Regular Session - April 24, 1995
4901
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8 ALBANY, NEW YORK
9 April 24, 1995
10 3:02 p.m.
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13 REGULAR SESSION
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17 SENATOR JOHN R. KUHL, JR., Acting President
18 STEPHEN F. SLOAN, Secretary
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4902
1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order. Ask the members to
4 find their chairs. Ask everybody in the chamber
5 to rise and say the Pledge of Allegiance to the
6 Flag with me.
7 (The assemblage repeated the
8 Pledge of Allegiance to the Flag.)
9 In the absence of clergy, I would
10 ask that we recognize Senator Bruno at this
11 time.
12 SENATOR BRUNO: Mr. President,
13 can I ask that all of us in the chamber just
14 take a moment and bow our heads and just say a
15 prayer for the victims and the families of the
16 great tragedy in Oklahoma.
17 (A moment of silence was
18 observed.)
19 Reading of the Journal.
20 THE SECRETARY: In Senate,
21 Sunday, April 23rd. The Senate met pursuant to
22 adjournment, Senator Hoblock in the Chair. The
23 Journal of Saturday, April 22nd, was read and
4903
1 approved. On motion, the Senate adjourned.
2 ACTING PRESIDENT KUHL: Hearing
3 no objection, the Journal stands approved as
4 read.
5 Presentation of petitions.
6 Messages from the Assembly.
7 Messages from the Governor.
8 Reports of standing committees.
9 Reports of select committees.
10 Communications and reports from
11 state officers.
12 Motions and resolutions.
13 Senator Bruno.
14 SENATOR BRUNO: Mr. President,
15 can we ask for an immediate meeting of the Rules
16 Committee in Room 332?
17 ACTING PRESIDENT KUHL: There
18 will be an immediate meeting of the Rules
19 Committee in the Majority Conference Room, Room
20 332.
21 The Chair recognizes Senator
22 Farley.
23 SENATOR FARLEY: Mr. President,
4904
1 on behalf of Senator Cook, on page 29, I offer
2 the following amendments to Calendar 421, Senate
3 Print 3491, and I ask that that bill retain its
4 place on the Third Reading Calendar.
5 ACTING PRESIDENT KUHL: The
6 amendments to Calendar 421 are received and
7 adopted. The bill will retain its place on the
8 Third Reading Calendar.
9 Senator Farley.
10 SENATOR FARLEY: On behalf of
11 Senator Levy, on page 12, I offer the following
12 amendments to Calendar 128, Senate Print 2591-A,
13 and I ask that that bill retain its place.
14 ACTING PRESIDENT KUHL: The
15 amendments to Calendar Number 128 are received
16 and adopted. The bill will retain its place on
17 the Third Reading Calendar.
18 Senator Farley.
19 SENATOR FARLEY: On behalf of
20 Senator Levy, again on page 28, I offer the
21 following amendments to Calendar 411, Senate
22 Print 4036, and I ask that that bill retain its
23 place.
4905
1 ACTING PRESIDENT KUHL: The
2 amendments to Calendar Number 411 are received
3 and adopted. The bill will retain its place on
4 the Third Reading Calendar.
5 Senator Bruno, we have a couple
6 substitutions at the desk.
7 SENATOR BRUNO: Please make the
8 substitutions.
9 ACTING PRESIDENT KUHL: The
10 Secretary will read.
11 THE SECRETARY: Senator Hoblock
12 moves to discharge from the Committee on Veter
13 ans, Assembly Bill Number 2542, and substitute
14 it for the identical Calendar Number 465.
15 On page 6, Senator Johnson moves
16 to discharge from the Committee on Environmental
17 Conservation, Assembly Bill Number 4123, and
18 substitute it for the identical Calendar Bill
19 469.
20 On page 23, Senator Trunzo moves
21 to discharge from the Committee on Education,
22 Assembly Bill Number 1428, and substitute it for
23 the identical Bill Calendar Number 368.
4906
1 ACTING PRESIDENT KUHL: The
2 substitutions are ordered.
3 Senator Bruno.
4 SENATOR BRUNO: Mr. President, at
5 this time I'd like to call up Resolution Number
6 782 that had been previously -- previously
7 adopted by Senator Nozzolio and ask that it be
8 read in its entirety.
9 ACTING PRESIDENT KUHL: The
10 Secretary will read the resolution in its
11 entirety.
12 THE SECRETARY: Legislative
13 Resolution Number 782, by Senators Nozzolio and
14 others, proclaiming April 23rd through the 29th,
15 1995 as National Crime Victims' Rights Week in
16 the state of New York.
17 WHEREAS, public opinion polls
18 clearly indicate that crime and violence are the
19 number one concern among all United States
20 citizens.
21 35 million Americans fall victim
22 to violent crime each year in the United
23 States.
4907
1 Every minute in the United States
2 four women are battered, one woman is raped, six
3 children are abused and one person is robbed.
4 Victims play an indispensable
5 role in bringing offenders to justice and thus
6 preventing further violence.
7 Law-abiding citizens are no less
8 deserving of rights, resources, restoration and
9 rehabilitation than the violent offenders who
10 victimize them.
11 Victim service providers, coun
12 selors and advocates should enjoy full support
13 from all public and private institutions,
14 entities and individuals in their efforts to
15 render critical assistance to those whom our
16 nation failed to protect.
17 Whether measured in dollars,
18 domestic tranquility, dread or death, crime
19 represents the greatest threat to Americans in
20 America.
21 The observance of National Crime
22 Victims' Rights Week is planned for April 23rd
23 through the 29th, 1995 for the purpose of pro
4908
1 viding crime victims and those who serve them
2 with the opportunity to educate citizens about
3 violence and victimization and to encourage
4 their support for victims' rights and services.
5 This legislative body is moved to
6 extend its grateful appreciation to those indiv
7 iduals and organizations committed to working to
8 provide counsel and support to crime victims
9 through direct assistance and educational
10 programs; now, therefore, be it
11 RESOLVED, that this legislative
12 body pause in its deliberations to proclaim the
13 week of April 23rd through the 29th, 1995 as
14 National Crime Victims' Rights Week in the state
15 of New York; and be it further
16 RESOLVED, that copies of this
17 resolution, suitably engrossed, be transmitted
18 to Linda Campion of the Capital District
19 Coalition for Crime Victims' Rights Week.
20 ACTING PRESIDENT KUHL: Without
21 objection.
22 The Chair recognizes Senator
23 Nozzolio to speak to the resolution.
4909
1 SENATOR NOZZOLIO: Thank you, Mr.
2 President, on the resolution.
3 Mr. President, my colleagues, in
4 the wake of one of our nation's most horrific
5 tragedies, the honoring of Crime Victims' Week
6 could not come at a more appropriate time.
7 I rise as chairman of the Senate
8 Crime Victims, Crime and Corrections Committee,
9 and it is my honor that -- as we in this chamber
10 begin Crime Victims' Week.
11 The Oklahoma bombing tragedy
12 clearly indicates the long-lasting trauma which
13 can be afflicted on crime victims and their
14 families. That trauma lasts a lifetime; but as
15 the tragedy also indicates, my colleagues, every
16 American citizen is a victim of crime
17 perpetrated against others.
18 The pictures and images of the
19 senseless and brutal desecration of human life
20 in Oklahoma has not just victimized those
21 citizens of Oklahoma City or those of the state
22 of the Oklahoma, they have victimized us all as
23 Americans and that, as we embark on National
4910
1 Crime Victims' Week, we must expand our
2 sensitivity to the tragedy that occurred there
3 to address the needs of crime victims here in
4 New York in our own state. We must work to
5 assist the victims of rape, robbery and murder
6 and all other crimes. Almost a million crimes
7 happen in New York each year and about 170,000
8 of those are of a violent nature.
9 My colleagues, a number of
10 Senators today have legislation to deal
11 specifically with the issue of crime victims and
12 those efforts are to try to ensure that those
13 who are victimized by crime are not further
14 victimized by the system.
15 Senators DiCarlo, Volker,
16 Leibell, Skelos, Maltese and Johnson each have
17 legislation that will be considered by this
18 house today to deal directly with the issue of
19 crime victims and to try to make those who, as
20 was stated in a news conference with Senator
21 Vacco today, not by one of us today, are a crime
22 victim. We need to bring not just criminal
23 justice but the issue is justice for those
4911
1 victims of crime.
