New York State, but I suspect
13 it's not unlike the same statistics year. 20
14 percent -- 26 percent of all felonies were
15 committed by persons on some form of conditional
16 release. Another study by the U.S. Attorneys
17 Office of over 500 indicted robbery defendants
18 reported a 70 percent rearrest rate while on
19 pretrial release. These were people who were
20 already on bail when they committed another
21 crime. Up to 28 percent of all murders, 19
22 percent of all rapes are committed by persons on
23 conditional release. Senator Kennedy, citing
911
1 instances in Massachusetts, said that over 50
2 percent of all the crime in that state was
3 committed by persons who were out on bail. So
4 the point is that -- and another statistic
5 incidentally is that 80 percent of all the
6 persons convicted of robbery in New York City -
7 New York City, had a prior felony arrest. More
8 than 2,000 persons arrested -- and mentally,
9 this is a staled statistic, but I'm sure again,
10 unfortunately it probably hasn't changed much -
11 2,000 persons arrested in that city in 1976 for
12 new crimes were already wanted under bench
13 warrants because they had broken their parole.
14 So the point is, Mr. President,
15 this bill is a common sense effort to say that
16 there are certain persons in this society who
17 have a history of violent behavior, who have
18 attacked people, who have raped people, in some
19 cases have murdered people, and these people
20 have been arrested. They have been identified.
21 We know who they are, and yet because of the
22 technicality of the way the present law is
23 written and the way it has been interpreted by
912
1 the courts, the courts have said, "We have no
2 choice but to let these people back out on the
3 street." This bill attempts to correct that by
4 saying that the court has a responsibility in
5 the case where an individual has a history of
6 dangerous behavior, to deny bail to that person
7 and to have a speedy trial so that the case can
8 be disposed of.
9 ACTING PRESIDENT KUHL: The Chair
10 recognizes Senator Paterson.
11 SENATOR PATERSON: Thank you, Mr.
12 President.
13 I decided to stay and I really
14 don't mind being the puppet, but my assistants
15 are really starting to let the strings show, so
16 with that, I want to know if Senator Cook would
17 yield for a question?
18 ACTING PRESIDENT KUHL: Senator
19 Cook yields.
20 SENATOR PATERSON: Senator Cook,
21 did the study or some of the studies you're
22 talking about give any available information on
23 what would alter the statistics if the trials
913
1 were made speedier? In other words, if the
2 individuals who were seeking bail could be
3 brought to trail on a sooner period of time,
4 would that influence the statistics?
5 SENATOR COOK: Mr. President, I
6 -- I assume that it's really impossible for any
7 study to speculate on what might have happened
8 if something had been done other than what was
9 done. That's always one of the things that we
10 deal with in here, in fact, admittedly in this
11 bill. I can't stand here and tell you with
12 certainty, what's going to happen when this is
13 written into law, but certainly, we know what
14 has happened when this was not in law, and
15 that's what we're trying to deal with.
16 SENATOR PATERSON: Thank you very
17 much, Senator Cook.
18 I understand that that's a
19 difficult question to answer. It really calls
20 for a great deal of speculation, and I think you
21 gave us a fair answer.
22 My problem with this bill really
23 relates to the Constitution of the United
914
1 States. As I was saying before, the Eighth
2 Amendment which -- really provides that every
3 citizen of the United States, even one that is
4 arrested, is given the opportunity to receive a
5 reasonable bail and given an opportunity to be
6 released on their own recognizance or released
7 with some control, such that they will come back
8 for the trial. The Eighth Amendment is
9 interpreted in New York State by the Fourteenth
10 Amendment, and that is the right to due
11 process.
12 Now, in our state, we recognize
13 that right, so in Article 1, Section 5 of our
14 Constitution, we realize that the only real
15 reason that we have bail is to assure the
16 defendant's presence at the trial, and so we've
17 codified into the Criminal Procedure Law,
18 Section 510.30, Subsection (2), paragraph (a)
19 which states that, really the purpose of bail
20 will be to establish some control over the
21 defendant's -- defendant's whereabouts.
22 What Senator Cook's bill is
23 addressing is the fact that he seems to have
915
1 located that there is a high degree of
2 recidivism among those individuals who
3 apparently -- who have been convicted and have
4 been rearrested for a particular crime that,
5 during that period of time, there was -
6 SENATOR COOK: Mr. President.
7 ACTING PRESIDENT KUHL: Senator
8 Cook, why do you rise?
9 SENATOR COOK: Senator, I know
10 that you're excellent at being accurate, and I
11 just want to correct that. The statistics we
12 have are persons who have been arrested,
13 awaiting trial and commit another crime while
14 they're awaiting trial. So that's what I was
15 citing.
16 SENATOR PATERSON: That's right,
17 Senator Cook. What I was suggesting is that in
18 part of your bill, if there is a previous
19 conviction, that also applies, doesn't it?
