Regular Session - June 5, 1995

                                                                 
7660

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         9                       ALBANY, NEW YORK

        10                         June 5, 1995

        11                          3:00 p.m.

        12

        13

        14                       REGULAR SESSION

        15

        16

        17

        18       SENATOR MICHAEL J. HOBLOCK,JR., Acting President

        19       STEPHEN F. SLOAN, Secretary

        20

        21

        22

        23











                                                             
7661

         1                      P R O C E E D I N G S

         2                      ACTING PRESIDENT HOBLOCK:  The

         3       Senate will come to order.  Ask everyone present

         4       to please rise and repeat with me the Pledge of

         5       Allegiance.

         6                      (The assemblage repeated the

         7       Pledge of Allegiance to the Flag.)

         8                      The invocation today will be

         9       given by our good friend, Reverend Peter G.

        10       Young of the Blessed Sacrament Church of Bolton

        11       Landing.

        12                      REVEREND PETER G. YOUNG:  Dear

        13       God, as we gather today, may we again pray for

        14       your commitment and dedication to those in New

        15       York State.  May we pray that you will guide us

        16       and direct our thought and our actions to the

        17       best benefit of our Empire State.  Now and

        18       forever.  Amen.

        19                      ACTING PRESIDENT HOBLOCK:

        20       Reading of the Journal.

        21                      THE SECRETARY: In Senate, Sunday,

        22       June 4th.  The Senate met pursuant to adjourn

        23       ment, Senator Hoblock in the Chair upon designa











                                                             
7662

         1       tion of the Temporary President.  The Journal of

         2       Saturday, June 3rd, was read and approved.  On

         3       motion, Senate adjourned.

         4                      ACTING PRESIDENT HOBLOCK:  With

         5       out objection, the Journal stands approved as

         6       read.   Presentation of petitions.

         7                      Messages from the Assembly.

         8                      Messages from the Governor.

         9                      Reports of standing committees.

        10                      Reports of select committees.

        11                      Communications and reports from

        12       state officers.

        13                      Motions and resolutions.

        14       Anything?  Senator Rath.

        15                      SENATOR RATH:  On behalf of

        16       Senator Skelos, please remove the sponsor's star

        17       from Calendar 588.

        18                      ACTING PRESIDENT HOBLOCK:  Star

        19       Calendar 588.

        20                      SENATOR RATH:  Remove the star.

        21                      ACTING PRESIDENT HOBLOCK:  Remove

        22       the star.

        23                      SENATOR RATH:  Remove the star.











                                                             
7663

         1                      ACTING PRESIDENT HOBLOCK:  I'm

         2       sorry.  That's better than starring.

         3                      SENATOR RATH:  Mr. President.

         4                      ACTING PRESIDENT HOBLOCK:  Yes,

         5       Senator Rath.

         6                      SENATOR RATH:  On behalf of

         7       Senator Cook, please place a sponsor's star on

         8       Calendar 108.

         9                      ACTING PRESIDENT HOBLOCK:

        10       Calendar 108, replace the sponsor's star.

        11                      Senator Maziarz.

        12                      SENATOR MAZIARZ:  Thank you, Mr.

        13       President.  On page 36, I offer the following

        14       amendments to Calendar Number 977, Senate Print

        15       2663, and ask that said bill retain its place on

        16       Third Reading Calendar.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Amendments received.

        19                      SENATOR MAZIARZ:  Mr. President,

        20       on page number 21, I offer the following

        21       amendments to Calendar 733, Senate Print Number

        22       4017A, and ask that said bill retain its place

        23       on Third Reading Calendar.











                                                             
7664

         1                      ACTING PRESIDENT HOBLOCK:

         2       Amendments received.

         3                      SENATOR MAZIARZ:  Mr. President,

         4       on page number 18, I offer the following

         5       amendments to Calendar Number 668, Senate Print

         6       Number 3456, and ask that said bill retain its

         7       place on Third Reading Calendar.

         8                      ACTING PRESIDENT HOBLOCK:  O.K.

         9       Amendments received.

        10                      Senator Maziarz.

        11                      SENATOR MAZIARZ:  Mr. President,

        12       I wish to call up my bill, Print Number 3325,

        13       recalled from the Assembly which is now at the

        14       desk.

        15                      ACTING PRESIDENT HOBLOCK:  Clerk

        16       will read.

        17                      THE SECRETARY:  Calendar Number

        18       502, by Senator Sears, Senate Print 3325, an act

        19       to amend the General Business Law, in relation

        20       to prohibiting presentment of a Social Security

        21       number.

        22                      ACTING PRESIDENT HOBLOCK:

        23       Senator Maziarz.











                                                             
7665

         1                      SENATOR MAZIARZ:  Mr. President,

         2       I now move to reconsider the vote by which this

         3       bill was passed.

         4                      ACTING PRESIDENT HOBLOCK:  Clerk

         5       will call the roll.

         6                      (The Secretary called the roll on

         7       reconsideration. )

         8                      THE SECRETARY:  Ayes 39.

         9                      ACTING PRESIDENT HOBLOCK:

        10       Senator Maziarz.

        11                      SENATOR MAZIARZ:  Mr. President,

        12       I now offer the following amendments.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Amendments received.

        15                      Senator.

        16                      SENATOR MAZIARZ:  Mr. President,

        17       I wish to call up my bill, Print Number 3325,

        18       recalled from the Assembly which is now at the

        19       desk.

        20                      ACTING PRESIDENT HOBLOCK:  Clerk

        21       will read.

        22                      THE SECRETARY:  Calendar Number

        23       858, by Senator Goodman, Senate Print 3466, an











                                                             
7666

         1       act to amend the Transportation Law, in relation

         2       to disclosure by common carriers of liability

         3       and protection.

         4                      ACTING PRESIDENT HOBLOCK:

         5       Senator Maziarz.

         6                      SENATOR MAZIARZ:  Mr. President,

         7       I now move to reconsider the vote by which this

         8       bill was passed.

         9                      ACTING PRESIDENT HOBLOCK:  Clerk

        10       will call the roll.

        11                      (The Secretary called the roll on

        12       reconsideration. )

        13                      THE SECRETARY:  Ayes 43.

        14                      SENATOR MAZIARZ:  Mr. President,

        15       I now offer the following amendments.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Amendments received.

        18                      Senator LaValle.

        19                      SENATOR LAVALLE:  Mr. President,

        20       would you place a sponsor's star on Calendar

        21       Number 245, please.

        22                      ACTING PRESIDENT HOBLOCK:

        23       Calendar Number 245, place a sponsor's star.











                                                             
7667

         1                      We have a substitution from the

         2       Assembly.  Clerk will read.

         3                      THE SECRETARY:  Senator Maltese

         4       moves to discharge from the Committee on Rules

         5       Assembly Bill Number 4814A, and substitute it

         6       for the identical Calendar Number 279.

         7                      ACTING PRESIDENT HOBLOCK:

         8       Substitution ordered.

         9                      Senator Bruno.

        10                      SENATOR BRUNO:  Mr. President,

        11       call for an immediate meeting of the Rules

        12       Committee in Room 332.

        13                      ACTING PRESIDENT HOBLOCK:  There

        14       is an immediate meeting of the Rules Committee

        15       in Room 332.

        16                      Senator Bruno.

        17                      SENATOR BRUNO:  Mr. President,

        18       can we at this time take up the non-controvers

        19       ial calendar.

        20                      ACTING PRESIDENT HOBLOCK:  Clerk

        21       will read the non-controversial calendar.

        22                      THE SECRETARY:  On page 4,

        23       Calendar Number 77, by Senator Levy, Senate











                                                             
7668

         1       Print -

         2                      SENATOR PATERSON:  Lay aside.

         3                      ACTING PRESIDENT HOBLOCK:  Bill

         4       laid aside.

         5                      THE SECRETARY:  Calendar Number

         6       195, by member of the Assembly Pfeffer, Assembly

         7       Print 4130A, an act to amend the Executive Law,

         8       in relation to empowering the state Office for

         9       the Aging to conduct a program of education.

        10                      ACTING PRESIDENT HOBLOCK:  Read

        11       the last section.

        12                      THE SECRETARY:  Section 2.  This

        13       act shall take effect immediately.

        14                      ACTING PRESIDENT HOBLOCK:  Call

        15       the roll.

        16                      (The Secretary called the roll. )

        17                      THE SECRETARY:  Ayes 43.

        18                      ACTING PRESIDENT HOBLOCK:  The

        19       bill is passed.

        20                      THE SECRETARY:  Calendar Number

        21       494, by Senator Cook, Senate Print 3155A, an act

        22       to amend the General City Law, the Town Law and

        23       the Village Law, in relation to cluster











                                                             
7669

         1       development.

         2                      SENATOR PATERSON:  Lay aside,

         3       please.

         4                      ACTING PRESIDENT HOBLOCK:  Bill

         5       is laid aside.

         6                      THE SECRETARY:  Calendar Number

         7       595, by Senator Saland, Senate Print 2597, an

         8       act to amend the Family Court Act, in relation

         9       to restitution and community service.

        10                      ACTING PRESIDENT HOBLOCK:  Read

        11       read the last section.

        12                      THE SECRETARY:  Section 9.  This

        13       act shall take effect on the 1st day of

        14       November.

        15                      ACTING PRESIDENT HOBLOCK:  Call

        16       the roll.

        17                      (The Secretary called the roll. )

        18                      THE SECRETARY:  Ayes 43.

        19                      ACTING PRESIDENT HOBLOCK:  The

        20       bill is passed.

        21                      THE SECRETARY:  Calendar Number

        22       596, by Senator Saland, Senate Print 3561, an

        23       act to amend the Family Court Act, in relation











                                                             
7670

         1       to expanding the jurisdiction of the Family

         2       Court to enforce the compulsory attendance law.

         3                      ACTING PRESIDENT HOBLOCK:  Read

         4       the last section.

         5                      THE SECRETARY:  Section 2.  This

         6       act shall take effect immediately.

         7                      ACTING PRESIDENT HOBLOCK:  Call

         8       the roll.

         9                      (The Secretary called the roll. )

        10                      THE SECRETARY:  Ayes 45.

        11                      ACTING PRESIDENT HOBLOCK:  The

        12       bill is passed.

        13                      THE SECRETARY:  Calendar Number

        14       597, by Senator Saland, Senate Print 3943, an

        15       act to amend the Family Court Act and the

        16       Criminal Procedure Law, in relation to family

        17       offenses.

        18                      ACTING PRESIDENT HOBLOCK:  Read

        19       the last section.

        20                      THE SECRETARY:  Section 3.  This

        21       act shall take effect on the 1st day of

        22       November.

        23                      ACTING PRESIDENT HOBLOCK:  Call











                                                             
7671

         1       the roll.

         2                      (The Secretary called the roll. )

         3                      THE SECRETARY:  Ayes 45.

         4                      ACTING PRESIDENT HOBLOCK:  The

         5       bill is passed.

         6                      THE SECRETARY:  Calendar Number

         7       598, by Senator Saland, Senate Print 4039, an

         8       act to amend the Social Services Law, in

         9       relation to the capacity of foster family

        10       boarding homes.

        11                      ACTING PRESIDENT HOBLOCK:  Read

        12       the last section.

        13                      THE SECRETARY:  Section 3.  This

        14       act shall take effect immediately.

        15                      ACTING PRESIDENT HOBLOCK:  Call

        16       the roll.

        17                      (The Secretary called the roll. )

        18                      THE SECRETARY:  Ayes 45.

        19                      ACTING PRESIDENT HOBLOCK:  The

        20       bill is passed.