2 Mr. President, I'm proud to be a
3 member of this chamber and prouder still of the
4 work done in this particular area by my
5 colleagues.
6 Thank you, Mr. President.
7 ACTING PRESIDENT KUHL: The Chair
8 would note for the record that the resolution
9 was previously adopted by this chamber.
10 Senator Bruno, that brings us to
11 the calendar.
12 SENATOR BRUNO: Mr. President,
13 can we now take up the non-controversial
14 calendar?
15 ACTING PRESIDENT KUHL: The
16 Secretary will read the non-controversial
17 calendar.
18 THE SECRETARY: Calendar Number
19 54, by Senator DiCarlo, Senate Print 500-A, an
20 act to amend the Criminal Procedure Law and the
21 Penal Law, in relation to felony sex offenses.
22 SENATOR PATERSON: Lay it aside.
23 ACTING PRESIDENT KUHL: Lay the
4912
1 bill aside.
2 THE SECRETARY: Calendar Number
3 138, by Senator Holland, Senate Print 466-A, an
4 act to amend the Social Services Law, in
5 relation to access to the statewide register of
6 child abuse and maltreatment.
7 ACTING PRESIDENT KUHL: The
8 Secretary will read the last Section.
9 (The Secretary called the roll.)
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 THE SECRETARY: Ayes 52.
13 ACTING PRESIDENT KUHL: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 200, by Senator Saland, Senate Bill 2106, an act
17 to amend the Family Court Act, in relation to
18 dispositional alternatives upon the education of
19 child protective proceedings.
20 ACTING PRESIDENT KUHL: The
21 Secretary will read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect on the 120th day.
4913
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 52.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 295, by Senator Lack, Senate Print 2982, an act
9 to amend the Surrogate Court Procedure Act, in
10 relation to a claimant's right to action.
11 ACTING PRESIDENT KUHL: The
12 Secretary will read the last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll.)
18 THE SECRETARY: Ayes 52.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 317, by Senator DiCarlo, Senate Print 1984, an
23 act to amend the Executive Law, in relation to
4914
1 qualifications of employment.
2 SENATOR PATERSON: Lay it aside.
3 ACTING PRESIDENT KUHL: Lay the
4 bill aside.
5 THE SECRETARY: Calendar Number
6 321, by Senator Saland, Senate Print 2120, an
7 act to amend the Family Court Act, in relation
8 to the fair treatment of child witnesses.
9 ACTING PRESIDENT KUHL: The
10 Secretary will read the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect on the 1st day of
13 November.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll.)
17 THE SECRETARY: Ayes 53.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 359, by Senator Trunzo, Senate Print 3661, an
22 act to amend the Civil Service Law, in relation
23 to conforming the terminology procedures with
4915
1 existing practice for obtaining a guide dog.
2 ACTING PRESIDENT KUHL: The
3 Secretary will read the last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT KUHL: Call the
7 roll.
8 (The Secretary called the roll.)
9 THE SECRETARY: Ayes 53.
10 ACTING PRESIDENT KUHL: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 383, by Senator Hannon, Senate Print 2087, an
14 act to amend the Civil Practice Law and Rules,
15 in relation to disposition of proceedings.
16 ACTING PRESIDENT KUHL: The
17 Secretary will -- lay the bill aside.
18 THE SECRETARY: Calendar Number
19 385, by Senator Volker, Senate Print 2720, an
20 act to amend the Criminal Procedure Law, in
21 relation to pre-sentence investigations.
22 ACTING PRESIDENT KUHL: The
23 Secretary will read the last section.
4916
1 THE SECRETARY: Section 26. This
2 act shall take effect immediately.
3 SENATOR PATERSON: Lay it aside.
4 ACTING PRESIDENT KUHL: Lay the
5 bill aside.
6 THE SECRETARY: Calendar Number
7 386, by Senator Leibell, Senate Print 2743-A, an
8 act to amend the Penal Law, in relation to
9 increasing the penalty for endangering the
10 welfare of a child.
11 SENATOR BRUNO: Lay it aside at
12 the request of the sponsor.
13 ACTING PRESIDENT KUHL: Star
14 Calendar Number 386 at the request of the
15 sponsor.
16 THE SECRETARY: Calendar Number
17 426, by Senator Skelos, Senate Bill 2478, an act
18 to amend the Family Court Act and the Criminal
19 Procedure Law.
20 ACTING PRESIDENT KUHL: The
21 Secretary will read the last section.
22 THE SECRETARY: Section 3. This
23 act shall take effect on the 1st day of
4917
1 November.
2 ACTING PRESIDENT KUHL: Call the
3 roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 53.
6 ACTING PRESIDENT KUHL: The bill
7 is passed.
8 THE SECRETARY: Calendar Number
9 429, by Senator Maltese, Senate Print 455, an
10 act to amend the Executive Law, in relation to
11 the filing time for crime victims compensation.
12 ACTING PRESIDENT KUHL: The
13 Secretary will read the last section.
14 THE SECRETARY: Section 2. This
15 act shall take effect immediately.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll.)
19 THE SECRETARY: Ayes 53.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 THE SECRETARY: Calendar Number
23 430, by Senator Maltese, Senate Print 495, an
4918
1 act to amend the Executive Law, in relation to
2 the definition of victim of a crime.
3 ACTING PRESIDENT KUHL: The
4 Secretary will read the last section.
5 THE SECRETARY: Section 3. This
6 act shall take effect immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll.)
10 THE SECRETARY: Ayes 53.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 THE SECRETARY: Calendar Number
14 432, by Senator Johnson, Senate Print 2183, an
15 act to amend the Executive Law, the Civil
16 Practice Law and Rules and the Tax Law, in
17 relation to personal injury awards.
18 ACTING PRESIDENT KUHL: The
19 Secretary will read the last section.
20 THE SECRETARY: Section 4. This
21 act shall take effect on the 1st day of January.
22 ACTING PRESIDENT KUHL: Call the
23 roll.
4919
1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes 53.
3 ACTING PRESIDENT KUHL: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 433, by Senator Volker, Senate Print 3814, an
7 act to amend the Executive Law, in relation to
8 the written statement of the crime victim in
9 making a parole release decision.
10 ACTING PRESIDENT KUHL: The
11 Secretary will read the last section.
12 THE SECRETARY: Section 2. This
13 act shall take effect on the 1st day of
14 November.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll.)
18 THE SECRETARY: Ayes 53.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 Senator Bruno, that completes the
22 non-controversial calendar.
23 SENATOR BRUNO: Mr. President,
4920
1 can we now take up the controversial calendar?
2 ACTING PRESIDENT KUHL: The
3 Secretary will read the controversial calendar.
4 THE SECRETARY: On page 10,
5 Calendar Number 54, by Senator DiCarlo, Senate
6 Print 500-A, an act to amend the Criminal
7 Procedure Law and the Penal Law, in relation to
8 felony sex offenses.
9 SENATOR PATERSON: Explanation.
10 ACTING PRESIDENT KUHL: Senator
11 DiCarlo, an explanation of the bill has been
12 asked for by Senator Paterson.
13 SENATOR DiCARLO: Thank you, Mr.
14 President.
15 This is exactly the same bill
16 that this body passed unanimously a few weeks
17 ago, except that a technical amendment was
18 necessitated by passage of the death penalty
19 bill. That's the only difference.
20 ACTING PRESIDENT KUHL: The Chair
21 recognizes Senator Paterson.
22 SENATOR PATERSON: Yes, Mr.
23 President. This is an excellent bill. We all
4921
1 voted for it, and what I would like to do is to
2 propose an amendment to this bill, hopefully to
3 improve it, if that's even possible.
4 Is my amendment at the desk, Mr.
5 President?
6 ACTING PRESIDENT KUHL: Yes,
7 Senator Paterson, there is an amendment at the
8 desk. Are you asking to move the amendment,
9 waive the reading of it and an explanation to
10 explain it?
11 SENATOR PATERSON: Let me waive
12 the reading, Mr. President, and just explain it
13 briefly.
14 ACTING PRESIDENT KUHL: Senator
15 Paterson to explain the amendment.
16 SENATOR PATERSON: What this bill
17 does is that it provides for -- for treatment of
18 sex offenders at the -- by the approval of the
19 court.