20 Okay. And then I was getting to the point that
21 you made which is if they're arrested during
22 that particular time, that they have been again
23 arrested and accused of another offense.
916
1 I think the problem with the bill
2 is really our own Constitution. Perhaps if this
3 were Bosnia, it might actually work, but this is
4 the United States of America. We still have a
5 presumption of innocence until proven guilty.
6 Now, this does not belie the statistics that
7 Senator Cook presents us that, apparently for
8 some reason, people who have already been
9 arrested seem to have engaged at a higher degree
10 in criminal activity than they are when they are
11 not arrested, but still as a society, it is my
12 recommendation that we cannot pronounce a
13 presumption of guilt or in any way detain them
14 for any other reason than what the Eighth and
15 Fourteenth Amendment provide -- in Article 1,
16 Section 5 of our state Constitution provides
17 which is that bill does not speak to the guilt
18 or innocence of the crime. Bail speaks to our
19 assurance that the defendant will be able to
20 face the actual charges.
21 And so I would recommend that we
22 vote no on this particular bill, in spite of the
23 fact that, perhaps, a speedier trial, which is
917
1 guaranteed by the Sixth Amendment, is something
2 that we might look into to try to prevent this
3 problem which Senator Cook has properly
4 identified.
5 ACTING PRESIDENT KUHL: Is there
6 any other Senator wishing to speak on the bill?
7 Senator Dollinger.
8 SENATOR DOLLINGER: Mr. Chairman,
9 would the sponsor yield to a couple of
10 questions?
11 ACTING PRESIDENT KUHL: Senator
12 Cook, do you yield?
13 SENATOR COOK: Yes.
14 ACTING PRESIDENT KUHL: The
15 Senator yields.
16 SENATOR DOLLINGER: Through you,
17 Mr. President. Approximately how many
18 defendants in the criminal justice system in New
19 York State would be affected by the operation of
20 this bill?
21 SENATOR COOK: Senator, I don't
22 know for sure. I can only cite the one
23 statistic that's indicated in the study I do
918
1 have, that said in New York City, there were
2 2,000 persons arrested who were -- already had
3 bench warrants on them, so I assume we're
4 looking at that kind of numbers.
5 SENATOR DOLLINGER: Again through
6 you, Mr. President. Those were 2,000 persons
7 that were arrested in 1976, correct? So, is it
8 safe to assume that there's probably four times,
9 three times, five times the amount of the people
10 that might be affected by this bill today; is
11 that a fair statement?
12 SENATOR COOK: Senator, I'm not
13 sure whether that would be a fair statement or
14 not. Perhaps the courts are doing -- as Senator
15 Paterson indicated, perhaps they are getting to
16 these cases faster, perhaps they're not getting
17 to them as fast. I apologize. I don't have
18 more up-to-date numbers, but I would have to
19 suspect -- I think I know where you're going -
20 that there probably are indeed 4-, 5,000 people
21 in the state who would be in that situation.
22 SENATOR DOLLINGER: Again through
23 you, Mr. President.
919
1 ACTING PRESIDENT KUHL: Senator
2 Cook, do you still yield?
3 SENATOR COOK: Yes.
4 ACTING PRESIDENT KUHL: Senator
5 Cook yields.
6 SENATOR DOLLINGER: Senator Cook,
7 do you know what the cost is to incarcerate
8 those 4- or 5,000 inmates each day in a county
9 facility or in this case, the city of New York,
10 in the city facility, what the cost of
11 incarcerating those individuals is? What's an
12 average cost per day per inmate?
13 SENATOR COOK: Senator, I'm not
14 really sure what that cost is. I have heard
15 numbers talking about $50,000 a year, $100,000 a
16 year, and I guess if you divide it by 365, you
17 would come up with that kind of number, but the
18 point is, Senator, I guess if we really are
19 concerned about the cost of the prisons, we
20 ought to just repeal the Criminal Law and not
21 put anybody in prison. The point is we're
22 trying to deal with a problem here of crime on
23 the street.
920
1 SENATOR DOLLINGER: Again through
2 you, Mr. President, if I could just ask Senator
3 -
4 ACTING PRESIDENT KUHL: Senator
5 Cook, do you continue to yield?
6 SENATOR COOK: Yes.
7 ACTING PRESIDENT KUHL: The
8 Senator continues to yield.
9 SENATOR DOLLINGER: Let's say the
10 cost were $50 per day per inmate, that's
11 probably a fair cost, wouldn't you agree?
12 SENATOR COOK: I think it is a
13 little more than that, Senator.
14 SENATOR DOLLINGER: So to
15 incarcerate the 2,000 people in 1976 at $50 per
16 person per day would cost $100,000 a day to the
17 city of New York to put all the people on
18 pretrial release who are guilt -- who are
19 charged with felonies, had prior felony
20 convictions, would cost them $100,000 a day; is
21 that a fair -- I mean, is my math correct?