        21                      THE SECRETARY:  Calendar Number

        22       654, by Senator LaValle, Senate Print 2790, an

        23       act to amend the Executive Law, in relation to











                                                             
7672

         1       population requirements for municipalities

         2       wishing to establish Youth Bureaus.

         3                      ACTING PRESIDENT HOBLOCK:  Read

         4       the last section.

         5                      THE SECRETARY:  Section 2.  This

         6       act shall take effect immediately.

         7                      ACTING PRESIDENT HOBLOCK:  Call

         8       the roll.

         9                      (The Secretary called the roll. )

        10                      THE SECRETARY:  Ayes 45.

        11                      ACTING PRESIDENT HOBLOCK:  The

        12       bill is passed.

        13                      THE SECRETARY:  Calendar Number

        14       706, by member of the Assembly Kaufman, Assembly

        15       Print 2817, an act to amend the State

        16       Administrative Procedure Act, in relation to

        17       required index by name and subject of all

        18       written final decisions.

        19                      ACTING PRESIDENT HOBLOCK:  Read

        20       the last section.

        21                      THE SECRETARY:  Section 2.  This

        22       act shall take effect on the 1st day of

        23       October.











                                                             
7673

         1                      ACTING PRESIDENT HOBLOCK:  Call

         2       the roll.

         3                      (The Secretary called the roll. )

         4                      THE SECRETARY:  Ayes 45.

         5                      ACTING PRESIDENT HOBLOCK:  The

         6       bill is passed.

         7                      THE SECRETARY:  Calendar Number

         8       743, by Senator Seward, Senate Print 3827B, an

         9       act to authorize the city of Ithaca in the

        10       county of Tompkins to discontinue the use of

        11       certain real property owned for park purposes.

        12                      SENATOR PATERSON:  Lay aside.

        13                      ACTING PRESIDENT HOBLOCK:

        14       There's no home rule message at the desk.  The

        15       bill is laid aside.

        16                      THE SECRETARY:  Calendar Number

        17       854, by Senator Marchi, Senate Print 2379, an

        18       act to amend the Public Authorities Law, in

        19       relation to directing the Triborough Bridge and

        20       Tunnel Authority to establish a system of one

        21       directional toll collection on the

        22       Verrazano-Narrows Bridge.

        23                      SENATOR PATERSON:  Lay aside.











                                                             
7674

         1                      ACTING PRESIDENT HOBLOCK:  Bill

         2       is laid aside.

         3                      THE SECRETARY:  Calendar Number

         4       861, by Senator Spano, Senate Print Number

         5       3975B, an acted to amend the Public Authorities

         6       Law, in relation to the cost of station

         7       operation and maintenance.

         8                      SENATOR PATERSON:  Lay aside.

         9                      ACTING PRESIDENT HOBLOCK:  Lay

        10       the bill aside.

        11                      THE SECRETARY:  Calendar Number

        12       868, by Senator Levy, Senate Print 4817, an act

        13       to amend the Vehicle and Traffic Law, in

        14       relation to the extension of time for the entry

        15       of default judgments for traffic infractions.

        16                      ACTING PRESIDENT HOBLOCK:  Read

        17       the last section.

        18                      SENATOR PATERSON:  Lay aside.

        19                      ACTING PRESIDENT HOBLOCK:  Lay

        20       the bill aside.

        21                      THE SECRETARY:  Calendar Number

        22       937, by Senator Saland.

        23                      SENATOR PATERSON:  Lay aside.











                                                             
7675

         1                      ACTING PRESIDENT HOBLOCK:  Bill

         2       is laid aside.

         3                      THE SECRETARY:  Calendar Number

         4       947, by Senator Rath, Senate Print 3014, an act

         5       to amend the Domestic Relations Law, the Social

         6       Services Law, and the Surrogate's Court

         7       Procedure Act.

         8                      SENATOR RATH:  Lay aside for the

         9       day.

        10                      ACTING PRESIDENT HOBLOCK:  Bill

        11       is laid aside for the day at the request of the

        12       sponsor.

        13                      Senator Bruno.

        14                      SENATOR BRUNO:  Mr. President,

        15       can we now take up the controversial calendar.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Secretary will read non... the controversial

        18       calendar.

        19                      THE SECRETARY:  On page 4,

        20       Calendar Number 77, by Senator Levy, Senate

        21       Print 328B, an act to amend the Public

        22       Authorities Law and the Railroad Law, in

        23       relation to operating a self-propelled rail











                                                             
7676

         1       passenger car.

         2                      SENATOR PATERSON:  Explanation.

         3                      ACTING PRESIDENT HOBLOCK:

         4       Explanation is asked for.  Senator Levy.

         5                      SENATOR LEVY:  Just lay it aside

         6       temporarily.

         7                      ACTING PRESIDENT HOBLOCK:  Bill

         8       is laid aside temporarily.  Clerk -- Secretary

         9       will read.

        10                      THE SECRETARY:  Calendar Number

        11       494, by Senator Cook, Senate Print 3155B, an act

        12       to amend the General City Law, the Town Law and

        13       the Village Law, in relation to cluster

        14       development.

        15                      SENATOR PATERSON:  Explanation.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Explanation asked for.  Bill is laid aside for

        18       the day.

        19                      SENATOR BRUNO:  Lay aside.

        20                      THE SECRETARY:  Calendar Number

        21       743, by Senator Seward, Senate Print 3827B, an

        22       act to authorize the city of Ithaca in the

        23       county of Tompkins to discontinue the use of











                                                             
7677

         1       certain real property owned for park purposes.

         2                      ACTING PRESIDENT HOBLOCK:  Lay

         3       aside for home rule message.

         4                      THE SECRETARY:  Calendar Number

         5       854, by Senator Marchi, Senate Print 2379, an

         6       act to amend the Public Authorities Law, in

         7       relation to directing the Triborough Bridge and

         8       Tunnel Authority to establish a one-directional

         9       system of toll collection.

        10                      SENATOR PATERSON:  How about an

        11       explanation?

        12                      ACTING PRESIDENT HOBLOCK:

        13       Explanation asked for.  Lay that bill aside

        14       temporarily.

        15                      Secretary will read.

        16                      THE SECRETARY:  Calendar Number

        17       861, by Senator Spano, Senate Print 3975B, an

        18       acted to amend the Public Authorities Law, in

        19       relation to the cost of station operation and

        20       maintenance.

        21                      SENATOR PATERSON:  Explanation.

        22                      ACTING PRESIDENT HOBLOCK:  Lay

        23       that bill aside temporarily.











                                                             
7678

         1                      THE SECRETARY:  Calendar Number

         2       868, by Senator levy, Senate Print 4718, an act

         3       to amend the Vehicle and Traffic Law, in

         4       relation to the extension of time for the entry

         5       of default judgments for traffic infractions.

         6                      SENATOR PATERSON:  Explanation.

         7                      SENATOR LEVY:  Yes, Senator

         8       Paterson.  There was a huge backlog in Nassau

         9       County prior to the time that we created a

        10       Parking Violations Bureau as it related to those

        11       type of infractions that were pending and were

        12       not answered by the people that were -- either

        13       received tickets or summonses or even were

        14       arrested and we did -- we did the proposal that

        15       is contained in this bill previously.  It had a

        16       sunset on it and last year, unfortunately, that

        17       sunset expired without us taking legislative

        18       action to extend this power to deal with this

        19       huge backlog.

        20                      Now, Nassau County has requested

        21       this bill and sought the extension of the power

        22       that existed before the sunset and that's what

        23       this bill does.











                                                             
7679

         1                      ACTING PRESIDENT HOBLOCK:

         2       Senator Paterson.

         3                      SENATOR PATERSON:  Mr. President,

         4       if Senator Levy would be kind enough to yield to

         5       a question.

         6                      ACTING PRESIDENT HOBLOCK:

         7       Senator Levy, do you yield?

         8                      SENATOR LEVY:  Yes.

         9                      SENATOR PATERSON:  Senator Levy,

        10       I was just curious, you are extending this from

        11       two years to seven years to clear up this

        12       backlog.  Do you think it's going to take seven

        13       ears years to get to all this?  I would have

        14       thought it would have taken two or three years.

        15       How about a month?  No.

        16                      SENATOR LEVY:  All this bill

        17       does, Senator Paterson, is to reinstitute -

        18       reinstitute the power that expired on October

        19       the 1st of 1994.

        20                      SENATOR PATERSON:  That isn't the

        21       question I asked, Senator.

        22                      SENATOR LEVY:  It really is

        23       extending -- Senator Paterson, it really is an











                                                             
7680

         1       extender through October the 1st of 1996, and

         2       the power for Nassau County will end on that

         3       date, but what it does is to permit -- to permit

         4       the pleas and the default judgments for the

         5       period set forth in the bill.

         6                      SENATOR PATERSON:  The only other

         7       question I had, Senator, was regarding the

         8       fiscal impact that you would project to the

         9       state of extending it.

        10                      SENATOR LEVY:  Well, the -

        11       Senator, by -- by permitting the extension, all

        12       this bill really does is permit the local

        13       government, when they have -- when they have

        14       given summonses, tickets or have arrested

        15       somebody for a violation and the people have

        16       ignored the process, to bring them into court.

        17       All it does is give them the opportunity of more

        18       time to bring about a conclusion to the case and

        19       the collection of monies that are owed -- owed

        20       both the county of Nassau and monies that the

        21       state shares in, so it's certainly more than

        22       revenue neutral because it's going to generate

        23       dollars both for the county and state through











                                                             
7681

         1       the collection of the fine monies.

         2                      SENATOR PATERSON:  Explanation

         3       satisfactory, Mr. President.

         4                      ACTING PRESIDENT HOBLOCK:

         5       Explanation satisfactory.  The Secretary will

         6       read the last section.

         7                      THE SECRETARY:  Section 2.  This

         8       act shall take effect immediately.

         9                      ACTING PRESIDENT HOBLOCK:  Call

        10       the roll.

        11                      (The Secretary called the roll. )

        12                      THE SECRETARY:  Ayes 48, nays

        13       one, Senator Solomon recorded in the negative.

        14                      ACTING PRESIDENT HOBLOCK:  The

        15       bill is passed.

        16                      THE SECRETARY:  Calendar Number

        17       937, by Senator Saland, Senate Print 4009A, an

        18       act to amend the Tax Law and others, in relation

        19       to enacting the Omnibus Mandate Relief Act.

        20                      SENATOR PATERSON:  Explanation.

        21                      VOICE:  Lay aside for the day.

        22                      ACTING PRESIDENT HOBLOCK:  Bill

        23       is laid aside for the day.











                                                             
7682

         1                      Senator Skelos.

         2                      SENATOR SKELOS:  Mr. President,

         3       would you call up Calendar Number 77, please, by

         4       Senator Levy.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Secretary will read.

         7                      THE SECRETARY:  Calendar Number

         8       77, by Senator Levy, Senate Print 328B, an act

         9       to amend the Public Authorities Law and the

        10       Railroad Law, in relation to operating a self

        11       propelled rail passenger car.

        12                      SENATOR PATERSON:  Explanation.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Explanation asked for.

        15                      SENATOR LEVY:  Senator Paterson,

        16       this bill has, fortunately, been before this

        17       house for a number of years and, unfortunately,

        18       has yet to pass in the other house

        19       notwithstanding the fact that a couple of years

        20       back, and I know, I think Senator Goodman's

        21       committee went into an accident where we had a

        22       drunken motorman operating a train on the

        23       Transit Authority, and multiple deaths resulted











                                                             
7683

         1       from that incident.

         2                      Our friends in Washington have

         3       set a .04 standard for the operation -

         4       operation of a train.  What this bill does -

         5       and we worked with the federal Railway

         6       Administration in putting this bill together -

         7       is to say if you -- if you operate a train and

         8       you have greater than a .04 BAC, and there is an

         9       injury -- serious injury or death, we make that

        10       a felony in the state of New York.