20 What I wanted to do was create a
21 specific fashion in which the treatment could be
22 achieved. What we would do is we would direct
23 the Department of Corrections and the Division
4922
1 of Parole to supervise the treatment of sex
2 offenders emanating from one year to the end of
3 the actual sentence continuing through the
4 parole period, and what we would have is the
5 Office of Mental Health give an overview and
6 provide some of the protocols to make sure that
7 the treatment continuum moves from the
8 Department of Corrections with the incarcerated
9 person as they move into parole.
10 What it would also do, it would
11 mandate that there be a study as to how
12 effective the treatment of sex offenders can be
13 that would be due on November 1st of the year
14 2000.
15 Senator DiCarlo pointed out when
16 we moved the bill earlier that there is no real
17 cure for sex offenders, and we have no quarrel
18 with that. What we would suggest is that there
19 have been a number of sex offender treatment
20 programs, particularly in New Jersey, that have
21 been effective. They haven't necessarily been
22 effective of curing, but what they have been
23 effective in is curbing and limiting and
4923
1 certainly reducing the recidivism of the sex
2 offender who is serving time. No matter how
3 long the prison sentence is that we impose, we
4 still have the problem of the sex offender
5 coming out of the incarcerated facility.
6 What this amendment does is it
7 provides for a way of establishing some sort of
8 control that we, as a society, would have over
9 the offender emanating from one year prior to
10 the end of the sentence continuing through the
11 entire parole period, and that is the context of
12 this amendment and, Mr. President, I ask that we
13 move it now.
14 ACTING PRESIDENT KUHL: The
15 question is on the amendment. All those in
16 favor of the amendment signify by saying aye.
17 (Response of "Aye".)
18 Opposed, nay.
19 (Response of "Nay".)
20 The amendment is lost.
21 Senator Abate, are you trying to
22 get my attention?
23 SENATOR ABATE: No. I was going
4924
1 to speak on the amendment. I'm sure I would
2 have changed every vote in the house after I
3 spoke, but I supported -- if I -- it's
4 already -
5 ACTING PRESIDENT KUHL: Senator
6 Abate on the bill.
7 SENATOR ABATE: Okay. On the
8 bill.
9 The hostile -- or the amendment
10 is no longer before this body, but I think it's
11 very important that while we do our law
12 enforcement efforts, which are very important,
13 that we also keep in mind, if we are actually
14 going to curb the impact of sex offenders, it's
15 very important to talk about treatment at the
16 same time, and I believe this bill is deficient
17 because there's no appropriation. There's no
18 mandatory treatment available in prison as well
19 as in the community.
20 Let me give you a perspective.
21 If you talk to the Division of Parole and if you
22 talk with the local probation departments around
23 the state, they will tell you that it's not
4925
1 enough to put a sex offender under scrupulous
2 surveillance and monitoring. It's not enough to
3 have a probation officer and parole officer go
4 to someone's house, have that individual
5 report. They need another set of eyes and ears
6 and often that set of eyes and ears is the
7 treatment professional. That individual can get
8 the sex offender to open up. They can get
9 information about what they're doing at home,
10 what fights they're having with their families,
11 whether they're keeping up with their curfew.
12 It's the ability to get this critical
13 information before the parole or probation
14 officer that's necessary, because oftentimes as
15 this information comes before they -- the
16 individual relapses and commits the next crime,
17 when they get this information, they can usually
18 either violate the individual from parole or
19 probation, put their -- put them under more
20 strict surveillance.
21 So if we're talking about public
22 safety, if we are also speaking about preventing
23 future victimization while this sex offender is
4926
1 on the street, we have to talk about treatment
2 and prevention. I ask you, why did the state
3 Division of Parole set up a sex offender unit
4 nine years ago? Why did they go through the
5 entire expense and reorganization to set up
6 specialized case loads for sex offenders? They
7 did that because they needed to do differently
8 with sex offenders; and that's law enforcement,
9 that's prevention and treatment.
10 The bill does some good things.
11 It should go a lot further if we really care
12 about safety on the street and protecting women
13 and children and other members of our society
14 from sex offenders.
15 ACTING PRESIDENT KUHL: The Chair
16 indicated the amendment failed. Is there any
17 other Senator wishing to speak on the bill?
18 (There was no response.)
19 Hearing none, the Secretary will
20 read the last section.
21 THE SECRETARY: Section 14. This
22 act shall take effect on the 1st day of
23 November.
4927
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 53.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 The Secretary will continue to
8 call the controversial calendar.
9 THE SECRETARY: Calendar Number
10 317, by Senator DiCarlo, Senate Print 1984, an
11 act to amend the Executive Law, in relation to
12 qualifications of employment as a youth division
13 aide.
14 SENATOR PATERSON: Explanation.
15 ACTING PRESIDENT KUHL: Senator
16 Saland -- excuse me.
17 Senator DiCarlo, an explanation
18 of Calendar Number 317 has been asked for by
19 Senator Paterson.
20 SENATOR DiCARLO: Thank you, Mr.
21 President.
22 Simply put, what this bill does
23 is it disqualifies from employment as a youth
4928
1 division aide, a YDA, for the Division of Youth,
2 any person convicted of a felony and misdemean
3 ance, at the discretion of the director.
4 ACTING PRESIDENT KUHL: The Chair
5 recognizes Senator Montgomery.
6 SENATOR MONTGOMERY: Yes. Thank
7 you, Mr. President.
8 Would the sponsor of the bill
9 yield for a question?
10 ACTING PRESIDENT KUHL: Senator
11 DiCarlo, do you yield to Senator Montgomery?
12 SENATOR DiCARLO: Yes.
13 ACTING PRESIDENT KUHL: The
14 Senator yields, Senator Montgomery.
15 SENATOR MONTGOMERY: Thank you.
16 Senator, are there any memos on
17 this legislation?
18 SENATOR DiCARLO: I don't have
19 any memos on the bill, but I have spoken to the
20 new director of the Division for Youth and he is
21 in favor of my bill.
22 SENATOR MONTGOMERY: Okay. Thank
23 you.
4929
1 Mr. President, if the Senator
2 would continue to yield.
3 ACTING PRESIDENT KUHL: Senator
4 DiCarlo, do you continue to yield? The Senator
5 continues to yield, Senator Montgomery.
6 SENATOR MONTGOMERY: Does the
7 commissioner currently have any authority to
8 reject any employee based on prior criminal
9 activities? Is that currently part of his
10 jurisdiction in the law?
11 SENATOR DiCARLO: Presently, the
12 director does not have that ability and the
13 Correction Law would prohibit that.
14 SENATOR MONTGOMERY: He does not
15 have authority to -
16 SENATOR DiCARLO: Deny employment
17 based on that, yes.
18 SENATOR MONTGOMERY: Based on
19 that. Okay.
20 Senator, you -
21 ACTING PRESIDENT KUHL: Senator
22 DiCarlo, do you continue to yield?
23 SENATOR DiCARLO: Yes.
4930
1 ACTING PRESIDENT KUHL: The
2 Senator continues to yield.
3 SENATOR MONTGOMERY: The bill
4 says that, if a person has been convicted of a
5 felony, they're automatically disqualified and
6 if a person has been convicted of a misdemeanor,
7 it is at the discretion of the commissioner, I
8 believe. That's how I interpret your -
9 SENATOR DiCARLO: You're correct,
10 if convicted of a felony, cannot work, and the
11 other is also correct.
12 SENATOR MONTGOMERY: All right.
13 Senator, we passed a bill last week, I believe.
14 It was to establish the crime of urination and
15 defecation, if you recall.
16 SENATOR DiCARLO: I recall, yes.
17 SENATOR MONTGOMERY: And I
18 believe that it had degrees of criminality. One
19 was a misdemeanor and that could escalate to a
20 felony, depending on how many times you're
21 arrested and charged for that.
22 SENATOR DiCARLO: I'm taking your
23 word on it.
4931
1 SENATOR MONTGOMERY: Well, let me
2 just ask, Senator. In the event that we had
3 someone who had been arrested and charged with
4 such a crime, or less, that resulted in that
5 person having a misdemeanor charge or even
6 perhaps a felony charge of some lower degree,
7 that means that that person is either
8 automatically disqualified or must prove to the
9 commissioner their worthiness to the
10 satisfaction of the commissioner.