22 SENATOR COOK: I assume -- I'll
23 accept that number for whatever purpose.
921
1 SENATOR DOLLINGER: So that's
2 about $36 million a year to incarcerate those?
3 Where are the funds in this bill to pay the city
4 of New York to incarcerate the people so that
5 our vision of what the criminal justice system
6 ought to be is actually reflected by our ability
7 to commit the funds to do it?
8 SENATOR COOK: Senator, I don't
9 know that we have ever when we've written
10 criminal justice bills -- we're going to be
11 doing a death penalty bill here in a couple of
12 days. We've done other types of bills. Senator
13 Gold had just had an amendment on the floor in
14 which he wanted to have certain treatment. I
15 don't know that any of those bills ever had an
16 appropriation attached to them to cover the
17 cost. The point is that we have a criminal
18 justice system that we fund through a different
19 mechanism that is supposed to do certain things
20 and if we, in fact, pass bills that mandate that
21 there are going to have to be people in prison,
22 it's a given that we're going to provide the
23 funding for them. No question about it.
922
1 SENATOR DOLLINGER: But isn't it
2 true -- again through you, Mr. President.
3 ACTING PRESIDENT KUHL: Senator
4 Cook, do you continue to yield?
5 SENATOR COOK: Yes.
6 ACTING PRESIDENT KUHL: The
7 Senator continues to yield.
8 SENATOR DOLLINGER: I agree with
9 you, Senator Cook. I think that we ought to in
10 this era of cost consciousness on the part of
11 government, recognize that when we tell the
12 counties in the city of New York that they now
13 have to pick up the cost of pretrial release and
14 we're going to cancel pretrial release, we're
15 going to require that you put these people in
16 jail, the only problem that I have is that we
17 don't have to pay that cost, do we? That has to
18 come out of the property taxpayers in the city
19 of New York, in the county of Monroe where I
20 live or in any other county in the state, isn't
21 that correct? We don't pay that cost.
22 SENATOR COOK: Mr. President,
23 it's really interesting, Senator, of all of the
923
1 discussions that people have made -- had with me
2 about mandate relief, you're the first person I
3 have ever heard suggest that we ought to repeal
4 the Criminal Law so that we would relieve people
5 of the property tax. That's the first time
6 that's ever been -
7 SENATOR DOLLINGER: You're
8 misinterpreting -- you've misinterpreted my
9 comments.
10 ACTING PRESIDENT KUHL: Senator
11 Dollinger, you have the floor.
12 SENATOR DOLLINGER: I do have one
13 additional question.
14 ACTING PRESIDENT KUHL: Senator
15 Cook, do you continue to yield?
16 SENATOR DOLLINGER: As we push -
17 ACTING PRESIDENT KUHL: The
18 Senator yields.
19 SENATOR DOLLINGER: -- this cost
20 on to the counties and the city of New York, we
21 don't pay for it ourselves, how do you justify
22 that when the Governor is cutting defender
23 services by $18 million so that these trials
924
1 will take longer to occur and he's cutting
2 prosecution cost to the tune of $25 million in
3 this budget, how do you make that fiscal reality
4 square with what appears to be the motive of
5 this bill which is to require that all those
6 trials occur like that?
7 SENATOR COOK: Thank you.
8 I think, as I indicated earlier,
9 the Governor has framed his budget in the
10 context of what is currently on the books, and
11 if this bill arrives on his desk at some point
12 and he signs it into law, then obviously he has
13 to deal with that reality in future budgets, but
14 this bill does not have an effective date as of
15 now. It is not one that will be in place at the
16 beginning of the fiscal year starting April 1st,
17 and so, therefore, it is something that would
18 not appropriately be considered in this year's
19 budget but something that would have to be done
20 next near.
21 SENATOR DOLLINGER: One final
22 question, through you, Mr. President.
23 ACTING PRESIDENT KUHL: Senator
925
1 Cook, do you continue to yield? The Senator
2 continues to yield.
3 SENATOR DOLLINGER: In view of
4 the fact that shifting to the local property
5 tax, the cost of this measure, have any of the
6 county organizations of the city of New York
7 come in and supported this bill and said, "We're
8 willing to pay the property tax cost that would
9 be involved in financing this bill"?