        11                      SENATOR PATERSON:  Thank you.

        12                      ACTING PRESIDENT HOBLOCK:

        13       Senator Paterson.

        14                      SENATOR PATERSON:  Thank you, Mr.

        15       President.

        16                      I have a couple of questions for

        17       Senator Levy, if he is willing to answer them.

        18                      ACTING PRESIDENT HOBLOCK: Senator

        19       Levy, will you yield to a couple of questions?

        20                      SENATOR LEVY:  Yes, certainly.

        21                      SENATOR PATERSON:  Senator Levy,

        22       have we exceeded the federal standard by

        23       imposing this .04 delineation as to what would











                                                             
7684

         1       be the standard of test for the motorman or the

         2       operator of the self-propelled vehicle?

         3                      SENATOR LEVY:  Senator Paterson,

         4       we have not, and the language of this bill was

         5       cleared with the Federal Railway Administration

         6       which is in support of the legislation.

         7                      SENATOR PATERSON:  Mr. President,

         8       if the Senator would continue to yield.

         9                      ACTING PRESIDENT HOBLOCK:

        10       Senator Levy, continue to yield?

        11                      SENATOR LEVY:  Yes, I will.

        12                      SENATOR PATERSON:  Senator, how

        13       are the tests conducted in these types of

        14       situations? The reason I raise a concern is

        15       that, if you had an accident and you conducted,

        16       say, for instance, a urine test rather than a

        17       blood test, and your bill seems to make all

        18       tests valid, sometimes medically the trauma of

        19       the accident might cause an individual to be

        20       incapable of responding to the test which would

        21       maybe accrue some kind of suspicion or some kind

        22       of stigma to the individual when, in fact,

        23       they're suffering from a medical injury.











                                                             
7685

         1                      SENATOR LEVY:  Well, Senator,

         2       that would be litigated the same way, and those

         3       arguments are made in drunk driving and drunk

         4       impaired cases whenever we have a similar

         5       situation like this, Senator Paterson, so all

         6       this bill is really doing is -- is taking the

         7       law as it exists today as it relates to motor

         8       vehicles and transposing it over to someone who

         9       is operating a train in the state of New York.

        10                      SENATOR PATERSON:  All right.

        11       Thank you very much, Senator Levy.

        12                      On the bill.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Senator Paterson, on the bill.

        15                      SENATOR PATERSON:  I understand

        16       what Senator Levy is saying, and it can be

        17       litigated in that particular way and

        18       particularly in an accident as severe as the one

        19       he described which occurred on 14th Street in

        20       Manhattan about two years ago.  You had a

        21       situation where the inability to test the motor

        22       man was actually a factor, and it was a tragic

        23       accident in which many lives were lost.











                                                             
7686

         1                      But in other circumstances where

         2       there is just some kind of an accident and there

         3       is no injury, I would just caution all of us in

         4       the administration of this law that there are

         5       individuals who are traumatized in accidents and

         6       that, if we had an standardized test, I would

         7       suggest a blood test.  We might be able to

         8       determine whether or not there was the kind of

         9       blood to alcohol ratio or any other substance

        10       that might be involved.  I just think it would

        11       be greater protection for society and also

        12       greater protection for the individual who is not

        13       in violation of any codes or standards when

        14       these tests are actually conducted.

        15                      Otherwise, I suppose I would take

        16       note of the fact that the federal standard, I

        17       would tend to think, would -- would cover this,

        18       but because of the fact that these accidents are

        19       very severe and people who use the subways in

        20       New York City or use other vehicular

        21       transportation that are piloted by someone else

        22       are reasonably expecting that there would be a

        23       standard of care that would be demonstrated and











                                                             
7687

         1       the test definitely establishes that.

         2                      ACTING PRESIDENT HOBLOCK:

         3       Secretary will read the last section.

         4                      THE SECRETARY:  Section 5.  This

         5       act shall take effect on the 1st day of

         6       November.

         7                      ACTING PRESIDENT HOBLOCK:  Call

         8       the roll.

         9                      (The Secretary called the roll. )

        10                      THE SECRETARY:  Ayes 53.

        11                      ACTING PRESIDENT HOBLOCK:  The

        12       bill is passed.

        13                      Senator Bruno.

        14                      SENATOR BRUNO:  Yes, Mr.

        15       President.  Can we at this time recognize

        16       Senator Maltese?

        17                      ACTING PRESIDENT HOBLOCK:

        18       Senator Maltese.

        19                      SENATOR MALTESE:  Mr. President,

        20       as many of my colleagues are aware, this week

        21       end is -- has been the week end of the Italian

        22       American Legislators Conference.  With 51

        23       members, it is one of the largest conferences of











                                                             
7688

         1       the state Legislature, and we're particularly

         2       honored at this particular conference with

         3       tonight's ceremony that we are honoring the

         4       Senate Majority Leader.

         5                      Present with us today in the

         6       chamber are a number of representatives, men and

         7       women representing constituencies from across

         8       the state, not only from the Conference of

         9       Italian-American legislators but from the UFT

        10       and from the New York City Central Labor

        11       Council, and I would ask most respectfully that

        12       you recognize them.

        13                      ACTING PRESIDENT HOBLOCK:  Thank

        14       you, Senator Maltese.

        15                      It's a great pleasure to join you

        16       and others in recognizing these dignitaries and

        17       extend to them our courtesies, cordiality and

        18       hospitality.  Thank you.

        19                      (Applause)

        20                      SENATOR SKELOS:  Mr. President.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Senator Skelos.

        23                      SENATOR SKELOS:  I believe there











                                                             
7689

         1        -- if we could return to reports of standing

         2       committees.  I believe there's a report of the

         3       Rules Committee at the desk.  I ask that it be

         4       read.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Secretary will read.

         7                      THE SECRETARY:  Senator Bruno

         8       from the Committee on Rules reports the

         9       following bills:

        10                      Senate Print 700, by Senator

        11       Saland, an act to amend the Tax Law, in relation

        12       to exempting coin-operated car wash receipts

        13       from the sales and compensating use tax;

        14                      3349, by Senator Skelos, an act

        15       to amend Chapter 846 of the Laws of 1970,

        16       amending the County Law, relating to payment in

        17       lieu of taxes for property acquired for park or

        18       recreational purposes;

        19                      3395, by Senator Rath, an act to

        20       amend the State Administrative Procedure Act, in

        21       relation to requiring agencies to enact written

        22       rules;

        23                      3847, by Senator Tully, an act to











                                                             
7690

         1       amend the Environmental Conservation Law, in

         2       relation to lifetime resident combined hunting,

         3       fishing and big game licenses for senior

         4       citizens;

         5                      3848, by Senator Tully, an act to

         6       amend the Environmental Conservation Law and the

         7       State Finance Law, in relation to enacting the

         8       Voluntary Remediation Act of 1995;

         9                      3849, by Senator Tully, an act to

        10       amend the Environmental Conservation Law, and

        11       the Public Health Law, in relation to security

        12       interests in property;

        13                      3874A, by Senator Nanula, an

        14       acted to authorize the city of Niagara Falls to

        15       discontinue use of certain park land;

        16                      3921, by Senator Sears, an act to

        17       amend the Environmental Conservation Law, in

        18       relation to increasing civil penalties

        19       associated with the unlawful taking of fish and

        20       wildlife;

        21                      4408, by Senator Nozzolio, an act

        22       to amend the Civil Practice Law and Rules, and

        23       the Court of Claims Act and the Correction Law,











                                                             
7691

         1       in relation to prisoner litigation reform;

         2                      4437, by Senator Lack, an act to

         3       amend the Estates, Powers and Trusts Law and the

         4       General Obligations Law, in relation to

         5       renunciations of certain property interests;

         6                      4439, by Senator Libous, an act

         7       to amend the Criminal Procedure Law, in relation

         8       to venue for an application for an order of

         9       retention of an incapacitated defendant;

        10                      4610, by Senator Lack, an act to

        11       amend the Surrogate's Court Procedure Act, in

        12       relation to transfer of actions or proceedings;

        13                      4617, by Senator Lack, an act to

        14       amend the Estates, Powers and Trusts Law, in

        15       relation to providing for payment of funds over

        16       $10,000;

        17                      4618, by Senator Lack, an act to

        18       amend the Surrogate's Court Procedure Act, in

        19       relation to the commissions of multiple

        20       executors;

        21                      4673, by Senator Tully, an act to

        22       amend the Environmental Conservation Law, in

        23       relation to exempting certain bakeries from











                                                             
7692

         1       regulation pursuant to the Clean Air Act;

         2                      4680, by Senator Lack, an act to

         3       amend the Surrogate's Court Procedure Act, in

         4       relation to providing for an aunt or uncle of a

         5       decedent who dies intestate to act as a

         6       voluntary administrator;

         7                      4681, by Senator Lack, an act to

         8       amend the Surrogate's Court Procedure Act, in

         9       relation to the revocation, modification or

        10       suspension of letters testamentary;

        11                      4831, by Senator Maziarz, an act

        12       to amend the General Obligations Law, in

        13       relation to an owner's, lessee's or occupant's

        14       off-premises duty to keep premises safe for

        15       entry;

        16                      5103, by Senator Saland, an act

        17       to amend the Domestic Relations Law, in relation

        18       to special relief of matrimonial actions;

        19                      5107, by Senator Saland, an act

        20       to amend the Family Court Act, in relation to

        21       the submission of transcripts in Family Court;

        22                      5195, by Senator Skelos, an act

        23       to amend the Town Law, in relation to the











                                                             
7693

         1       abolition of the additional office of supervisor

         2       of the town of Hempstead;

         3                      5212, by Senator Marcellino, an

         4       act to amend the Criminal Procedure Law, in

         5       relation to corrective remedies;

         6                      5221, by Senator Present, an act

         7       to amend the General Obligations Law, in

         8       relation to the powers of the development of

         9       railroad facilities by the county of Chautauqua;

        10       and

        11                      5220, by Senator Sears, an act to

        12       amend the General Business Law and the Personal

        13       Property Law, in relation to the cancellation of

        14       personal emergency response service agreements.

        15                      All bills ordered directly for

        16       third reading.

        17                      SENATOR SKELOS:  Mr. President, I

        18       move we accept the report of the Rules

        19       Committee.

        20                      ACTING PRESIDENT HOBLOCK:  Motion

        21       of Senator Skelos, all in favor of accepting the

        22       report of the Rules Committee signify by saying

        23       aye.











                                                             
7694

         1                      (Response of "Aye.")

         2                      Opposed nay.

         3                      (There was no response. )

         4                      The report is accepted.

         5                      Senator Skelos.

         6                      SENATOR SKELOS:  Mr. President,

         7       at this time if we could return to motions and

         8       resolutions.  I believe there is a resolution

         9       sponsored by Senator Holland at the desk.  I

        10       would ask that it be read in its entirety and

        11       adopted.

        12                      ACTING PRESIDENT HOBLOCK:

        13       Secretary will read.

        14                      THE SECRETARY:  By Senator

        15       Holland, Legislative Resolution, commending the

        16       students of the Ramapo Senior High School upon

        17       the occasion of their participation in the 1995

        18       Humanitarian Relief Program for the children and

        19       people of Chernobyl.