11 SENATOR DiCARLO: Well, if that
12 person were convicted or pled to a felony, they
13 could not be employed. It's not discretionary.
14 If it is a misdemeanor, then it is discretionary
15 and can either work or not work based on the
16 director of the Division for Youth.
17 SENATOR MONTGOMERY: Okay. Thank
18 you, Senator.
19 Mr. President, briefly on the
20 legislation.
21 ACTING PRESIDENT KUHL: Senator
22 Montgomery on the bill.
23 SENATOR MONTGOMERY: Okay. This
4932
1 bill, I think, is very far-reaching, and it is
2 my understanding that, despite the fact that the
3 commissioner has indicated that he does not have
4 the authority, my information says that, under
5 Corrections Law Section 752, the DFY commission
6 er does, in fact, have the authority to restrict
7 and to refuse to hire a person who has a prior
8 criminal record.
9 And so in that sense, Mr.
10 President, I'm not sure that it's even necessary
11 that we do this bill but, nonetheless, Senator
12 DiCarlo has decided that he wants to pass this
13 legislation.
14 Now, I want to just say a word of
15 caution about the far-reaching aspect of this
16 bill. It is going to involve in its net a large
17 number of people whom we, in fact, might want to
18 be able to work in the facilities that they
19 might be employed.
20 I have a program in my district
21 that is a -- it's run by an organization called
22 Therapeutic Communities, Inc. It was founded
23 and established as a prison-based program for
4933
1 rehabilitation of people who've been incarcer
2 ated because they had been involved in drug
3 crimes. It is now a community-based program,
4 and the people who run the program have been
5 inmates themselves and, personally, I think the
6 quality of the program and the success of the
7 program is directly related to the fact that the
8 people who are running it are the most skilled,
9 most knowledgeable, most informed and understand
10 how to work with a personality such as the
11 people that they work with.
12 So, in that sense, if we had this
13 legislation in place, Senator DiCarlo -- Mr.
14 President, we may not have that kind of program
15 in our state, and that program, by the way, has
16 been exported by the state of New York. We
17 don't pay for it, but the model is ours. It was
18 born here. It has now been invited to be a
19 major program in the prison system in the state
20 of Texas and in other states and countries
21 around the world.
22 So I'm just -- I think that we're
23 going backwards, Mr. President, and I would
4934
1 advise that Senator DiCarlo rethink the whole
2 notion of what it is we're talking about. I
3 don't think you expect, Mr. President -- I don't
4 think Senator DiCarlo expects that a group of
5 well-meaning, well-trained social workers are
6 going to go into a DFY facility and function
7 perhaps as well and as professionally as a
8 person who knows the system, knows the
9 personalities, understands how to work with
10 them, understands the dynamic of the behaviors
11 that they are faced with and can deal with them
12 in a very professional fashion.
13 So I think this is a -- it's
14 well-meaning but it's, one, not needed and, two,
15 I think it's too far-reaching and it's going to
16 ultimately prevent us from having some of the
17 best possible minds and hands in those available
18 to work in some of the very difficult situations
19 in DFY facilities. So I'm voting against it,
20 and I urge my colleagues to also oppose this
21 legislation.
22 Thank you, Mr. President.
23 ACTING PRESIDENT KUHL: The Chair
4935
1 recognizes Senator Paterson.
2 SENATOR PATERSON: Mr. President,
3 I agree with what Senator Montgomery said and
4 I'm quite persuaded by her presentation. I
5 would just like to add to that, the fact that we
6 disagree sometimes in this chamber on how long
7 the sentences should be for particular crimes,
8 but we do have an overall theory about
9 individuals paying their debt to society.
10 In cases where a person commits a
11 murder, we have determined in this state now
12 that they may pay the ultimate price for the
13 crime they committed. In other cases, we may
14 incarcerate them for life because, while we
15 might not want to execute them under our new
16 death penalty, we recognize that it is a danger
17 to have these individuals come back into
18 society.
19 Now, where we have allowed
20 individuals back into society, there are at
21 times protections that we may establish based on
22 the type of crime that individual has committed.
23 There is a bill that's on the active list -- it
4936
1 hasn't come before the Senate yet -- that would
2 disallow bus attendants who previously had a
3 felony from working here in New York State.
4 Now, these individuals would work around younger
5 people and I could understand, for instance, if
6 they were sex offenders that we wouldn't want
7 them around younger people. We don't want
8 previous inmates to be working as guards in our
9 correctional facilities that would compromise
10 security, so I can understand that.
11 But what I think Senator
12 Montgomery was admonishing us and what I think
13 we really need to heed is the warning that we
14 aren't providing any kind of opportunity for
15 individuals who we have determined have paid
16 their debt to society. Yes, there is a more
17 increased possibility that they may be
18 recidivists compared to a member of the average
19 population but, at the same time, if we are
20 really providing some sort of rehabilitation and
21 we are not inviting these individuals who
22 engaged in criminality to continue, then I would
23 suggest that there have to be some methods of
4937
1 employment for them, and if we're not going to
2 let them work in correctional facilities or if
3 we're not going to let them work in Social
4 Service facilities, if we're not going to let
5 them work in youth facilities, my question is
6 where are they going to work?
7 There are a lot of studies that
8 demonstrate that individuals who have previously
9 been convicted have been very effective at times
10 in prevention aspects, of talking to younger
11 people and letting them know some of the lessons
12 that they have to learn in life and advising
13 them to think before they would get involved in
14 that kind of criminal conduct, lest they be put
15 in the same position that these ex-offenders
16 are.
17 What I'm objecting to in this
18 piece of legislation and others that I see is
19 we, as a society, taking a -- an extremely
20 strict and constructionist view about
21 ex-offenders, almost forcing them back into
22 recidivism because we, as a society, haven't got
23 the slightest job that they would be eligible
4938
1 for because in some way we've decided that it
2 impedes the regular workings of society from
3 continuing.
4 The other problem of this bill
5 is, since there is the discretion on mis
6 demeanors on the part of the commissioner, is
7 the fact that people have been convicted for
8 misdemeanors for trespassing and violating
9 orders of protection and a number of issues in
10 which it may have just been a compulsive act
11 committed once and then, for the rest of time,
12 this individual may have an employment problem
13 because of an act, such as a violation of
14 Section 240 of the Criminal Law which relates to
15 trespass.
16 And so I would -- I would suggest
17 that we not move this bill and rethink what our
18 directives are to those who have served time.
19 ACTING PRESIDENT KUHL: The
20 Secretary will read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
4939
1 roll.
2 (The Secretary called the roll.)
3 ACTING PRESIDENT KUHL: Announce
4 the results when tabulated.
5 THE SECRETARY: Ayes 49, nays 4.
6 Those voting in the negative are Senators Abate,
7 Espada, Galiber and Paterson.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Also, Senator
11 Montgomery.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 The Secretary will continue to
15 call the controversial calendar.
16 THE SECRETARY: Calendar Number
17 383, by Senator Hannon, Senate Print 2087, an
18 act to amend the Civil Practice Law and Rules,
19 in relation to disposition of proceeds of claim
20 of infant, incompetent or conservatee.
21 SENATOR PATERSON: Last section.
22 ACTING PRESIDENT KUHL: Read the
23 last section.
4940
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 53.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 THE SECRETARY: Calendar Number
10 385, by Senator Volker, Senate Print 2720, an
11 act to amend the Criminal Procedure Law, in
12 relation to pre-sentence investigations of
13 defendants in sex offense cases.
14 SENATOR PATERSON: Explanation.
15 ACTING PRESIDENT KUHL: Senator
16 Volker, an explanation has been asked for of
17 Calendar Number 385 by Senator Paterson.
18 SENATOR VOLKER: Mr. President,
19 this is known as the Rape Victims' Services Act
20 of 1995. This bill passed the Senate last year
21 by a vote of 52 to 2.
22 It provides a series of provis
23 ions in relates -- in relation to various
4941
1 support services and various types of services
2 involving sex crimes. It establishes a
3 statewide toll-free rape crisis hot line. It
4 establishes standards for rape collection -
5 evidence collection kits. It establishes
6 treatment for rape offenders. It allows victims
7 to be notified if their assailant has HIV. It
8 makes HIV testing and counseling costs covered
9 by crime victims' compensation. It requires
10 regular updates to victims of the progress of
11 prosecution, including plea bargains and an
12 opportunity to be heard. It requires a 15-day
13 notification of the disposition of the case and
14 the date of parole hearings. It requires a
15 written statement of the reasons for granting
16 parole to a sex offender. It allows testimony
17 on rape trauma syndrome. It allows photographs,
18 sketches, and so forth, to be used in
19 identification of perpetrators.