10 SENATOR COOK: Well, again, Mr.
11 President, I haven't had anybody protesting "My
12 gosh, you're imposing a mandate on us." I don't
13 think anybody looks at this bill as a mandate in
14 that sense of the word. I think what people are
15 concerned about is the local police agencies are
16 concerned that they have people that they arrest
17 six and seven and eight and twenty and, in some
18 cases, in the city of Buffalo, 100 times when
19 they are out on bail; that's a cost that they
20 wouldn't like to have. I think if they had
21 those people behind bars they wouldn't be paying
22 that cost. I think people who are raped and
23 robbed and the person who is murdered whom I
926
1 know personally by somebody who was on bail on a
2 rape charge, I don't think that family would
3 have been -- would have been particularly
4 concerned about paying the extra $10 in property
5 tax to have that person held in jail so that
6 they weren't out on the streets to attack other
7 people.
8 I think, Senator, that your
9 speech about property taxes may be well taken in
10 another context, but I don't think there's
11 anybody in the state of New York today who wants
12 to have us reduce our surveillance of known
13 criminals who are out there in the public just
14 to save them money. I have not heard that said
15 by anyone.
16 SENATOR DOLLINGER: Again through
17 you, Mr. President. I apologize. I guess the
18 point of my question to Senator Cook was not to
19 suggest that I favor not doing this because we
20 shouldn't do it. What I simply suggested was,
21 in this new era where we look at costs and we
22 recognize that everything we do in this chamber
23 has a cost associated and at least in my county
927
1 -- my county executive is now living on the
2 second floor, my former county executive -- what
3 he always said was "Don't send us any more of
4 those mandates. Don't tell us to do something
5 that's going to raise our property taxes when
6 you're unwilling put your money, your personal
7 income tax revenue, your business tax revenue,
8 your sales tax revenue, you're not willing to
9 put your money where your mouth is." That's
10 what he kept telling me, and he was dead set
11 against all those unfunded mandates, and he made
12 it very clear that, in this chamber, we ought to
13 look at what we mandate and we ought to tie
14 funds with it.
15 I agree with Senator Cook. Last
16 time when this bill came up, I said, "This is an
17 unfunded mandate.' We're in that -- approving
18 all those bills that said, you know, "No more
19 unfunded mandates. This chamber is dead set
20 against them. We're not going to do it." I was
21 caught up in that rhetoric. I voted for the
22 bill that put a ban on unfunded mandates. I
23 looked at this bill and said, "My God, it's the
928
1 same day and we're passing an unfunded
2 mandate." I voted against it. I saw a
3 television commercial that said "Rick Dollinger
4 voted against work release. Rick Dollinger
5 coddles criminals". I tried to stand up and
6 say, "Gee, It was an unfunded mandate. We
7 weren't willing to put our money where our mouth
8 was, that's why I voted against it." I couldn't
9 get that message out in the campaign because I
10 didn't have all that campaign money that showed
11 up on the other side of the ledger. I never got
12 a chance to say it was an unfunded mandate. Got
13 me last time. Didn't get me this time.
14 I agree with Senator Cook, if
15 it's such a good bill, let's put our personal
16 income taxes, our business taxes, let's fund it
17 ourselves. Let's at least be truthful and
18 realistic. Let's stop sort of this newsletter
19 enacting of legislation or attempts to enact
20 legislation.
21 Frankly, I think, as I said
22 earlier in this chamber today, we do this all
23 the time. We get little headlines for our
929
1 newsletters but we don't accomplish much.
2 ACTING PRESIDENT KUHL: The Chair
3 recognizes Senator Abate.
4 SENATOR ABATE: Mr. President,
5 will Senator Cook yield to a question?
6 ACTING PRESIDENT KUHL: Senator
7 Cook, do you yield?
8 SENATOR COOK: Yes.
9 ACTING PRESIDENT KUHL: The
10 Senator yields.
11 SENATOR ABATE: Yes. How does
12 this bill preserve the presumption of innocence
13 that should be afforded to all defendants -- it
14 could be you or I, any of us, whether it's
15 violent or non-violent -- crimes we're accused
16 of?
17 SENATOR COOK: The bill provides
18 due process which is the matter in which we
19 protect that presumption. There is a due
20 process manner in which the defendant is able
21 to, if you will, protest, and that is -- that's
22 how we do it; that's how we do it in a criminal
23 proceeding. It, in effect, does require a
930
1 preliminary finding, if you will, if it's
2 requested by the defendant.
3 SENATOR ABATE: Mr. President.
4 ACTING PRESIDENT KUHL: Senator
5 Abate.
6 SENATOR ABATE: Would you yield
7 to another question?
8 SENATOR COOK: Might I suggest
9 that it's not -- in a sense it's not an awful
10 lot like a grand jury proceeding, in a sense,
11 because there is a presumption.
12 SENATOR ABATE: My understanding
13 is that in a grand jury proceeding, there is
14 testimony taken and after testimony is heard,
15 there's a decision rendered. In this case,
16 there's no evidence heard by the judge, it's
17 just the nature of the crime to which a
18 defendant is accused and by that, the nature
19 that person will be denied bail or ROR?