        20                      WHEREAS, it is the sense of this

        21       legislative body to act in accord with its long

        22       standing traditions honoring the achievements of

        23       its promising citizens and leaders of tomorrow,











                                                             
7695

         1       whose character and achievement best exemplify

         2       the ideals and values cherished by this great

         3       state and nation; and

         4                      WHEREAS, this legislative body is

         5       justly proud to commend the students of the

         6       Ramapo Senior High School upon the occasion of

         7       their participation in the 1995 Humanitarian

         8       Relief Program for the children and people of

         9       Chernobyl; and

        10                      WHEREAS, 17 students provided

        11       moral support for those still suffering from the

        12       effects of the Chernobyl nuclear accident by

        13       singing and dancing over a 12-day visit to

        14       Belarus;

        15                      The students raised the air fare

        16       money themselves by fund-raising in the school

        17       and community from the raffles, sale of cheese

        18       cakes, snow brushes, gift supplies and selling

        19       candy and fruit at various school activities,

        20       plus some very generous individual donations,

        21       the students were able to depart from JFK

        22       Airport on March 22nd, 1995 for the trip of a

        23       lifetime; with the continued support and











                                                             
7696

         1       cooperation of Austrian Airlines, each student

         2       sacrificed a second piece of luggage so that, in

         3       addition to the two sea containers of medicines

         4       already sent ahead, additional medicines could

         5       be taken on the plane;

         6                      During their stay in Belarus, the

         7       students performed 13 times, visited and/or

         8       performed in six hospitals, visited and/or

         9       performed in six schools, and appeared on

        10       Belarus national television five times.  Some

        11       highlights of their stay included performing for

        12       the Belarus Foreign Minister Vladimir Syanko,

        13       and U. S. Ambassador Kenneth Yalowitz at the

        14       American Embassy;

        15                      In addition, the students had

        16       lunch with, and performed for the Belarus

        17       Military who provided the group with a bus for

        18       their use during their stay in Belarus; hotel

        19       accommodations in Belarus were provided by the

        20       General Federation of Trade Unions.  The

        21       American group was the first group of Americans

        22       to ever stay at the Trade Union Sanitorium;

        23       during one of their free evenings the students











                                                             
7697

         1       put on a show for the residents, as well as

         2       participating in the disco afterward;

         3                      The students also had the

         4       opportunity to live in homes during the second

         5       Ramapo visit to a Kolkhoz or collective farm in

         6       the Nesvizh District, as well as be the first

         7       American delegation to visit and again stay in

         8       private homes in the town of Sharkovshina four

         9       hours north of Minsk;

        10                      Throughout their entire period of

        11       involvement, a period of purposeful learning and

        12       productive community service, the students of

        13       the Ramapo Senior High School stood constant in

        14       dignity and good grace representing the families

        15       and school community with honor and distinction;

        16       and

        17                      WHEREAS, rare indeed is the

        18       impressive dedication and accomplishment shown

        19       by these young people for the benefit of others

        20       which the students of the Ramapo Senior High

        21       School have displayed.

        22                      NOW, THEREFORE, BE IT RESOLVED

        23       that this legislative body pause in its











                                                             
7698

         1       deliberations to accommodate the students of the

         2       Ramapo Senior High School upon the occasion of

         3       their participation in the 1995 Humanitarian

         4       Relief Program for the children and people of

         5       Chernobyl; and

         6                      BE IT FURTHER RESOLVED that

         7       copies of this resolution, suitably engrossed,

         8       be transmitted to Ramapo Senior High School and

         9       Don Cairns, President of the Board of Directors

        10       of the Ramapo Children for Chernobyl Fund.

        11                      ACTING PRESIDENT HOBLOCK:

        12       Senator Holland.

        13                      SENATOR HOLLAND:  Thank you, Mr.

        14       President.

        15                      We are indeed honored to have

        16       some of the students from Ramapo High School

        17       here today, and it is my pleasure to introduce

        18       them to this house along with their instructors,

        19       Don Cairns and Patrick DeFrancisco.  These young

        20       people have had an opportunity to visit Belarus

        21       for two weeks, almost two weeks, stay in

        22       cooperative or collective farms, see and visit

        23       the schools and the hospitals of Belarus, and











                                                             
7699

         1       they are -- this program is ten years old.

         2                      They have been able to collect

         3       over $12 million worth of medical supplies and

         4       take them to the hospitals of Belarus and

         5       Moscow.  It was all started when a group of

         6       these students were there during the Chernobyl

         7       explosion about 11 years ago, 12 years ago, 10

         8       years ago.  I congratulate these students.

         9       They've done a fantastic job.  Their instructors

        10       and teachers have done a fantastic job.  They

        11       are encouraging ties and communications and, as

        12       they said, hope and love between the students of

        13       Belarus in Russia and the students of the United

        14       States.

        15                      Many trips of students from

        16       Ramapo High School have gone over to Belarus in

        17       Russia and some Russian students have come back

        18       over here.  I congratulate the whole program,

        19       all of the people who have been involved, all of

        20       the people who have donated medicines.  As I

        21       said, I believe I was there three years ago with

        22       some of the students, and if you had been into a

        23       hospital in Belarus, or Russia, they are 1930 or











                                                             
7700

         1       1940 editions of the hospitals here in the

         2       United States.

         3                      You people are doing a great

         4       job.  I wish you would just stand up for one

         5       minute and let these people in the galleries say

         6       thanks for all the good work you do.

         7                      (Applause. )

         8                      ACTING PRESIDENT HOBLOCK:  The

         9       question is on the resolution.  All those in

        10       favor signify by saying aye.

        11                      (Response of "Aye.")

        12                      Opposed nay.

        13                      (There was no response. )

        14                      The resolution is adopted.

        15                      Senator Skelos.

        16                      SENATOR SKELOS:  Mr. President,

        17       on today's calendar, Calendar Number 854, by

        18       Senator Marchi, if we could lay that aside for

        19       the day.

        20                      ACTING PRESIDENT HOBLOCK:

        21       Calendar 854 laid aside for the day.

        22                      Senator Skelos.

        23                      SENATOR SKELOS:  Yes, at this











                                                             
7701

         1       time, Mr. President, if we could take up

         2       Supplemental Calendar Number 1,

         3       non-controversial.

         4                      ACTING PRESIDENT HOBLOCK:  The

         5       Secretary will read the Supplemental Calendar

         6       Number 1, non-controversial.

         7                      THE SECRETARY:  Calendar Number

         8       1093, by Senator Saland, Senate Print 700, an

         9       act to amend the Tax Law, in relation to

        10       exempting coin-operated car wash receipts from

        11       sales and compensating use tax.

        12                      ACTING PRESIDENT HOBLOCK:  A

        13       local fiscal impact note is at the desk.  Read

        14       the last section.

        15                      THE SECRETARY:  Section 2.  This

        16       act shall take effect on the 1st day of

        17       September.

        18                      ACTING PRESIDENT HOBLOCK:  Call

        19       the roll.

        20                      (The Secretary called the roll. )

        21                      THE SECRETARY:  Ayes 53.

        22                      ACTING PRESIDENT HOBLOCK:  The

        23       the bill is passed.











                                                             
7702

         1                      THE SECRETARY:  Calendar Number

         2       1094, by Senator Skelos, Senate Print 3349, an

         3       act to amend Chapter 146 of the Laws of 1970,

         4       amending the County Law.

         5                      SENATOR PATERSON:  Lay aside,

         6       please, Mr. President.

         7                      ACTING PRESIDENT HOBLOCK:  Lay

         8       aside.

         9                      THE SECRETARY:  Calendar Number

        10       1095, by Senator Rath, Senate Print 3395, an act

        11       to amend the State Administrative Procedure Act,

        12       in relation to requiring agencies to enact

        13       written rules incorporating the principles of

        14       law.

        15                      ACTING PRESIDENT HOBLOCK:  Read

        16       the last section.

        17                      THE SECRETARY:  Section 2.  This

        18       act shall take effect immediately.

        19                      ACTING PRESIDENT HOBLOCK:  Call

        20       the roll.

        21                      (The Secretary called the roll.)

        22                      THE SECRETARY:  Ayes 53.

        23                      ACTING PRESIDENT HOBLOCK:  The











                                                             
7703

         1       bill is passed.

         2                      THE SECRETARY:  Calendar Number

         3       1096, by Senator Tully, Senate Print 3847, an

         4       act to amend the Environmental Conservation Law,

         5       in relation to lifetime resident combined

         6       hunting, fishing and big game licenses.

         7                      ACTING PRESIDENT HOBLOCK:  Read

         8       the last section.

         9                      THE SECRETARY:  Section 2.  This

        10       act shall take effect immediately.

        11                      ACTING PRESIDENT HOBLOCK:  Call

        12       the roll.

        13                      (The Secretary called the roll. )

        14                      THE SECRETARY:  Ayes 53.

        15                      ACTING PRESIDENT HOBLOCK:  The

        16       bill is passed.

        17                      THE SECRETARY:  Calendar Number

        18       1097, by Senator Tully, Senate Print 3848, an

        19       act to amend the Environmental Conservation Law

        20       and the State Finance Law, in relation to

        21       enacting the Voluntary Remediation Act of 1995.

        22                      SENATOR PATERSON:  Lay aside.

        23                      ACTING PRESIDENT HOBLOCK:  Lay











                                                             
7704

         1       the bill aside.

         2                      THE SECRETARY:  Calendar Number

         3       1098, by Senator Tully, Senate Print 3849, an

         4       act to amend the Environmental Conservation Law

         5       and the Public Health Law, in relation to

         6       security interests in property.

         7                      ACTING PRESIDENT HOBLOCK:  Read

         8       the last section.

         9                      THE SECRETARY:  Section 3.  This

        10       act shall take effect on the 90th day.

        11                      ACTING PRESIDENT HOBLOCK:  Call

        12       the roll.

        13                      (The Secretary called the roll. )

        14                      THE SECRETARY:  Ayes 53.

        15                      ACTING PRESIDENT HOBLOCK:  The

        16       bill is passed.

        17                      THE SECRETARY:  Calendar Number

        18       1099, by Senator Nanula, Senate Print 3874A, an

        19       act to authorize the city of Niagara Falls to

        20       discontinued use of certain park land.

        21                      ACTING PRESIDENT HOBLOCK:  The

        22       home rule message is at the desk.  Read the last

        23       section.











                                                             
7705

         1                      THE SECRETARY:  Section 3.  This

         2       act shall take effect immediately.

         3                      ACTING PRESIDENT HOBLOCK:  Call

         4       the roll.

         5                      (The Secretary called the roll. )

         6                      THE SECRETARY:  Ayes 53.

         7                      ACTING PRESIDENT HOBLOCK:  The

         8       bill is passed.

         9                      THE SECRETARY:  Calendar Number

        10       1100, by Senator Sears, Senate Print 3921, an

        11       act to amend the Environmental Conservation Law,

        12       in relation to increasing civil penalties

        13       associated with the unlawful taking of fish and

        14       wildlife.

        15                      ACTING PRESIDENT HOBLOCK:  Read

        16       the last section.

        17                      THE SECRETARY:  Section 3.  This

        18       act shall take effect on September 1st.

        19                      ACTING PRESIDENT HOBLOCK:  Call

        20       the roll.

        21                      (The Secretary called the roll. )

        22                      THE SECRETARY:  Ayes 53.

        23                      ACTING PRESIDENT HOBLOCK:  The











                                                             
7706

         1       bill is passed.

         2                      THE SECRETARY:  Calendar Number

         3       1101, by Senator Nozzolio, Senate Print 4408, an

         4       act to amend the Civil Practice Law and Rules,

         5       the Court of Claims Act and the Correction Law,

         6       in relation -

         7                      SENATOR PATERSON:  Lay aside.

         8                      ACTING PRESIDENT HOBLOCK:  Lay

         9       the bill aside.

        10                      THE SECRETARY:  Calendar Number

        11       1102, by Senator Lack, Senate Print 4437, an act

        12       to amend the Estates, Powers and Trusts Law and

        13       the General Obligations Law, in relation to the

        14       renunciations of certain property interests.