20 This bill, which in the past was
21 sponsored by Senator Marino and co-sponsored by
22 myself, has passed the Senate, as I said, last
23 year by a vote of 52 to 2 and it passed on
4942
1 several occasions. The Assembly has a much more
2 limited bill that was just introduced within the
3 last about 15 days, I understand. It is my
4 hope, by the way, that this bill will be the
5 basis for some sort of compromise this year.
6 We have had two bills over the
7 years that deal with the issue of rape, one
8 dealing more primarily with penalties and with
9 the -- the incarceration of rapists, and so
10 forth, and this bill which deals with rape
11 crisis and services.
12 If you'll notice in the bill,
13 although it's effective later on this year,
14 there are demonstration projects involved in it
15 which would not trip in until 1996. The obvious
16 reason for that is that we would have to prepare
17 the funding for that and, due to the limited
18 funding this year, we do not have the funding in
19 this bill except for the initial start-up of the
20 -- of this proposal.
21 So that basically is the bill.
22 Are there any other questions?
23 ACTING PRESIDENT KUHL: The Chair
4943
1 recognizes Senator Paterson.
2 SENATOR PATERSON: Mr. President,
3 this bill actually will assist us in the state
4 recouping ten percent of our federal grant, our
5 Byrne money and, however, what the bill does is
6 it actually goes beyond it because the HIV
7 testing request can be made by the victim prior
8 to conviction.
9 If Senator Volker would yield for
10 a question.
11 ACTING PRESIDENT KUHL: Senator
12 Volker, do you yield?
13 SENATOR VOLKER: Yes.
14 ACTING PRESIDENT KUHL: The
15 Senator yields, Senator Paterson.
16 SENATOR PATERSON: I just wanted
17 to inquire as to why Senator Volker chose to go
18 beyond the federal standard in drafting the
19 bill?
20 SENATOR VOLKER: Senator, the
21 reason we did that was this was a bill -- very
22 honestly was basically requested by crime
23 victims and, as I related in the description of
4944
1 the bill earlier, is a bill that has a whole
2 series of provisions in it, not just the HIV
3 provision but a whole series of provisions that
4 relate to crime victims and specifically the
5 issues of sex crimes; and the reason for that
6 provision in this bill is, frankly, it was
7 requested by crime victims themselves and was
8 included in the bill from the time that it was
9 drafted, which I believe was about three or four
10 years ago, and that's why it's there.
11 SENATOR PATERSON: Mr. President.
12 ACTING PRESIDENT KUHL: Senator
13 Paterson.
14 SENATOR PATERSON: If Senator
15 Volker would continue to yield.
16 ACTING PRESIDENT KUHL: Senator
17 Volker, do you continue to yield? The Senator
18 continues to yield.
19 SENATOR PATERSON: Through you,
20 Mr. President.
21 Senator Volker, if the person who
22 is being accused of the crime tests negative for
23 the HIV virus, wouldn't we still have the
4945
1 responsibility of coming back and testing them
2 after the disposition of the -- of the trial;
3 considering that they're found guilty, wouldn't
4 we have to do it at that time anyway? So that's
5 the reason I'm asking why we have to do it
6 beforehand.
7 SENATOR VOLKER: I don't believe
8 so, Senator. I don't know what the initial -
9 the process is that, if the person requests the
10 -- requests the test and the defendant objects,
11 then the judge would hold a hearing on the issue
12 of the test and should the judge decide, then
13 the defendant would be ordered to do it, but
14 once the defendant is determined to be negative,
15 I don't know what reason there would be to
16 retest the defendant later on after the case is
17 disposed of.
18 ACTING PRESIDENT KUHL: Senator
19 Paterson.
20 SENATOR PATERSON: Mr. President,
21 if Senator Volker will continue to yield.
22 SENATOR VOLKER: Certainly.
23 ACTING PRESIDENT KUHL: The
4946
1 Senator continues to yield.
2 SENATOR PATERSON: Senator
3 Volker, the reason that I think -- in fact, the
4 reason I'm quite sure we would have to retest
5 the defendant is because if the -- if the act -
6 if the crime was committed within six months of
7 the arraignment of the defendant, even if the -
8 even if the defendant tests negative, we still
9 do not know that they're fully testing negative
10 for the HIV virus because it takes about six
11 months, according to medical personnel, for the
12 results of that test to show up.
13 So, in other words, a person who
14 may have just obtained the virus and then
15 commits a crime would test negative but, at some
16 point in the future, they will surely test
17 positive. And so I was wondering that, since
18 this person at the time that we are establishing
19 a mandatory test has not been convicted of a
20 crime, that even for correct medical data as to
21 when someone contracts the HIV virus, that we
22 would wait until the end of the trial anyway,
23 because we don't have reliable information.
4947
1 Even if they test negative, the victim, in my
2 opinion, has to assume that they're positive
3 until some six-month period has elapsed between
4 tests.
5 SENATOR VOLKER: Senator, let me
6 just say to you, at the present time, as you
7 well know, there is no law that says that the
8 person be tested at all. You brought up an
9 interesting issue, but there is nothing in the
10 law now that says a person has to be tested six
11 months from then or at any point. So I guess
12 the answer to your question is, as far as I can
13 see under this statute, a person only need be
14 tested at the -- during the initial hearing, but
15 you might -- you make a point that possibly
16 there should be a consideration for further
17 testing later on, but under this statute, as far
18 as I can see, the only mandate would be that the
19 test be taken at the time the person is arrested
20 and then there's probable cause to say that this
21 person is the perpetrator.
22 ACTING PRESIDENT KUHL: Senator
23 Paterson.
4948
1 SENATOR PATERSON: Mr. President,
2 would you thank Senator Volker for his
3 cooperation, and if I might be allowed to speak
4 on the bill.
5 ACTING PRESIDENT KUHL: Senator
6 Paterson on the bill.
7 SENATOR PATERSON: Senator
8 Volker, previously I pointed out that your
9 legislation is going to, first of all, recoup a
10 lot of the federal funding that we're not
11 getting right now and, second of all, it is
12 going to establish testing which -- which is a
13 commendable reason to draft the bill. That's
14 not what my problem with the bill is.
15 My problem with the bill is that
16 there would be an issue of mandatory testing for
17 an individual who has not been convicted of a
18 crime in the first place, and what I was saying
19 is maybe because of the danger we might want to
20 overlook that. In other words, this is a
21 dangerous situation. There's a chance that this
22 person, by the fact that they're on trial, may
23 be the actual guilty party and so we would force
4949
1 them to consent to testing for the HIV virus,
2 but what I would hope Senator Volker will
3 consider is that that initial test cannot be the
4 only test, and I make that argument on behalf of
5 the health care of the victim, Senator Volker,
6 because if the defendant contracted the HIV
7 virus anywhere within six months of that
8 particular time, it will not show up in a test.
9 It will not show up until later, as are many
10 types of diseases where the individual has the
11 disease and doesn't know it, so they don't test
12 that way until it matures to the extent -- to an
13 extent where we can pick it up through HIV
14 testing.
15 And so what I implore Senator
16 Volker to consider is to possibly redraft this
17 legislation and include in it a final test at
18 some later date so that this could be
19 determined, and I would suggest so that we can
20 clear up all of the issues of privacy in
21 addition, as it impinges on the concept of
22 justice, what we would really want to do is to
23 just wait until that period has elapsed because
4950
1 then we would have a sure test and also we would
2 not have violated the privacy of a person who
3 may be found not guilty of the offense.
4 Thank you.
5 ACTING PRESIDENT KUHL: Senator
6 Mendez.
7 SENATOR MENDEZ: Mr. President,
8 will Senator Volker yield for a question?
9 ACTING PRESIDENT KUHL: Senator
10 Volker, do you yield to a question from Senator
11 Mendez?
12 SENATOR VOLKER: Sure.
13 ACTING PRESIDENT KUHL: The
14 Senator yields.
15 SENATOR MENDEZ: Senator Volker,
16 in your bill, you have options for treatment of
17 rapists. Do you really believe that they could
18 be cured or stopped from committing that
19 horrible crime?