20 SENATOR COOK: Not quite,
21 Senator. The purpose of the hearing, if
22 requested by a defendant, is really to determine
23 whether this person is a potential endangerment
931
1 to society, and that becomes the criteria. If
2 there is, in fact, a pattern of behavior on the
3 part of that individual that indicates that, if
4 they're released back on the street, there's a
5 likelihood that they're going to commit another
6 crime, that is the criteria that we're dealing
7 with.
8 SENATOR ABATE: One other
9 question.
10 ACTING PRESIDENT KUHL: Senator
11 Cook, do you continue to yield?
12 SENATOR COOK: Yes.
13 ACTING PRESIDENT KUHL: The
14 Senator continues to yield.
15 SENATOR ABATE: Can you envision
16 a situation where a defendant has a long
17 criminal record but there's little or no
18 evidence to support the instant charge and that
19 individual would really be denied presumption of
20 innocence on the instant charge because of their
21 prior record?
22 SENATOR COOK: Mr. President,
23 remember, you have a situation where a person is
932
1 already out on bail on a previous charge, so you
2 have a pattern there of a person who is
3 repeatedly being arrested for -- for criminal
4 behavior, and it is a matter of making a
5 rational judgment on the part of the Court that
6 this person is very likely to be involved in
7 criminal behavior and, therefore, it's a matter
8 of protection for the public.
9 SENATOR ABATE: Thank you.
10 ACTING PRESIDENT KUHL: The Chair
11 recognizes Senator Waldon.
12 SENATOR WALDON: Thank you very
13 much, Mr. President.
14 Would the good Senator yield for
15 a question or two? I'll be as brief as I can,
16 Senator Cook. I thank you, Mr. President.
17 In arriving at this legislative
18 proposal, Senator Cook, did you have a data base
19 which indicated to you the number of people in
20 other situations, in other locations of the
21 states who have been similarly charged, who have
22 had a similar review and who have been either
23 denied their release or held without release?
933
1 SENATOR COOK: Senator, the
2 question that you're asking is if in other
3 jurisdictions where they have preventive
4 detention, do I know what those statistics are?
5 No, I don't, Senator. I don't have that. What
6 I do have is statistics indicating what happens
7 in that state when we don't have preventive
8 detention.
9 SENATOR WALDON: Well, would you
10 share with us in regard to what happens in this
11 state when we don't have preventive detention?
12 SENATOR COOK: The situation I
13 referred to earlier when 2,000 people in New
14 York City who were arrested had previously -
15 were people who were already awaiting trial.
16 Now, that's a pretty telling statistic, I would
17 think.
18 SENATOR WALDON: No, Senator.
19 With all due respect, you anticipated my
20 question and, unfortunately, you anticipated it
21 in the wrong manner.
22 ACTING PRESIDENT KUHL: Senator
23 Cook, do you continue to yield?
934
1 SENATOR COOK: I would be glad to
2 anticipate, Senator.
3 ACTING PRESIDENT KUHL: The
4 Senator continues to yield, Senator Waldon.
5 SENATOR WALDON: Thank you, Mr.
6 President.
7 What I was about to ask you, sir,
8 was is there any information in this state which
9 shows what happens to African-Americans,
10 Caribbean-Americans and Latinos in the process
11 you're proposing when the arresting officer is
12 white, when the prosecutor is white, when the
13 judge is white; is there any information in that
14 regard meaning when there might be a possibility
15 of racism coming into the process as opposed to
16 an absolutely fair, equitable due process
17 process?
18 SENATOR COOK: Mr. President, I'm
19 not very clear on exactly what the Senator is
20 asking because if the Senator is asking how many
21 people are denied bail because they -- under the
22 statute, obviously nobody has been denied bail
23 because it isn't there. If you're asking me,
935
1 how many people would I presume would be denied
2 bail, I don't have any way of answering it. I'm
3 not real clear on the question you're asking.
4 SENATOR WALDON: Thank you very
5 much, Senator Cook. I appreciate your
6 indulgence. Mr. President, if I may on the
7 bill.
8 ACTING PRESIDENT KUHL: Senator
9 Waldon on the bill.
10 SENATOR WALDON: I'm just trying
11 to make a point, my colleagues. The reason that
12 some of us oppose the death penalty is that,
13 historically, those people who are on the lowest
14 end of the socioeconomic ladder and who happen
15 to be of color have been most disparately
16 impacted by the death penalty. The statistics
17 show clearly that those who are black and Latino
18 in this nation have been disproportionately
19 killed and executed by the death penalty
20 wrongfully, and I'm not saying that those who
21 commit those crimes should not be punished, but
22 there have been too many instances where those
23 who happen to be of color have been executed and
936
1 it's been found out later that they were
2 innocent.