        15                      SENATOR PATERSON:  Lay aside.

        16                      ACTING PRESIDENT HOBLOCK:  Lay

        17       the bill aside.

        18                      THE SECRETARY:  Calendar Number

        19       1103, by Senator Libous, Senate Print 4439, an

        20       act to amend the Criminal Procedure Law, in

        21       relation to venue for an application.

        22                      ACTING PRESIDENT HOBLOCK:  Read

        23       the last section.











                                                             
7707

         1                      THE SECRETARY:  Section 4.  This

         2       act shall take effect immediately.

         3                      ACTING PRESIDENT HOBLOCK:  Call

         4       the roll.

         5                      (The Secretary called the roll. )

         6                      THE SECRETARY:  Ayes 53.

         7                      ACTING PRESIDENT HOBLOCK:  The

         8       bill is passed.

         9                      THE SECRETARY:  Calendar Number

        10       1104, by Senator Lack, Senate Print 4610, an act

        11       to amend the Surrogate's Court Procedure Act, in

        12       relation to transfer of actions or proceedings.

        13                      ACTING PRESIDENT HOBLOCK:  Read

        14       the last section.

        15                      THE SECRETARY:  Section 3.  This

        16       act shall shall take effect on the 30th day.

        17                      ACTING PRESIDENT HOBLOCK:  Call

        18       the roll.

        19                      (The Secretary called the roll. )

        20                      THE SECRETARY:  Ayes 53.

        21                      ACTING PRESIDENT HOBLOCK:  The

        22       bill is passed.

        23                      THE SECRETARY:  Calendar Number











                                                             
7708

         1       1105, by Senator Lack, Estates, Powers and

         2       Trusts Law, in relation to providing for payment

         3       of funds over $10,000.

         4                      ACTING PRESIDENT HOBLOCK:  Read

         5       the last section.

         6                      THE SECRETARY:  Section 2.  This

         7       act shall take effect immediately.

         8                      ACTING PRESIDENT HOBLOCK:  Call

         9       the roll.

        10                      (The Secretary called the roll. )

        11                      THE SECRETARY:  Ayes 53.

        12                      ACTING PRESIDENT HOBLOCK:  The

        13       bill is passed.

        14                      THE SECRETARY:  Calendar Number

        15       1106, by Senator Lack, Senate Print 4618, an act

        16       to amend the Surrogate's Court Procedure Act, in

        17       relation to the commissions of multiple

        18       executors.

        19                      ACTING PRESIDENT HOBLOCK:  Read

        20       the last section.

        21                      THE SECRETARY:  Section 2.  This

        22       act shall take effect immediately.

        23                      ACTING PRESIDENT HOBLOCK:  Call











                                                             
7709

         1       the roll.

         2                      (The Secretary called the roll. )

         3                      THE SECRETARY:  Ayes 53.

         4                      ACTING PRESIDENT HOBLOCK:  The

         5       bill is passed.

         6                      THE SECRETARY:  Calendar Number

         7       1107, by Senator Tully, Senate Print 4673, an

         8       act to amend the Environmental Conservation Law,

         9       in relation to exempting certain bakeries from

        10       regulations pursuant to the Clean Air Act.

        11                      SENATOR PATERSON:  Lay aside,

        12       please.

        13                      ACTING PRESIDENT HOBLOCK:  Bill

        14       is laid aside.

        15                      THE SECRETARY:  Calendar Number

        16       1108, by Senator Lack, Senate Print 4680, an act

        17       to amend the Surrogate's Court Procedure Act, in

        18       relation to providing for an aunt or an uncle of

        19       decedent who dies intestate to act as a

        20       voluntary administrator.

        21                      ACTING PRESIDENT HOBLOCK: Read

        22       the last section.

        23                      THE SECRETARY:  Section 2. This











                                                             
7710

         1       act shall take effect immediately.

         2                      ACTING PRESIDENT HOBLOCK:  Call

         3       the roll.

         4                      (The Secretary called the roll.)

         5                      THE SECRETARY:  Ayes 53.

         6                      ACTING PRESIDENT HOBLOCK:  The

         7       bill is passed.

         8                      THE SECRETARY:  Calendar Number

         9       1109, by Senator Lack, Senate Print 4681, an act

        10       to amend the Surrogate's Court Procedure Act, in

        11       relation to the revocation, modification or

        12       suspension of letters testamentary.

        13                      ACTING PRESIDENT HOBLOCK:  Read

        14       the last section.

        15                      THE SECRETARY:  Section 2.  This

        16       act shall take effect immediately.

        17                      ACTING PRESIDENT HOBLOCK:  Call

        18       the roll.

        19                      (The Secretary called the roll. )

        20                      THE SECRETARY:  Ayes 53.

        21                      ACTING PRESIDENT HOBLOCK:  The

        22       bill is passed.

        23                      THE SECRETARY:  Calendar Number











                                                             
7711

         1       1110, by Senator Maziarz, Senate Print 4831.

         2                      SENATOR PATERSON:  Lay aside.

         3                      ACTING PRESIDENT HOBLOCK:  Lay

         4       the bill aside.

         5                      THE SECRETARY:  Calendar Number

         6       1111, by Senator Saland.

         7                      SENATOR PATERSON:  Lay aside.

         8                      ACTING PRESIDENT HOBLOCK:  Laid

         9       aside.

        10                      THE SECRETARY:  Calendar Number

        11       1112, by Senator Saland, Senate Print 5107, an

        12       act to amend the Family Court Act, in relation

        13       to the submission of transcripts.

        14                      ACTING PRESIDENT HOBLOCK:  Read

        15       the last section.

        16                      THE SECRETARY:  Section 2.  This

        17       act shall take effect on the 30th day.

        18                      ACTING PRESIDENT HOBLOCK:  Call

        19       the roll.

        20                      (The Secretary called the roll. )

        21                      THE SECRETARY:  Ayes 53.

        22                      ACTING PRESIDENT HOBLOCK:  The

        23       bill is passed.











                                                             
7712

         1                      THE SECRETARY:  Calendar Number

         2       1113, by Senator Skelos, Senate Print 5195, an

         3       act to amend the Town Law, in relation to the

         4       abolition of the additional office of supervisor

         5       of the town of Hempstead.

         6                      ACTING PRESIDENT HOBLOCK:  The

         7       home rule message is at the desk.  Read the last

         8       section.

         9                      THE SECRETARY:  Section 2.  This

        10       act shall take effect immediately.

        11                      SENATOR PATERSON:  Lay that

        12       aside, please.

        13                      ACTING PRESIDENT HOBLOCK:  At the

        14       request of Senator Paterson, the bill is laid

        15       aside.

        16                      THE SECRETARY:  Calendar Number

        17       1114, by Senator Marcellino, Senate Print 5212,

        18       an act to amend the Criminal Procedure Law, in

        19       relation to corrective remedies.

        20                      SENATOR PATERSON:  Lay aside.

        21                      ACTING PRESIDENT HOBLOCK:  Lay

        22       the bill aside.

        23                      THE SECRETARY:  Calendar Number











                                                             
7713

         1       1115, by Senator Present, Senate Print 5221, an

         2       act to amend the General Municipal Law, in

         3       relation to the powers of the development of

         4       railroad facilities by the county of

         5       Chautauqua.

         6                      ACTING PRESIDENT HOBLOCK:  Read

         7       the last section.

         8                      SENATOR LEICHTER:  Lay aside.

         9                      THE SECRETARY:  Calendar Number

        10       1116, by Senator Sears, Senate Print 5237, an

        11       act to amend -

        12                      SENATOR SEARS:  Lay aside for the

        13       day.

        14                      ACTING PRESIDENT HOBLOCK:  Bill

        15       is laid aside for the day by the sponsor.

        16                      Senator Skelos, that completes

        17       the non-controversial calendar.

        18                      SENATOR SKELOS:  Yes, Mr.

        19       President.  If we could take up the first

        20       supplemental calendar controversial.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Secretary will read the controversial

        23       supplemental calendar.











                                                             
7714

         1                      THE SECRETARY:  Calendar Number

         2       1094, by Senator Skelos, Senate Print 3349, an

         3       act to amend Chapter 846 of the Laws of 1970,

         4       amending the County Law.

         5                      ACTING PRESIDENT HOBLOCK:  Read

         6       the last section.

         7                      THE SECRETARY:  Section 2.  This

         8       act shall take effect immediately.

         9                      ACTING PRESIDENT HOBLOCK:  Home

        10       rule message is at the desk.  Call the roll.

        11                      (The Secretary called the roll. )

        12                      THE SECRETARY:  Ayes 53.

        13                      ACTING PRESIDENT HOBLOCK:  The

        14       bill is passed.

        15                      THE SECRETARY:  Calendar Number

        16       1097, by Senator Tully, Senate Print number

        17       3848, an act to amend the Environmental

        18       Conservation Law and the State Finance Law, in

        19       relation to enacting the Voluntary Remediation

        20       Act of 1995.

        21                      SENATOR OPPENHEIMER:  Explana

        22       tion, please.

        23                      ACTING PRESIDENT HOBLOCK:











                                                             
7715

         1       Explanation has been asked for.  Senator Tully.

         2                      SENATOR TULLY:  Yes, Mr. Presi

         3       dent.  Will you lay that aside temporarily.  I'm

         4       waiting for the bill file to come from the LOB.

         5                      ACTING PRESIDENT HOBLOCK:  The

         6       bill is laid aside temporarily.

         7                      THE SECRETARY:  Calendar Number

         8       1101, by Senator Nozzolio, Senate Print 4408, an

         9       act to amend the Civil Practice Law and Rules,

        10       the Court of Claims Act and the Correction Law,

        11       in relation to prisoner litigation reform.

        12                      SENATOR PATERSON:  Explanation.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Explanation has been asked for.  Bill laid aside

        15       temporarily.

        16                      THE SECRETARY:  Calendar Number

        17       1102, by Senator Lack, Senate Print 4437, an act

        18       to amend the Estates, Powers and Trusts Law and

        19       the General Obligations Law, in relation to

        20       renunciations of certain property interests.

        21                      ACTING PRESIDENT HOBLOCK:  Read

        22       the last section.

        23                      THE SECRETARY:  Section 3.  This











                                                             
7716

         1       act shall take effect immediately.

         2                      ACTING PRESIDENT HOBLOCK:  Call

         3       the roll.

         4                      (The Secretary called the roll. )

         5                      THE SECRETARY:  Ayes 53.

         6                      ACTING PRESIDENT HOBLOCK:  The

         7       bill is passed.

         8                      THE SECRETARY:  Calendar Number

         9       1107, by Senator Tully, Senate Print 4673, an

        10       act to amend the Environmental Conservation Law,

        11       in relation to exempting certain bakeries from

        12       the regulations pursuant to the Clean Air Act.

        13                      SENATOR PATERSON:  Explanation.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Explanation has been asked for.  Senator Tully.

        16                      SENATOR TULLY:  Thank you, Mr.

        17       President.  Will you lay that aside tempor

        18       arily.  That's coming out of the oven; it'll be

        19       over here shortly.

        20                      ACTING PRESIDENT HOBLOCK:  Bill

        21       is laid aside temporarily.

        22                      THE SECRETARY: Calendar Number

        23       1110, by Senator Maziarz, Senate Print 4831, an











                                                             
7717

         1       act to amend the General Obligations Law, in

         2       relation to an owner's, lessee's or occupant's

         3       of premises duty to keep premises safe.

         4                      SENATOR LEICHTER:  Explanation,

         5       please.

         6                      ACTING PRESIDENT HOBLOCK:

         7       Explanation has been asked for.  Senator

         8       Maziarz.

         9                      SENATOR MAZIARZ:  Mr. President,

        10       section 9-103 of the General Obligations Law

        11       currently insulates property owners as well as

        12       lessees and occupants from liability for the

        13       injuries of persons who are on the property in

        14       order to engage in certain enumerated recrea

        15       tional activities.