20 SENATOR VOLKER: Well, I think
21 there's a debate about whether there's any
22 possibility of cure, but what the bill provides
23 is for -- remember, it provides -- when we talk
4951
1 about options, we're talking about they can go
2 to jail and be treated.
3 What this bill -- this bill
4 doesn't say that you can just walk out and get
5 treatment rather than incarceration. What it
6 really is, it provides some treatment.
7 As we've talked about, Senator,
8 on a number of occasions, ultimately what we're
9 really looking for is a dual thrust and that is,
10 number one, persons in prison also get treatment
11 and look for treatment for anybody who is also
12 going to get out, and that's what we're really
13 looking for; but the answer to your -- the
14 answer is I'm not sure that anyone has really
15 determined -- I think someone can probably be
16 treated. In most severe cases, they probably
17 can't, but the option here does not mean that a
18 person is going to walk free just because they
19 committed a sex crime, but it means that they
20 will receive incarceration as well as treatment.
21 SENATOR MENDEZ: Thank you.
22 Mr. President, on the bill.
23 ACTING PRESIDENT KUHL: Senator
4952
1 Mendez on the bill.
2 SENATOR MENDEZ: Yes, Senator
3 Volker is correct in saying that the results of
4 treatment for rapists and other sex offenders
5 are mixed.
6 I have consistently stated in
7 this chamber, Mr. President, that the first
8 order of business -- and on this I want to
9 congratulate Senator Volker. The first order of
10 business is to ensure that sex offenders like
11 rapists, like pedoists that prey on young
12 children are locked up, and I mean locked up, to
13 ensure the safety of the children and the women
14 in the state of New York.
15 I don't have the data concerning
16 to what -- how effective those treatment in the
17 prison -- in the system in New York State has
18 been. The fact is that there are no women
19 there. Pedoists that received treatment in the
20 prison system, of course, they don't have the
21 kids around. They're in a different environment
22 that is totally different from the environment
23 outside of the prison system.
4953
1 So I am supporting this bill. I
2 do hope that, eventually, we could come up with
3 a bill in which the rights of the women and
4 children of the state of New York, to safety in
5 that area are more strongly defended by
6 segregating our sex offenders in a prison in New
7 York State and making sure that they stay there
8 for a lengthy period -- a sufficiently lengthy
9 period so that they would not come out so easily
10 and prey once more on women and children.
11 Again, I congratulate Senator
12 Volker on this.
13 Thank you, Mr. President.
14 ACTING PRESIDENT KUHL: The Chair
15 recognizes Senator Dollinger.
16 SENATOR DOLLINGER: Mr.
17 President, will Senator Volker yield to a
18 question?
19 ACTING PRESIDENT KUHL: Senator
20 Volker, do you yield to Senator Dollinger?
21 SENATOR VOLKER: Should we
22 essentially repeat last year's question and
23 answer?
4954
1 SENATOR DOLLINGER: Again,
2 Senator, I'm just trying to make sure -
3 ACTING PRESIDENT KUHL: The
4 Senator yields.
5 SENATOR DOLLINGER: -- make sure
6 I understand because I thought this might have
7 been attended to in the bill.
8 The issue, through you, Mr.
9 President, is who pays the cost for the victim
10 to bring the court application to get the
11 mandatory test? And one of the concerns I had
12 and I know I expressed it last year, was that we
13 tried to provide access to victims' compensation
14 funds to cover the cost of the legal fees that
15 will accrue when the victim who's in this very
16 difficult situation has to hire their own
17 counsel to go out and bring the court order.
18 I note just for the record, Mr.
19 President, that there is a provision in there
20 that says that out-of-pocket loss shall include
21 the cost of testing, counseling and prophylactic
22 treatment provided -- prescribed by a physician
23 in connection with the exposure of the victim of
4955
1 the sex offense. So the crime victim of the sex
2 offense would have the ability to have a portion
3 of their medical costs paid.
4 My question is, and I know we
5 talked about this before, I would just hate to
6 think that a woman is going to be faced with the
7 problem of having to go out and raise 500, $750,
8 $1,000 to bring the civil action to force the
9 test, and one of the things I think we talked
10 about last year was allowing the district
11 attorney to do it. I understand how that gets
12 the district attorney representing an individual
13 plaintiff instead of the state. That may be a
14 problem, but if there was some way that you
15 would give this victim who says, "I would like
16 to have the test of my accused", but then the
17 district attorney says, "You've got to go out
18 and hire a private lawyer to do that" -- I just
19 think it's a deterrent.
20 SENATOR VOLKER: I think our
21 discussion last year -- and that's what I was -
22 I was just reading the testimony, Senator,
23 primarily on the issue of when the HIV test
4956
1 comes in, and so forth, and that's why I was -
2 I didn't mean to be flippant about it. You make
3 a good point, and it's something that we're
4 going to look at.
5 Let me say that it certainly is
6 an issue. I think generally speaking, many of
7 these cases are poor cases anyways. That is,
8 the person is not -- not even necessarily
9 represented because of the way of -- the
10 situation, but you are right, it is something
11 that, I think, needs to be addressed, because we
12 certainly don't want the person to be in a
13 position where she has to -- to have to expend a
14 considerable amount of money to be able to
15 uphold what the law is, because we cover the
16 treatment and we cover everything else. You are
17 absolutely right. It is something we are going
18 to look at and see if there is some way to cover
19 it.
20 SENATOR DOLLINGER: Just on the
21 bill, Mr. President.
22 I'm going to vote in favor of -
23 ACTING PRESIDENT KUHL: Senator
4957
1 Dollinger on the bill.
2 SENATOR DOLLINGER: I'm going to
3 vote in favor of this bill, but I'd just point
4 out, Senator Volker, that one of the other
5 questions would be when the application is
6 sought, I assume many of these defendants will
7 be represented by the public defender. I can
8 understand from the public defender's point of
9 view that they could take the position that they
10 would have to defend this person civilly on the
11 test because of the potential that it could
12 somehow affect the criminal case. So you may
13 have someone who's a victim of a crime having to
14 hire private counsel to wage a war against the
15 public defender who's being retained at
16 government expense to provide a defense, and it
17 just seems to me that you get into that sense of
18 unfair treatment, the unfairness of the system
19 that a victim would take to heart and be more
20 disappointed than enthused that this remedy is
21 available.
22 I'm going to vote in favor of
23 this bill. I think that there is a balancing
4958
1 here. I can see that there's been a lot of work
2 done to improve this balance. I'm just
3 concerned that, unless you provide a mechanism
4 of counsel -- counsel fees out of the crime
5 victims' assistance funds, that you may end up
6 with an illusory benefit to the victim.
7 ACTING PRESIDENT KUHL: Senator
8 Volker on the bill.
9 SENATOR VOLKER: Thank you,
10 Senator Dollinger, and let me just say that you
11 make a very good point. It is something that we
12 are going to look into, and I hesitate to admit
13 it, but my good friend, Senator Paterson, also
14 makes a good point.
15 Senator, if we look at the bill,
16 the -- if you look at the section that relates
17 to HIV testing, you'll see that it talks about
18 the person can bring an action or rather a
19 hearing when the sex offense was committed by
20 the person to be tested in violation of any
21 crime within six months prior to the
22 application, but you do make a point that -- and
23 I guess because I am by no means an expert on
4959
1 HIV testing and I don't profess to be, that we
2 may have a problem with the six-month issue
3 thereafter.
4 So, although I think the bill
5 does cover basically what we were trying to
6 cover as far as the initial testing is
7 concerned, I think we must consider the real
8 possibility that we should look to a further
9 test later on just to be safe. So we will look
10 at that, Senator.
11 I guess I don't agree with your
12 -- with the fact that you don't want to do the
13 initial test, but I think that it is something
14 that we certainly will look at and consider very
15 seriously, making an amendment to the bill.
16 ACTING PRESIDENT KUHL: The Chair
17 recognizes Senator Saland on the bill.