3 And so what I'm saying is that
4 this thing that you're proposing which, in my
5 opinion, violates the basic fabric of this
6 nation, the Constitution of the United States,
7 will do the self -- same thing. It will create
8 another opportunity for people of color and
9 Latinos and other minorities and poor people to
10 be disparately treated by our jurisprudential
11 system, and for that reason alone, I must oppose
12 it.
13 Thank you, Mr. President.
14 ACTING PRESIDENT KUHL: The Chair
15 recognizes Senator Montgomery.
16 SENATOR MONTGOMERY: Thank you,
17 Mr. President.
18 I wonder in Senator Cook would
19 yield for just one -
20 ACTING PRESIDENT KUHL: Senator
21 Cook, would you yield to Senator Montgomery?
22 (Senator Cook nods head.)
23 The Senator yields.
937
1 SENATOR MONTGOMERY: Senator,
2 does this remove the jurisdiction from the
3 judge, the judicial process, in terms of
4 determining whether or not bail is being -
5 SENATOR COOK: Senator, the
6 arraigning judge is the one who makes the
7 determination, and I would assume, and I'm not a
8 lawyer, so if I'm -- if I make a mistake in
9 this, I would stand corrected, but I would
10 assume it would be the same judge who would then
11 be conducting the hearing that is required if
12 requested by the defendant; it would be the same
13 judge who would be holding that hearing as to
14 whether or not the bail ought to be granted.
15 SENATOR MONTGOMERY: Senator
16 Cook, if you'll continue to yield.
17 ACTING PRESIDENT KUHL: Senator
18 Cook, do you continue to yield?
19 SENATOR COOK: Yes.
20 ACTING PRESIDENT KUHL: The
21 Senator continues to yield, Senator Montgomery.
22 SENATOR MONTGOMERY: Senator, are
23 you saying that the process as it stands now is
938
1 different in what way? Would you explain that
2 to me?
3 SENATOR COOK: Senator, there's
4 been a precedent established by one of the
5 Supreme Court districts, happens to be the 6th
6 District in this state, that has interpreted the
7 existing law to say that bail can only be denied
8 if there is a finding that the individual is apt
9 not to return -- not to appear for trial. This
10 bill puts another round in there for denied bail
11 which is a finding by the court that this is an
12 individual who has a history of violence against
13 the public and, therefore, that releasing that
14 person back on the street constitutes an
15 endangerment to the public.
16 SENATOR MONTGOMERY: Thank you
17 for that explanation, Senator Cook.
18 This is a very difficult
19 situation for me because, (1) I know that the
20 crime that we're talking about probably affects
21 my district more than it does a number of
22 districts in the state, simply because of the
23 high incidence of crime and it's the
939
1 constituents that I represent who really suffer
2 more, and one of the issues for people in my
3 district is that they want us to do something
4 about violent crime. But, on the other hand, I
5 recognize, as Senator Dollinger has pointed out,
6 on one hand, that we may be passing on a problem
7 similar to what we've -- what we now have with
8 the second felony offense law that has swelled
9 the prisons, and we may be now looking at
10 swelling our jails and possibly without the
11 consequence of reducing crime, and the cost of
12 that and the other problem is, as Senator Waldon
13 pointed out, that the judicial system is not
14 always strictly just.
15 So, Senator Cook, I really would
16 like to support the concept because I think what
17 you want to do makes sense and if, in fact, it
18 were an answer to reducing crime or taking
19 criminals off the street and making that process
20 more efficient, I would certainly be in favor of
21 it, but I think there are a number of questions
22 and I will continue to oppose it, but I do want
23 to be on record in this chamber for not being
940
1 opposed to wanting to see this whole process go
2 much more quickly and that there is a sure and
3 direct relationship between a person who commits
4 a crime and punishment, but I do -- I do worry
5 and I'm concerned about safeguarding the rights
6 and not passing that kind of burden on to the
7 locality, the city of New York, that I don't
8 think is able to withstand a tremendous increase
9 in the cost, vis-a-vis the jail system, at this
10 point in time.
11 Thank you, Mr. President.
12 ACTING PRESIDENT KUHL: Senator
13 Paterson.
14 SENATOR PATERSON: Mr. President,
15 would Senator Cook yield? This is -
16 ACTING PRESIDENT KUHL: Senator
17 Cook, do you yield to Senator Paterson?
18 SENATOR COOK: Yes.
19 ACTING PRESIDENT KUHL: The
20 Senator yields.
21 SENATOR PATERSON: Senator, as
22 you know it's a fundamental precept to our
23 Constitution that an individual is presumed
941
1 innocent until proven guilty. What you're
2 attempting to do, and this is by your own
3 statement, is to add to the acknowledgment of
4 bail under the Eighth Amendment, a new condition
5 for what would be determinative of what bail
6 will be, and so really all I'm asking you is
7 wouldn't you consider trying to change the
8 Constitution of the state rather than putting
9 forth a bill that you would want to pass both
10 houses, because I'm suggesting to you that this
11 bill would be struck down by any court that
12 looked at it because you have really acted to
13 contravene what really is one of the fundamental
14 points that existed in the Bill of Rights.