        16                      This bill would add a new sub

        17       division which would expand the protections of

        18       the article in order to insulate owners from

        19       suits brought by person or persons who enter a

        20       property in order to commit a crime.

        21                      This bill is necessary because,

        22       as the law now stands, it is possible although

        23       it is very rare for a criminal who is injured in











                                                             
7718

         1       the course of committing a crime to successfully

         2       sue the owner of a premises upon which he was

         3       injured.  This bill would eliminate that

         4       possibility, Mr. President.

         5                      SENATOR LEICHTER:  Mr.

         6       President.

         7                      ACTING PRESIDENT HOBLOCK:

         8       Senator Leichter.

         9                      SENATOR LEICHTER:  Yeah, Mr.

        10       President.  If Senator Maziarz would yield,

        11       please.

        12                      ACTING PRESIDENT HOBLOCK: Senator

        13       Maziarz, you yield?

        14                      SENATOR MAZIARZ:  Yes I would.

        15                      ACTING PRESIDENT HOBLOCK:  He

        16       yields.

        17                      SENATOR LEICHTER:  Senator, as I

        18       read this bill, you seem to eliminate the law of

        19       what's called "attractive nuisance", and what

        20       I'm concerned about is the situation which is

        21       not that rare in the city of New York where a

        22       building becomes abandoned for any variety of

        23       reasons, but usually because of poor upkeep.











                                                             
7719

         1                      Once that building is abandoned,

         2       and the landlord fails to take proper steps to

         3       seal off the building, it's very likely that

         4       homeless people will enter the building.

         5                      Now, if there are open air shafts

         6       or really other very dangerous conditions in

         7       that building which constitute or, under the

         8       current law, would constitute negligence having

         9       in mind that the landlord should know that

        10       people might very well take advantage of an

        11       abandoned building, even though by entering that

        12       building they're committing a crime.  They're

        13       committing the crime of trespass, but

        14       nevertheless they're still entitled to some

        15       protection, and what I'm concerned about is that

        16       situation.

        17                      Now, if your bill doesn't

        18       eliminate the protection, I think these people

        19       should be entitled to, then in theory your bill

        20       has a certain appeal; in practice, I'm concerned

        21       about that situation I gave you.  I wondered if

        22       you could respond to that, please.

        23                      SENATOR MAZIARZ:  Well, certainly











                                                             
7720

         1       someone who is seeking shelter, first of all, I

         2       would say that the owner may be committing a

         3       crime by not properly boarding up his building,

         4       leaving it wide open for someone to wander in.

         5       He must be in violation of some building code of

         6       some sort, but secondarily, I don't know that

         7       someone wandering in the building is coming in

         8       to engage in any particular criminal activity.

         9                      SENATOR LEICHTER:  I'm sorry.  I

        10       didn't hear your last comment.

        11                      SENATOR MAZIARZ:  I said I don't

        12       know if someone just wandering into the

        13       building, since the intent of this is to protect

        14       the owner from someone who is coming into the

        15       building with some criminal activity in mind.

        16                      SENATOR LEICHTER: Well, trespass

        17       is a criminal activity.

        18                      ACTING PRESIDENT HOBLOCK:  Is

        19       that a question to Senator Maziarz, Senator

        20       Leichter?

        21                      SENATOR LEICHTER:  It is a

        22       question.

        23                      ACTING PRESIDENT HOBLOCK:











                                                             
7721

         1       Senator Leichter.

         2                      SENATOR LEICHTER:  Is it not?  Is

         3       trespass not a criminal activity?

         4                      SENATOR MAZIARZ:  Well, Senator,

         5       I'm not an attorney, but I don't think it's

         6       enough -- it's not -- trespass is not enough.

         7       It would have to be a -- it would have to be

         8       somewhat of a more serious crime, Senator.

         9                      SENATOR LEICHTER:  Mr. President,

        10       if Senator Maziarz would continue to yield.

        11                      ACTING PRESIDENT HOBLOCK:

        12       Senator Maziarz, do you continue to yield?

        13                      SENATOR MAZIARZ:  Yes.  I believe

        14       trespass is a violation, Senator.  I will

        15       continue to yield.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Senator Leichter, he continues to yield.

        18                      SENATOR LEICHTER:  Senator, I

        19       believe that trespass can constitute a Class B

        20       misdemeanor and that is a crime, but may I make

        21       this suggestion to you.  If your intent is to

        22       deal with more serious crimes, say somebody

        23       comes in with a gun with the intent to rob











                                                             
7722

         1       somebody and he trips on the steps because the

         2       carpeting is loose and then turns around and

         3       sues the person, I certainly agree with you that

         4       we don't want somebody like that to bring an

         5       action.

         6                      Why don't you -- why don't you

         7       amend the bill to provide, as I gather from what

         8       you say is your intent, that it covers more

         9       serious crimes instead of just using the word

        10       "crime."  Why not say "felony" because to do an

        11       act which would constitute a felony and then I

        12       don't think any of us would have a problem with

        13       it.

        14                      SENATOR MAZIARZ:  Senator, was

        15       there a question there?  I -- I do not wish to

        16       amend the bill.

        17                      SENATOR LEICHTER:  Excuse me.

        18                      SENATOR MAZIARZ:  I do not wish

        19       to amend the bill.

        20                      SENATOR LEICHTER:  All right.

        21       Mr. President.

        22                      ACTING PRESIDENT HOBLOCK:

        23       Senator Leichter.











                                                             
7723

         1                      SENATOR LEICHTER:  On the bill.

         2                      ACTING PRESIDENT HOBLOCK:  On the

         3       bill.

         4                      SENATOR LEICHTER:  I guess it's

         5       unfortunate, Senator Maziarz, occasionally, you

         6       know, suggestions are made for bills that have

         7       been written, even bills that have put out by

         8       the Majority, that can be improved, that could

         9       be made clearer, that could more perfectly

        10       achieve your intent and also could gain the

        11       support of all the members of this house and

        12       maybe give it a good chance of being passed in

        13       the other house.

        14                      There is something of a tradition

        15       here that once a bill is printed, it's on the

        16       floor, that it's as if it were sanctified by

        17       Moses coming down from the mount, it cannot be

        18       improved upon, but I think upon reflection you

        19       will see that we've had bills here that have

        20       indeed been improved.

        21                      Now, all I did in my suggestion

        22       was to take your very words.  You said, Well,

        23       what I have in mind is serious crimes.  However,











                                                             
7724

         1       your bill doesn't say that.  Your bill says

         2       committing a crime, so I made what I thought was

         3       a reasonable suggestion that you state that the

         4       crime which would obviate any grounds for civil

         5       cause of action would be felonies.  Then I don't

         6       think any of us would have problems, because

         7       otherwise you do have the situation where in the

         8       example that I gave you, which is not that un

         9       common in the city of New York where a building

        10       is either not sealed off at all or poorly sealed

        11       off, homeless people will come in and they're

        12       entitled to some sort of protection.  Similarly,

        13       children, as we know -- children, could be

        14       teenagers, do commit trespasses, and so on.

        15       Those could be considered crimes.  They

        16       nevertheless ought to be entitled to some sort

        17       of basic protection.  For, I don't know how many

        18       years, the common law has had the doctrine of

        19       attractive nuisance.  I think it's made a lot of

        20       sense.

        21                      You're trying to eliminate that

        22       and change that totally and completely.  That, I

        23       think, is going too far and that's why I suggest











                                                             
7725

         1       to you that the bill would make a lot more

         2       sense, and I think would have a much better

         3       chance of passing in the Assembly if you

         4       provided that you're talking of felonies.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Secretary will read the last section.

         7                      THE SECRETARY:  Section 2.  This

         8       act shall take effect immediately.

         9                      ACTING PRESIDENT HOBLOCK:  Call

        10       the roll.

        11                      (The Secretary called the roll. )

        12                      THE SECRETARY:  Those recorded in

        13       the negative on Calendar Number 1110 are

        14       Senators Abate, Connor, Leichter, Markowitz,

        15       Montgomery, Paterson, Smith and Solomon.  Ayes

        16       45, nays 8.

        17                      ACTING PRESIDENT HOBLOCK:  The

        18       bill is passed.

        19                      THE SECRETARY:  Calendar Number

        20       1111, by Senator Saland, Senate Print 5103, an

        21       act to amend the Domestic Relations Law, in

        22       relation to special relief in matrimonial

        23       actions.











                                                             
7726

         1                      ACTING PRESIDENT HOBLOCK:  Read

         2       the last section.

         3                      SENATOR PATERSON:  Explanation.

         4                      SENATOR SKELOS:  Lay it aside for

         5       the day.

         6                      ACTING PRESIDENT HOBLOCK:  Bill

         7       is laid aside for the day.

         8                      THE SECRETARY:  Calendar Number

         9       1113, by Senator Skelos, Senate Print 5195, an

        10       act to amend the Town Law, in relation to the

        11       abolition of the additional office of supervisor

        12       of the town of Hempstead.

        13                      ACTING PRESIDENT HOBLOCK:  Home

        14       rule message is at the desk.  Read the last

        15       section.

        16                      SENATOR PATERSON:  Explanation.

        17                      THE SECRETARY:  Section 2.  This

        18       act shall take effect immediately.

        19                      ACTING PRESIDENT HOBLOCK:

        20       Explanation has been asked for.

        21                      SENATOR SKELOS: Mr. President.

        22                      ACTING PRESIDENT HOBLOCK:

        23       Senator Skelos.











                                                             
7727

         1                      SENATOR SKELOS:  Mr. President,

         2       in the town of Hempstead in the county of

         3       Nassau, there is the position of presiding

         4       supervisor and supervisor.  Because of the fact

         5       that commencing January 1st, 1996, Nassau County

         6       will be governed by a county legislature rather

         7       than by a board of supervisors system, where

         8       both the presiding supervisor and the supervisor

         9       of the town of Hempstead sat on that board, this

        10       legislation would eliminate one of those

        11       positions since they are no longer part of the

        12       board of supervisors, and there would now just

        13       be a supervisor of the town of Hempstead just as

        14       there is one in North Hempstead and the town of

        15       Oyster Bay.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Senator Paterson.

        18                      SENATOR PATERSON:  Yes.  Mr.

        19       President, so, Senator Skelos, there used to be

        20       two.  There used to be a local town official and

        21       the town supervisor and what we're doing is just

        22       taking one, taking the local one out because we

        23       have a county legislature now?











                                                             
7728

         1                      SENATOR SKELOS:  Basically, yes.

         2       There was a presiding supervisor, supervisor,

         3       and they both sat on the board of supervisors.

         4       Since there's no longer going to be a board of

         5       supervisors, we're eliminating one of the

         6       supervisor positions, and there will now be just

         7       one supervisor from the town of Hempstead.

         8       Essentially, we're eliminating the presiding

         9       supervisor's position.

        10                      SENATOR PATERSON:  One

        11       supervisor.  You get all (inaudible).  Thank

        12       you.

        13                      SENATOR LEICHTER: Mr. President.

        14                      ACTING PRESIDENT HOBLOCK: Senator

        15       Leichter.

        16                      SENATOR LEICHTER:  Yeah, Mr.

        17       President, if Senator Skelos would yield,

        18       please.

        19                      ACTING PRESIDENT HOBLOCK: Senator

        20       Skelos, do you yield?

        21                      SENATOR SKELOS: Yeah.

        22                      ACTING PRESIDENT HOBLOCK:

        23       Senator, who is the presiding supervisor now of











                                                             
7729

         1       the town of Hempstead?