18 SENATOR SALAND: Mr. President, I
19 listened intently to the debate, certainly the
20 debate that ensued between Senator Volker and
21 Senator Paterson.
22 In prior sessions, I have
23 introduced and this house has passed legislation
4960
1 dealing with the subject of HIV testing in sex
2 offense cases and, while this language does not
3 mirror the language that was contained in those
4 particular bills, the two things that I would
5 like to point out would be, number one, the
6 application process requires that the victim or
7 the individual who's making application for the
8 court order to enable the testing has to show
9 that the victim has had the opportunity for
10 counseling. That is in addition to the fact
11 that there also is the prerequisite that the
12 person who is the subject of the test, the
13 proposed subject of the test, is a person who
14 has been advised that they have the right to
15 voluntarily submit to the test.
16 So it may well be that a number
17 of people would voluntarily submit to the test.
18 I would assume that that -- considering the
19 confidentiality requirements in this bill would
20 not be a particularly onerous task but,
21 secondarily, in the course of that counseling,
22 the victim would be apprised of the problems
23 associated with HIV testing and, in fact, I
4961
1 believe at the bottom of pages -- bottom of page
2 6 and top of page 7, there's some reference to
3 the importance of the victim understanding what
4 that is all about.
5 And insofar as testing prior to
6 conviction, I certainly have advocated that on
7 this floor previously, continue to advocate it.
8 I'm aware of at least two separate instances in
9 which the refusal or the inability, I should say
10 more appropriately, to require an HIV test was
11 used in the city of New York in two separate
12 cases that were reported to me, one in a New
13 York City newspaper, the other in a legal
14 bulletin, where it was the defendant attempted
15 to use his refusal to take that test as a means
16 to secure a plea bargain.
17 I would think that the panel that
18 former Governor Cuomo put together, the task
19 force dealing with a number of related issues,
20 was certainly not stacked with right wing
21 Republican types, but they too have recommended
22 that there be a separate civil proceeding which
23 would enable a victim of a sexual offense to
4962
1 have his or her attacker tested prior to
2 conviction. In fact, in their commentary, they
3 said it was an easy decision for them to reach,
4 but they felt that it was an appropriate
5 decision and one which I would agree with
6 wholeheartedly.
7 Mr. President, I certainly thank
8 Senator Volker for bringing this bill forward.
9 I'm hopeful, as he has indicated, that it will
10 form the framework within which we will be able
11 to obtain some type of agreement on this subject
12 during this session. It certainly is long
13 overdue.
14 ACTING PRESIDENT KUHL: Senator
15 Abate, do you wish to speak on the bill?
16 SENATOR ABATE: Senator -
17 ACTING PRESIDENT KUHL: The Chair
18 recognizes Senator Abate.
19 SENATOR ABATE: Yes. Senator
20 Volker, would you yield to a question?
21 ACTING PRESIDENT KUHL: Senator
22 Volker, do you yield? The Senator yields.
23 SENATOR ABATE: As we've spoken
4963
1 before, I also applaud you for many of the
2 provisions, particularly around notification,
3 hot line services, prosecutorial advances, very
4 important pieces of this legislation and,
5 hopefully, this will not just be a one-house
6 bill, it will eventually become law.
7 I do have problems with one
8 section, but on balance, I will support the
9 bill. The problem I have is not post
10 conviction, but in the accusatory stages, the
11 testing of a defendant, and around that issue, I
12 have a number of questions, and just to follow
13 up on Senator Saland's questions.
14 Can a victim seek an application
15 for testing in criminal court, Supreme Court, as
16 well as civil court under the provisions of this
17 statute?
18 SENATOR VOLKER: Just in civil
19 court, Senator.
20 SENATOR ABATE: Just in civil
21 court?
22 SENATOR VOLKER: Right.
23 SENATOR ABATE: And -- which is
4964
1 preferable, because one of my concerns is the
2 application of this test could interfere with
3 the due process rights and presumption of
4 innocence of people accused of crimes and not at
5 a stage of conviction.
6 In order -- and I would hope that
7 once this bill is negotiated, the testing would
8 only be post-conviction but, in any case,
9 assuming if it's preconviction or post
10 conviction, will there be provisions for the
11 victim to bring an ex parte motion? Will it
12 have to be in writing? Could it be also brought
13 by a crime victim advocate? These are issues
14 that perhaps you might want to look at.
15 Again, I stand opposed to
16 preconviction testing. I believe the eventual
17 outcome will be post-conviction testing in order
18 to ensure federal dollars, that you'd look at
19 the issues of how the motion can be brought and
20 if, in fact, it's going to be a real bill, it
21 has to have some teeth and some reality because
22 most victims do not have the resources to go
23 into court.
4965
1 And so while I oppose the
2 preconviction, the post-conviction, I believe,
3 at that point, a woman has a right to know even
4 though the information may be faulty, even
5 though the woman still has to get tested
6 herself, I think you need to consider, is it
7 really going to be an available use to most
8 victims?
9 SENATOR VOLKER: I agree with
10 you. I think it's something we certainly are
11 going to look at and although I don't -- I think
12 that it would be a shame if we ended up strictly
13 with post-conviction, it's something we
14 certainly will look at.
15 We have -- I've said on many
16 occasions with the Assembly that we would be
17 willing to talk about any of these issues. I
18 don't know if you're aware, Senator, that I came
19 to the Senate in part because of my interest in
20 this issue. I led the largest rape investi
21 gation in upstate New York's history, a state
22 trooper and myself many, many years ago, in an
23 investigation that eventually ended up arresting
4966
1 something, I believe, in the neighborhood of 27
2 or 28 people as part of the investigation that
3 involved some 2- or 300 rapes of women
4 throughout upstate New York, and one of the
5 reasons I say I felt so strongly was when I came
6 to the Senate and I was thankfully part of a
7 movement that was occurring which changed the
8 laws on rape and allows us now to convict
9 people, at the time was virtually impossible to
10 convict the person of rape first and, in fact, I
11 think in the time that I was a law enforcement
12 officer, I don't believe one person in Erie
13 County, the county I came from, was convicted of
14 rape first, and this Legislature, in a period of
15 a few years changed the law, so now as you all
16 know, there are a great many rapists who are
17 incarcerated in our prisons, which is where they
18 should be, and there are issues now that are
19 coming up.
20 Obviously HIV and the issue of
21 testing is something very new, as really is the
22 issues -- the crime victim issues are
23 comparatively new because, I think we've only
4967
1 become aware of these over the last few years as
2 more and more people are going to jail but,
3 Senator, it is certainly something we will look
4 at, and we don't want to burden anybody with any
5 more costs than they have to, and we will be
6 happy to look at all those issues in the context
7 of an agreed bill, and I think that the
8 possibilities this year are there probably more
9 than any other because at least the Assembly,
10 very honestly, has introduced a very extremely
11 limited bill within the last month which
12 indicates that they are, at least, interested in
13 discussing this issue.
14 SENATOR ABATE: Would the Senator
15 yield to one more question?
16 SENATOR VOLKER: Sure.
17 ACTING PRESIDENT KUHL: Senator
18 Volker, do you yield to one more question? The
19 Senator yields.
20 SENATOR ABATE: Senator, as you
21 are probably aware, the victims' community is
22 not a monolithic community and not every service
23 provider victim advocate supports the HIV
4968
1 testing of rape victims, and I think most of us
2 think that it's a very clear issue for victim
3 advocates; it is not.
4 The one thing they are united
5 around, whether the testing is mandatory or not,
6 that there be mandatory counseling of the
7 victims, because they want to ensure that
8 there's not false information given to a crime
9 victim around this test because, even though the
10 offender may test negative, he may, in fact, be
11 positive, or if he tests positive, it does not
12 mean that the crime victim is infected with the
13 HIV virus. So it's just one snapshot on a long
14 picture of information that needs to be given to
15 the crime victim, and I would hate to see that a
16 mandatory testing bill come forward and,
17 hopefully, it's not preconviction again, but if
18 it's post-conviction, along with a mandatory
19 testing, there should be mandatory counseling,
20 so that provision could be strengthened. What
21 we don't want is to have crime victims rely on
22 bad information and not get the medical help
23 they need. They need to be tested themselves to
4969
1 ensure their physical well being.
2 So as this bill progresses in the
3 Legislature, I hope you take another look at
4 that counseling provision also.
5 SENATOR VOLKER: Senator, I think
6 if you look at the bill, you'll see that we do
7 provide for crime victims' counseling in the
8 bill, and I think we covered that pretty well.