15 SENATOR COOK: Mr. President, as
16 a matter of fact, Senator, the federal courts in
17 other states have ruled that this particular
18 type of law is permissible. I don't have the
19 citations in front of me, but there are -- there
20 are citations of federal court cases where they,
21 in fact, have found preventive detention to be
22 acceptable, and I would say, Senator, I'm not
23 sure that this is the only place where we take
942
1 people out of circulation on a presumption that
2 they might injure somebody. I think there are
3 places in the Mental Health Law, for example,
4 and other places where we do make presumptions
5 that somebody constitutes an endangerment to the
6 public. So I think that it is a policy that is
7 within the general police powers of the state to
8 do, to make a finding of someone on a temporary
9 basis and it is a temporary basis because it
10 requires a speedy trial, et cetera, is able to
11 -- the court is able to make that determination
12 that releasing this person would not be in the
13 public interest because they are a -- there's a
14 high probability that they would be an
15 endangerment to the public.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson.
18 SENATOR PATERSON: Well, the
19 statistics that you brought forth, Senator Cook,
20 certainly were -- were quite shocking, and they
21 definitely demonstrate that there should be some
22 redress. I'm just questioning the fashion of
23 redress that you are proposing.
943
1 As a matter of fact, I want to
2 welcome back one of our most distinguished and
3 beloved colleagues today, Senator Galiber, or
4 Galiber if you're Caribbean, and he just pointed
5 out as we were listening to the discussion that
6 we have had a number of cases in this country of
7 preventive detention that really turned out to
8 be huge calamities in our historical reference,
9 such as the insurrection of the Japanese during
10 World War II. That was preventive detention,
11 and we wound up having to pay large sums of
12 money because we were really violating the
13 spirit of our Constitution, so I would be
14 interested in some of the federal court dicta
15 that you propose because I thought that the
16 Eighth Amendment, as it's interpreted through
17 the Fourteenth Amendment, was really clear on
18 the reasonable access of bail that each
19 defendant would necessarily have, and the
20 pattern that you're describing, as far as I'm
21 concerned, is really a pattern of arrest, not
22 necessarily a pattern of guilt, and so while the
23 statistics definitely demonstrate that there
944
1 needs to be something about it, that's why I
2 suggested that if we could speed up the trials,
3 that would be a way and also the discretion of
4 the sitting judge, if we provided them with this
5 type of information and tightened up on our bail
6 procedures, assuming that the previous arrests
7 and convictions actually do influence the
8 presence at trial, I would accept that, but a
9 blanket law taking the discretion away from the
10 judges and in a sense making us inflexible and
11 unreasonable where bail is concerned is
12 something that I can't support.
13 ACTING PRESIDENT KUHL: Is there
14 any other Senator wishing to speak on this bill?
15 If not, the clerk will read -- the Secretary
16 will read the last section.
17 THE SECRETARY: Section 11. This
18 act shall take effect on the first day of
19 January next succeeding the date on which it
20 shall have become a law.
21 ACTING PRESIDENT KUHL: Call the
22 roll.
23 (The Secretary called the roll.)
945
1 ACTING PRESIDENT KUHL: Announce
2 the results when tabulated.
3 The Chair recognizes -
4 THE SECRETARY: Those recorded in
5 the negative on Calendar Number 56 are Senators
6 Abate, Connor, Galiber, Gold, Leichter,
7 Markowitz, Montgomery, Paterson, Santiago, Smith
8 and Waldon. Ayes 47, nays 11.
9 ACTING PRESIDENT KUHL: The bill
10 is passed. Also, the Chair would like to say
11 that, Senator Galiber, it's wonderful to have
12 you back. We've missed your warm smile in the
13 chamber. The Chair recognizes Senator Galiber.
14 SENATOR GALIBER: Yes, Mr.
15 President.
16 (Applause.)
17 Mr. President, as you are aware
18 of and many of my colleagues, I have not been
19 here for a while and I'm happy to be back, and I
20 want to take this opportunity to thank my
21 colleagues for their cards, and particularly
22 their prayers, because their prayers are the
23 reason why I'm standing here today.
946
1 However, Mr. President, saying
2 that, I would like to either through unanimous
3 consent or just a statement -- there were
4 several bills that, due to my absence, if I had
5 been here, I would have voted in the negative.
6 I'd like the opportunity to take those negatives
7 into the record or read them into the record.
8 ACTING PRESIDENT KUHL: Senator
9 Galiber, if you will tell us what bills you
10 would like to have been recorded in the negative
11 on, we will have the record reflect your
12 statement.