         2                      SENATOR SKELOS:  Fred Peterson.

         3                      SENATOR LEICHTER: O.K. He's the

         4       presiding supervisor?  And who is the

         5       supervisor?

         6                      SENATOR SKELOS:  Richard

         7       Guardino.

         8                      SENATOR LEICHTER:  And are they

         9       both from the same party?

        10                      SENATOR SKELOS:  They're both

        11       from the same party.

        12                      SENATOR LEICHTER: O.K.

        13                      SENATOR SKELOS:  As are the six

        14       councilmen in the town of Hempstead also.

        15                      SENATOR LEICHTER:  Right.  I mean

        16       I just want to make sure.  I know that you

        17       ordinarily wouldn't put something forward that's

        18       not a good government measure.

        19                      SENATOR SKELOS:  As a matter of

        20       fact, in the town of Hempstead, I don't think

        21       there's ever been other than a Republican

        22       supervisor and presiding supervisor.

        23                      SENATOR LEICHTER:  And the -











                                                             
7730

         1       this in no way will change the representation of

         2       any group within the town of Hempstead?

         3                      SENATOR SKELOS:  No.  Essentially

         4       it's saving the taxpayers the burden of one

         5       additional supervisor's position.  The original

         6       charter to the county of Nassau, when they

         7       established the presiding supervisor's position,

         8       because the town of Hempstead had over 50

         9       percent of the vote, they established the two

        10       positions, presiding supervisor and supervisor,

        11       so that one person would not be able to control

        12       essentially the entire county of Nassau.

        13                      Now that we're going to a county

        14       legislature, we're eliminating one of those

        15       positions.

        16                      SENATOR LEICHTER: Let me just ask

        17       you, if you would be good enough to yield:  As a

        18       consequence of going to the county legislature,

        19       you still going to maintain the position of town

        20       supervisor?

        21                      SENATOR SKELOS:  Sure.

        22                      SENATOR LEICHTER:  And is that

        23       going to be a position that's going to have a











                                                             
7731

         1       vote on the county legislature?

         2                      SENATOR SKELOS:  No.

         3                      SENATOR LEICHTER:  O.K. Thank

         4       you.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Secretary will read the last section.

         7                      THE SECRETARY:  Section 2.  This

         8       act shall take effect immediately.

         9                      ACTING PRESIDENT HOBLOCK:  Call

        10       the roll.

        11                      (The Secretary called the roll. )

        12                      THE SECRETARY:  Ayes 53.

        13                      ACTING PRESIDENT HOBLOCK:  The

        14       bill is passed.

        15                      THE SECRETARY:  Calendar Number

        16       1114, by Senator Marcellino, Senate Print 5212,

        17       an act to amend the Criminal Procedure Law, in

        18       relation to corrective remedies.

        19                      SENATOR PATERSON:  Explanation.

        20                      ACTING PRESIDENT HOBLOCK:

        21       Senator Marcellino, an explanation has been

        22       asked for.

        23                      SENATOR MARCELLINO:  Mr.











                                                             
7732

         1       President, this bill seeks to amend the Criminal

         2       Procedure Law with regard to the people's

         3       failure to serve on a defendant copies of

         4       witness statements.

         5                      At the request of the District

         6       Attorneys Association of the state of New York

         7       this bill -- I'm introducing this bill.  It adds

         8       a new section 240.146 to the Criminal Procedure

         9       Law to provide that a defendant must demonstrate

        10       that his or her substantial rights would

        11       prejudice for failure to turn over copies of

        12       witness statements in order for reversal or

        13       modification of a judgment to be granted.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Senator Paterson.

        16                      SENATOR PATERSON:  Mr. President,

        17       if Senator Marcellino would please yield for a

        18       question.

        19                      ACTING PRESIDENT HOBLOCK: Senator

        20       Marcellino, do you yield?

        21                      SENATOR MARCELLINO: Absolutely.

        22                      SENATOR PATERSON:  Senator

        23       Marcellino, would you first explain to me why











                                                             
7733

         1       you want to put the burden on the defendant to

         2       establish that the papers that might not have

         3       been filed were not germane to the actual case

         4       when the defendant may not know that informa

         5       tion but the fact is that the withholding of

         6       documents is a very serious matter in the

         7       criminal case.

         8                      SENATOR MARCELLINO:  Senator, it

         9       would seem that, if there was deliberate intent

        10       to withhold material that would protect or help

        11       the defendant, then I could imagine that a judge

        12       would be able to say clearly that this was done

        13       with intent and that it should be overturned and

        14       the decision should be over turned.

        15                      In the case of a statement which

        16       occurred here in one of our examples, the

        17       witness statement that caused the overturning of

        18       a case actually pointed to the fact that the

        19       witness observed the defendant in the building

        20       where the crime was committed at the time the

        21       crime was committed.  It had no effect -- would

        22       have had no positive effect from the defendant's

        23       standpoint.











                                                             
7734

         1                      The rule -- the Rosario rule,

         2       which governs these statements has apparently

         3       been turned into a situation where any error,

         4       whether it be by intent or just by oversight,

         5       whether it's for the defendant or against the

         6       defendant, will result in an immediate new

         7       trial.  It would be my contention that, in order

         8       for any reversal to occur, that a defendant

         9       should show that cause -- that this statement

        10       would have helped from their perspective and let

        11       a judge decide if, in fact, that's the case.

        12       Defendant would have to prove, for example upon

        13       conviction that there was errors in the trial

        14       procedure in order to get the reversal -

        15       conviction reversal for a new trial; so the

        16       defendant has the same responsibility in either

        17       case.

        18                      SENATOR PATERSON:  Mr.

        19       President.

        20                      ACTING PRESIDENT HOBLOCK:

        21       Senator Paterson.

        22                      SENATOR PATERSON:  Mr. President,

        23       in the case that Senator Marcellino describes,











                                                             
7735

         1       he may be actually correct, but what we do by

         2       requiring the burden be on the police is that we

         3       set a standard that can apply for all cases and

         4       the vast majority of them.  If we were to pass

         5       this legislation, we would overturn the case of

         6       People v. Rangel, and one of the real important

         7       issues that came out in the dicta of the Rangel

         8       case is actually the fact that the defendant

         9       cannot always just meet some ambiguous standard

        10       by proving that a statement or some form of

        11       evidence that was not presented is necessarily

        12       going to overturn the case.

        13                      That becomes a very subjective

        14       determination and when we want -- when we open

        15       our criminal courts for the purposes of

        16       prosecuting criminals and also exonerating those

        17       who are not guilty, we don't want to have this

        18       kind of situation where you don't know when

        19       you're going over the line where there's a great

        20       ambiguity.

        21                      What we don't really understand,

        22       Senator Marcellino, with this particular

        23       legislation is, why the -- why the -- the reason











                                                             
7736

         1       that the standard was set in the Rangel case, to

         2       be frank with you is to make sure that it is

         3       always a high priority on the part of the police

         4       to present this evidence, but if this evidence

         5       is not presented we deem it to be so important

         6       that we will make that an issue relating to the

         7       dismissal of the charges.  If the evidence is

         8       not presented, if it's withheld in any way,

         9       whether it be deliberate or not deliberate,

        10       because that's how important it is that all of

        11       the information be available at trial.  What we

        12       have to do in this situation where the burden is

        13       put on the defendant is we make the defendant

        14       come forward after the fact and try to prove

        15       something that made really be in many respects

        16       something that is now after the fact and is out

        17       of timing with the events that would have

        18       occurred at trial.

        19                      This is the reason that this leg

        20       islation, in my opinion, seriously jeopardizes

        21       the right of the defendant to get a fair trial

        22       and there are certain elements of a criminal

        23       trial where there are -- where the prosecution











                                                             
7737

         1       is forced to bring certain evidence and to

         2       maintain -- to maintain certain standards and in

         3       an individual case, and there will be individual

         4       cases in our criminal justice system, where the

         5       prosecution doesn't meet the standard and yes,

         6       the defendant will go free, but the policy

         7       argument that we're making here is the argument

         8       that in the overwhelming number of cases, we

         9       want to set a uniform standard and that's what

        10       the Rangel case did, and that's why it really

        11       should be the duty of the police to bring that

        12       evidence forward.

        13                      To pass this legislation would

        14       set up a standard where we're not bringing the

        15       evidence forward, where we now have an ambiguous

        16       standard of what we're setting that -- and a

        17       very high burden of proof that the defendant has

        18       to demonstrate that but for the fact that this

        19       evidence was not presented, I would have been

        20       exonerated of the charges, in my opinion that is

        21       too high a standard to ask an individual who is

        22       alleged to be innocent until proven guilty

        23       beyond a reasonable doubt.  It is too high a











                                                             
7738

         1       standard for that individual to meet.

         2                      ACTING PRESIDENT HOBLOCK:

         3       Senator Gold.

         4                      SENATOR GOLD:  Thank you.

         5                      Mr. President, this is a bill

         6       we've had before, and while the sponsor is new,

         7       the bill is not new and the issue is not new and

         8       the problem with the bill is a very simple one.

         9                      We assume that people who can do

        10       one job very effectively can also do every other

        11       job, and it's just not true, and there are some

        12       judges who are wonderful judges and very bright

        13       men and women, whom I wouldn't want to try a

        14       case for me on the other side of the bench.

        15                      A trial is a dynamic, and whether

        16       we like it or not, the fact of the matter is

        17       that records will indicate that people who have

        18       money sometimes can do better in a courtroom

        19       than other people.  Matter of fact, you take a

        20       look at the debacle that's going on in

        21       California, even have a prosecutor who says he's

        22       fed up with the system, the point I'm making is

        23       that to say that a defendant must prove to a











                                                             
7739

         1       judge who may or may not be his choice of trial

         2       lawyer, that having that statement in advance

         3       would have or would not have affected the

         4       preparation of the case, how the selection of

         5       the jury would have been handled, how the order

         6       of witnesses might have been handled for the

         7       defense, whether or not a defendant takes the

         8       stand or doesn't, whether you use private

         9       detectives to check out one witness or another.

        10       I mean these are real life dynamics of trying a

        11       case and preparing a case, and it's too

        12       simplistic -- and I don't mean that in any

        13       degrading way, Senator, believe me -- to suggest

        14       that the mere giving or not giving of a

        15       statement, because of its contents, would or

        16       would not affect an outcome, because of the way

        17       one judge or two judges view how they as a trial

        18       lawyer might use the contents of that

        19       statement.

        20                      The real problem with this bill

        21       is that it tampers with a very delicate

        22       balance.  Two people in a courtroom may not

        23       speak at once, so we have determined that one











                                                             
7740

         1       side will speak before the other.  We have

         2       determined that one side will ask questions of

         3       juries before the other.  We have determined

         4       that one side will sum up after the other, and

         5       we hope that in this whole balancing act there's

         6       a fair trial, fair for the prosecution, giving

         7       them an opportunity to really convict people who

         8       have committed crime, and a fair opportunity for

         9       people who have not committed a crime to have

        10       their day in court and perhaps be declared not

        11       guilty and, when we make these itsy-bitsy little

        12       changes, they're not so itsy-bitsy and what they

        13       wind up doing is changing the balance within the

        14       court.

        15                      Senator Volker, every year, puts

        16       forth a bill which would change the grand jury

        17       system because one prosecutor up in Erie County

        18       made a mistake one day.  Now, since that time

        19       everything has gone great.  His law, proposed

        20       law, has not passed and other prosecutors have

        21       not made that error.

        22                      Senator, we have a case which has

        23       been very well described by the Deputy Minority











                                                             
7741

         1       Leader, and I don't see case after case

         2       happening.  There are prosecutors throughout

         3       this state who understand their obligation.  As

         4       a matter of fact, in the very case that was

         5       discussed by Senator Paterson, the statement,

         6       according to the court decision, would not have

         7       changed the outcome and helped the prosecution,

         8       so there's no reason why they should not have

         9       complied with the law and walked away with their

        10       conviction.