9 Let me just say about testing, I
10 really think there's only one group that opposes
11 HIV -- really, HIV testing, and all the crime
12 victims' groups, except for a handful of groups
13 that are centered around one group are the ones
14 that oppose this, and I think you know what I'm
15 talking about. Unfortunately -
16 SENATOR ABATE: New York City
17 opposes it, the Bar Association, the Crime
18 Victims Board never took a position.
19 SENATOR VOLKER: Yeah. I think
20 it's only because of one small group in the city
21 that they oppose it because they have, in fact
22 -- most of these groups have come to us and
23 said, "We know it should be done, but we got a
4970
1 problem because some of our members are skittish
2 about this", and so forth, but the problem, I
3 think, is that women are being affected by this,
4 and the difficulty, I think, is it's not just a
5 matter of law, it's a matter of a serious social
6 and criminal justice problem that we have to
7 face up to, whether we like it or not.
8 I know it's a heavy political
9 problem, but I think it has to be faced up to,
10 and it's one of the reasons why, very honestly,
11 we have persisted because I think that sooner or
12 later it's going to happen and, Senator, I guess
13 my only disagreement would be, yeah, maybe
14 initially we're going to be post-prosecution,
15 but I will be willing to wager to you that,
16 before too long, we are going to do HIV testing
17 the way this bill is, because I think it has to
18 happen, and I think most of us that are dealing
19 with this issue know it has to happen.
20 SENATOR ABATE: And I guess one
21 other question to your response.
22 ACTING PRESIDENT KUHL: Senator
23 Volker, do you continue to yield?
4971
1 SENATOR VOLKER: Certainly.
2 ACTING PRESIDENT KUHL: The
3 Senator yields.
4 SENATOR ABATE: You provided for
5 the crime victims' board paying for the
6 counseling that they need as a result of the
7 testing, but I'm not sure, is there -- in the
8 bill that says when the testing occurs, there
9 will be a provision -- a mandatory provision of
10 counseling to the crime victim if they want it?
11 I know that there's compensation available.
12 SENATOR VOLKER: If you look at
13 the bottom of page 6, it says that "based on
14 reasonable cause to believe the crime was
15 committed by defendant, that the applicant has
16 received counseling by a physician or public
17 health officer and understands the limitations
18 on the information to be obtained through HIV
19 related testing", and so forth. I think that's
20 the section that would cover it.
21 SENATOR ABATE: All right. Thank
22 you.
23 ACTING PRESIDENT KUHL: The
4972
1 Secretary will read the last section.
2 THE SECRETARY: Section 26. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 55.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 Senator Skelos, that completes
11 the controversial calendar.
12 SENATOR SKELOS: Yes, Mr.
13 President. At this time, if we could return to
14 reports of standing committees, I believe
15 there's a report of the Rules Committee at the
16 desk.
17 ACTING PRESIDENT KUHL: We will
18 return to reports of standing committees. The
19 Secretary will read.
20 THE SECRETARY: Senator Bruno,
21 from the Committee on Rules, reports the
22 following bills: Senate Print 4323, by the
23 Committee on Rules, an act to amend the Racing,
4973
1 Pari-mutuel Wagering and Breeding Law and
2 Chapter 281 of the Laws of 1994 amending the
3 Racing, Pari-mutuel Wagering and Breeding Law.
4 Senate Print 4324, Budget Bill,
5 an act making an appropriation for the support
6 of government.
7 Senate Print 4325, Budget Bill,
8 an act making an appropriation for the support
9 of government.
10 And Senate Print 4326, Budget
11 Bill, an act to provide for payments to
12 municipalities and to providers of medical
13 services under the Medical Assistance Program.
14 All bills reported directly for
15 third reading.
16 ACTING PRESIDENT KUHL: Senator
17 Skelos.
18 SENATOR SKELOS: Yes, Mr.
19 President. I move we adopt the report of the
20 Rules Committee.
21 ACTING PRESIDENT KUHL: The
22 motion is to accept the report of the Rules
23 Committee. All those in favor signify by saying
4974
1 aye.
2 (Response of "Aye".)
3 Opposed, nay.
4 (There was no response.)
5 The report is accepted.
6 Senator Skelos.
7 SENATOR SKELOS: Could you
8 recognize Senator Santiago, please?
9 ACTING PRESIDENT KUHL: The Chair
10 recognizes Senator Santiago.
11 SENATOR SANTIAGO: Mr. President,
12 I would like to be recorded in the negative on
13 Calendar Number 385, please.
14 ACTING PRESIDENT KUHL: Without
15 objection, Senator Santiago will be recorded in
16 the negative on Calendar Number 385.
17 Senator Skelos.
18 SENATOR SKELOS: Yes. At this
19 time, Mr. President, could we take up Calendar
20 Number 479, Senate 4324?
21 ACTING PRESIDENT KUHL: The
22 Secretary will read Calendar Number 479.
23 THE SECRETARY: Calendar Number
4975
1 479, Budget Bill, Senate Print 4324, an act
2 making an appropriation for the support of
3 government.
4 ACTING PRESIDENT KUHL: The
5 Secretary will read the last section.
6 THE SECRETARY: Section 4. This
7 act shall take effect immediately.
8 ACTING PRESIDENT KUHL: Call the
9 roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes 55.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 Senator Skelos.
15 SENATOR SKELOS: Mr. President,
16 can we take up Calendar Number 480, Senate
17 4325?
18 ACTING PRESIDENT KUHL: The
19 Secretary will read Calendar Number 480.
20 THE SECRETARY: Calendar Number
21 480, Budget Bill, Senate Print 4325, an act
22 making an appropriation for the support of
23 government.
4976
1 ACTING PRESIDENT KUHL: The
2 Secretary will read the last section.
3 THE SECRETARY: Section 4. This
4 act shall take effect immediately.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll.)
8 THE SECRETARY: Ayes 55.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 Senator Skelos.
12 SENATOR SKELOS: At this time,
13 can we take up Calendar Number 481, Senate
14 4326?
15 ACTING PRESIDENT KUHL: The
16 Secretary will read Calendar Number 481.
17 THE SECRETARY: Calendar Number
18 481, Budget Bill, Senate Print 4326, an act to
19 provide for payments to municipalities and
20 providers of medical services under the Medical
21 Assistance Program.
22 ACTING PRESIDENT KUHL: The
23 Secretary will read the last section.
4977
1 THE SECRETARY: Section 3. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 55.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 Senator Skelos.
10 SENATOR SKELOS: Yes. Could you
11 recognize Senator Present, please?
12 ACTING PRESIDENT KUHL: The Chair
13 recognizes Senator Present.
14 SENATOR PRESENT: Mr. President,
15 on page 19, on behalf of Senator Lack, I offer
16 the following amendments to Calendar Number 296,
17 Assembly Print 395, and ask that it retain its
18 place on the Third Reading Calendar.
19 ACTING PRESIDENT KUHL: The
20 amendments to Calendar Number 296 are received
21 and accepted. The bill will retain its place on
22 the Third Reading Calendar.
23 Senator Present.
4978
1 SENATOR PRESENT: Mr. President,
2 on page 11, on behalf of Senator Cook, I offer
3 the following amendments to Calendar 90,
4 Assembly 290-A, and ask that it retain its place
5 on the Third Reading Calendar.
6 ACTING PRESIDENT KUHL: The
7 amendments are received to Calendar Number 90
8 and accepted. The bill will retain its place on
9 the Third Reading Calendar.
10 SENATOR SKELOS: Mr. President,
11 is there any other housekeeping? If we could
12 just stand at ease for a moment then.
13 ACTING PRESIDENT KUHL: There's
14 no housekeeping here, Senator Skelos, at the
15 moment. The Senate will stand at ease for a few
16 moments.
17 (Whereupon, the Senate stood at
18 ease.)
19 ACTING PRESIDENT KUHL: The Chair
20 recognizes Senator Skelos.
21 SENATOR SKELOS: Yes, Mr.
22 President. At this time, there being no further
23 business, I move we adjourn until Tuesday, April
4979
1 25th at 3:00 p.m. sharp.
2 ACTING PRESIDENT KUHL: Without
3 objection, the Senate stands adjourned until
4 tomorrow, Tuesday, April 25th at 3:00 p.m.
5 sharp.
6 (Whereupon, at 4:15 p.m., the
7 Senate adjourned.)
8
9
10
11
12
13
14