13 SENATOR GALIBER: Thank you.
14 ACTING PRESIDENT KUHL: No
15 objections from the Acting Majority Leader.
16 SENATOR GALIBER: There's
17 Calendar 1, Bill 289, Calendar Bill 2 and the
18 Senate Bill 514. Let me just read the numbers,
19 I guess, and Bill 515, 496, Bill 34, 197, Bill
20 205, Calendar -- Bill 213, Bill 619, Bill 623.
21 I would particularly like to
22 point out, I'm sure there's others that I missed
23 that I probably would have voted in the
947
1 negative, but those sort of stood out, if you
2 will, but I would like the record to reflect one
3 bill in particular that, if I were here, I would
4 have debated to the very end, hopefully to
5 convince some of my colleagues that the cameras
6 in the courtroom, that bill, particularly voted
7 in the negative and would like to have had the
8 opportunity.
9 I think the O.J. Simpson trial is
10 an example of what some of us who have been
11 opposed to cameras in the courtroom have been
12 saying for many, many years, so I just want to
13 make that brief statement, that slight comment
14 as far as the cameras in the courtroom, and I
15 appreciate your courtesy, Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Galiber, the Journal will reflect that, had you
18 been present in the chamber, you would have been
19 recorded voting in the negative on the bills
20 that you enumerated.
21 Thank you, Senator.
22 The Secretary will continue to
23 read the controversial calendar.
948
1 THE SECRETARY: Calendar Number
2 59, by Senator Present, Senate Bill Number 768,
3 an act to amend the Criminal Procedure Law, in
4 relation to eligibility for youthful offenders
5 status.
6 ACTING PRESIDENT KUHL: Senator
7 Present, an explanation has been asked for by
8 Senator Paterson.
9 SENATOR PRESENT: Mr. President,
10 the summary of the provisions of this bill, a
11 person convicted of any Class B violent felony
12 would be eligible for youthful offender only -
13 only if the court determines such a person was a
14 minor participant in the crime, a mitigating
15 circumstance exists which bear directly upon the
16 manner in which the crime was committed.
17 ACTING PRESIDENT KUHL: Is there
18 a Senator wishing to speak on the bill?
19 (There was no response.)
20 Hearing none, the Secretary will
21 read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect on the 1st day of
949
1 November.
2 ACTING PRESIDENT KUHL: Call
3 roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes -- ayes 57,
6 nays 1, Senator Galiber recorded in the
7 negative.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 66, by Senator Kuhl, Senate Bill Number 2034, an
12 act to amend Chapter 356 of the Laws of 1993,
13 amending the General Municipal Law and other
14 laws.
15 ACTING PRESIDENT RATH: Senator
16 Kuhl, an explanation has been requested.
17 SENATOR KUHL: Yes, Madam
18 President. This is a bill that essentially
19 defines the term "inducement resolution" which
20 is a term that has not been defined in the law
21 as of this moment, but was included in a bill
22 that this Legislature adopted last year in an
23 Industrial Development Agency reform bill and
950
1 which was subsequently signed into law.
2 ACTING PRESIDENT RATH: Please
3 read the last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT RATH: Call the
7 roll.
8 (The Secretary called the roll.)
9 THE SECRETARY: Ayes 58.
10 ACTING PRESIDENT RATH: The bill
11 is passed.
12 Senator Skelos.
13 SENATOR SKELOS: Yes, Madam
14 President. There being no further business, I
15 move we adjourn until Tuesday, February 14th,
16 1995 at 3:00 p.m.
17 ACTING PRESIDENT RATH: The
18 meeting is adjourned.
19 SENATOR MENDEZ: Madam President.
20 ACTING PRESIDENT RATH: I'm
21 sorry. The Chair recognizes Senator Mendez.
22 SENATOR MENDEZ: Thank you.
23 There will be a conference of the
951
1 Democratic Minority right after we adjourn.
2 Thank you.
3 ACTING PRESIDENT RATH: Thank
4 you, Senator Mendez.
5 Conference of the Minority right
6 after the meeting, is that correct?
7 Senator Paterson, was there
8 something else?
9 SENATOR PATERSON: Yes, Madam
10 President. I offer up the following rules
11 change. At a point in the future, I will move
12 to amend Rule 5, Section 7 of the rules of the
13 Senate and I'm giving proper notice by offering
14 up the final -- the following rules change.
15 ACTING PRESIDENT RATH: Senator
16 Skelos.
17 SENATOR SKELOS: Is there any
18 other housecleaning? All right.
19 Madam President, at this time, I
20 would like to move that we adjourn until
21 tomorrow, February 14th, 1995 at 3:00 p.m.
22 ACTING PRESIDENT RATH: Without
23 objection, the Senate stands adjourned.
952
1 (Whereupon, at 5:38 p.m., the
2 Senate adjourned.)
3
4
5