        11                      The bottom line of all of this is

        12       that you cannot take a -- any proposed law that

        13       would change the structure of a trial and look

        14       at it in a vacuum.  You must look at it as part

        15       of a whole system of checks and balances and in

        16       that context, Senator, I think it is not a great

        17       idea, and I would go along with the suggestion,

        18       Senator Paterson, that we leave the law just the

        19       way it is.

        20                      ACTING PRESIDENT HOBLOCK:

        21       Senator Abate.

        22                      SENATOR ABATE:  Yes, on the

        23       bill.  On Friday night we passed a law which











                                                             
7742

         1       overturned the Ryan decision because we felt

         2       that Court of Appeals case could be put a

         3       prosecutor in an unfair position to prosecute

         4       serious drug offenders.

         5                      This is a very different case.

         6       What the law would do, what the Rosario said

         7       that discovery is an important part of a fair

         8       trial right to counsel.  It was an important

         9       part of the people's burden to prove a case

        10       beyond a reasonable doubt because the converse

        11       is, if the defendant doesn't get these prior

        12       inconsistent statements, doesn't get the

        13       statements of witnesses, it thereby jeopardizes

        14       the defendant's ability to prepare for trial.

        15       It jeopardizes the right to a fair trial, and it

        16       puts the defendant at an unfair burden.

        17                      So I agree with my colleague,

        18       this is a very different situation from what we

        19       faced on Friday night.  That was clear this does

        20       change the rights of the defendant and, yes, it

        21       will be a case where the defendant, the district

        22       attorney, because of oversight has failed to

        23       give the material over to the defense; but the











                                                             
7743

         1       burden isn't so great.

         2                      The D.A. on the case has those

         3       statements before them when they put that

         4       witness on the stand.  It's usually neglect

         5       because it's very easy for them to turn over

         6       that information to the defense counsel, so that

         7       the burden -- and it's a heavy burden as well it

         8       should be -- should stay with the district

         9       attorney, and it should not shift to the

        10       defendant.

        11                      ACTING PRESIDENT HOBLOCK:  Read

        12       the last section.

        13                      THE SECRETARY:  Section 2.  This

        14       act shall take effect on the 1st day of

        15       November.

        16                      ACTING PRESIDENT HOBLOCK:  Call

        17       the roll.

        18                      (The Secretary called the roll. )

        19                      ACTING PRESIDENT HOBLOCK:

        20       Senator Leichter.

        21                      SENATOR LEICHTER:  Yes, if I may

        22       just explain my vote on this, Mr. President,

        23       maybe put it in a little bit philosophical











                                                             
7744

         1       context.

         2                      I think that what is so wonderful

         3       about this country, what is so wonderful about

         4       our tradition of due process, is that we really

         5       do bend over backwards to make sure that we

         6       never convict the wrong person.  We know that,

         7       as human beings, we're subject to making

         8       mistakes, we're fallible, and obviously,

         9       innocent people do get convicted, but we make

        10       every effort to make sure that a trial is fair

        11       and that we avoid making what is the gravest of

        12       mistakes in the law, and that is convicting an

        13       innocent person and that is, I think, why this,

        14       the law as it presently is, is so important and

        15       that is why this bill is such a radical

        16       departure really, such a basic change in the

        17       philosophy of the outlook, and I would say

        18       principle of tradition of this country.

        19                      Mr. President, I vote no.

        20                      ACTING PRESIDENT HOBLOCK:

        21       Secretary will announce the results.

        22                      THE SECRETARY:  Those recorded in

        23       the negative on Calendar Number 1114 are











                                                             
7745

         1       Senators Abate, DeFrancisco, Espada, Gold,

         2       Leichter, Marchi, Mendez, Paterson, Smith,

         3       Solomon, Waldon, Wright, also Senator Montgomery

         4        -- excuse me, Senator Wright is voting in the

         5       affirmative.  In the negative Senator Connor.

         6       Ayes 41, nays 13.

         7                      ACTING PRESIDENT HOBLOCK:  The

         8       bill is passed.

         9                      Senator Wright.

        10                      SENATOR WRIGHT:  Mr. President,

        11       can we return to motions and resolutions.  I

        12       believe there is a resolution sponsored by

        13       Senator DeFrancisco at the desk and ask that the

        14       titled be read and the resolution adopted.

        15                      ACTING PRESIDENT HOBLOCK:

        16       Secretary will read.

        17                      THE SECRETARY:  By Senator

        18       DeFrancisco, Legislative Resolution honoring

        19       Gregory R. Schneider, an eighth grade student at

        20       Driver Middle School in the Marcellus Central

        21       School District, for his participation in the

        22       49th Senate District "Good News, Good Kids"

        23       student recognition program.











                                                             
7746

         1                      ACTING PRESIDENT HOBLOCK:

         2       Senator DeFrancisco.

         3                      SENATOR DeFRANCISCO:  Yes.  I

         4       rise to speak in support of this resolution.

         5       You know, oftentimes in these chambers we talk

         6       about things that are wrong with this state and

         7       may be with young people.  We started a program

         8       a couple years ago called "Good News, Good Kids"

         9       in our district which honors groups of kids who

        10       do good things for the community, and this is

        11       one individual, I think had to be specially

        12       recognized, Gregory R. Schneider, who is here

        13       with his parents and grandmother and other

        14       relatives.

        15                      He, on his own, as an eighth

        16       grader, decided that an area behind the town of

        17       Marcellus Town Hall should be a park and made

        18       forever green and, on his own, he went to the

        19       town supervisor, appeared before the town board

        20       to get approval for this forever green park that

        21       was his idea, and the town board does what we do

        22       all the time.  It approved it, but said there's

        23       no funds for it.  You raise the money, so he











                                                             
7747

         1       did.

         2                      He went out and got fund raisers,

         3       together, and at least at the time of this

         4       writing he raised about $7,000.  Couldn't pay

         5       for an architect, didn't have enough money, so

         6       he convinced an architect to do a free archi

         7       tectural drawing, and then got a landscaping

         8       person to devote his time, and brought in other

         9       kids to help with the planting, the planting of

        10       the trees.

        11                      Talk about, you know, getting

        12       community service to happen in an eighth grader

        13       to do that.  Well, I could tell you as of today

        14       that park is forever green.  The trees, over a

        15       hundred trees have been planted, and they're

        16       working on the park benches and other things

        17       that are going to be forever in the town of

        18       Marcellus park because of an eighth grader by

        19       the name of Gregory Schneider.

        20                      We should honor him and all the

        21       kids like him who do good things and give us

        22       good things to talk about.

        23                      (Applause)











                                                             
7748

         1                      ACTING PRESIDENT HOBLOCK:  Thank

         2       you very much, Senator DeFrancisco.  The

         3       question is on the resolution.  All those in

         4       favor signify by saying aye.

         5                      (Response of "Aye.")

         6                      Opposed nay.

         7                      (There was no response. )

         8                      The resolution is adopted.

         9                      Senator Wright.

        10                      SENATOR WRIGHT:  Mr. President,

        11       can we return to the reading of the

        12       controversial calendar.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Secretary will read.

        15                      THE SECRETARY:  Calendar Number

        16       1115, by Senator Present, Senate Print 5221, an

        17       act to amend the General Municipal Law, in

        18       relation to the powers of the development of

        19       railroad facilities by the county of

        20       Chautauqua.

        21                      ACTING PRESIDENT HOBLOCK:  Read

        22       the last section.

        23                      SENATOR LEICHTER:  Mr.











                                                             
7749

         1       President.

         2                      ACTING PRESIDENT HOBLOCK:

         3       Senator Leichter.

         4                      SENATOR LEICHTER:  Is there a

         5       home rule message on this bill?

         6                      ACTING PRESIDENT HOBLOCK:  Not

         7       one necessary, we're advised, Senator Leichter.

         8                      SENATOR LEICHTER:  Well, let me

         9       ask Senator Present a question.

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator Present yield?

        12                      SENATOR PRESENT:  Yes.

        13                      SENATOR LEICHTER:  Senator

        14       Present, as I read this bill, in order for a

        15       particular IDA project to proceed or if it

        16       proceeds, then certain tax relief will be

        17       provided from the real estate tax and that will

        18       cover a period where the tax rolls have already

        19       been closed, is that correct?

        20                      SENATOR PRESENT:  It will cover

        21       any taxes levied after September 15, 1995 with

        22       the exception of the school 1995-96 tax.

        23                      SENATOR LEICHTER:  But, Senator,











                                                             
7750

         1       if you would please continue to yield, is that

         2       because the tax rolls have been -- have been

         3       closed?

         4                      SENATOR PRESENT:  Back in January

         5       of this year, we passed a statute that became

         6       Chapter 11 of the Laws of 1995 which authorized

         7       the IDAs in Chautauqua and Allegany Counties to

         8       purchase a portion of the CONRAIL line which

         9       runs -- that portion that runs from Hornell to

        10       the Pennsylvania-New York State line.

        11                      They were not able to negotiate

        12       that sale prior to March 1st, which is the

        13       normal tax status day, so they have asked that

        14       this be extended to September 15th, but not to

        15       apply to 1995-96 school district taxes.

        16                      It also says that it has to be

        17       with the consent of the taxing jurisdictions

        18       within that district.

        19                      SENATOR LEICHTER:  Senator, does

        20       this -- is this -- I appreciate that no home

        21       rule message is here and none apparently is

        22       required, but is this something that the county

        23       asked us to do?











                                                             
7751

         1                      SENATOR PRESENT:  Very much so,

         2       yes.

         3                      SENATOR LEICHTER:  O.K.

         4                      SENATOR PRESENT:  The two

         5       counties.

         6                      ACTING PRESIDENT HOBLOCK:  Read

         7       the last section.

         8                      THE SECRETARY:  Section 3.  This

         9       act shall take effect immediately.

        10                      ACTING PRESIDENT HOBLOCK:  Call

        11       the roll.

        12                      (The Secretary called the roll. )

        13                      THE SECRETARY:  Ayes 56.

        14                      ACTING PRESIDENT HOBLOCK:  The

        15       bill is passed.

        16                      Senator Wright.

        17                      SENATOR WRIGHT:  Mr. President,

        18       could we take up Calendar Number 1101.

        19                      ACTING PRESIDENT HOBLOCK:

        20       Calendar Number 1101, Secretary will read.

        21                      THE SECRETARY:  Calendar Number

        22       1101, by Senator Nozzolio, Senate Print 4408, an

        23       act to amend the Civil Practice Law and Rules











                                                             
7752

         1       and the Court of Claims Act and the Correction

         2       Law, in relation to prisoner litigation reform.

         3                      SENATOR PATERSON:  Explanation.

         4                      ACTING PRESIDENT HOBLOCK:

         5       Explanation has been asked for, Senator

         6       Nozzolio.

         7                      SENATOR NOZZOLIO:  Yes, Mr.

         8       President.

         9                      This measure is another of our

        10       attempts to present a comprehensive approach to

        11       prisoner reform, that this particular bill deals

        12       with prisoner litigation and it provides what I

        13       believe will be a disincentive to those inmates

        14       who wish to use the court system and make a

        15       mockery out of our system of justice by bringing

        16       meritless, frivolous, malicious and/or

        17       repetitive lawsuits of a civil nature, and I

        18       underscore, Mr. President of a civil nature.

        19       This deals with civil litigation.

        20                      It also seeks to prevent the

        21       filing of law suits by having such actions

        22       adjudicated in a more fair and expeditious

        23       manner with less case load, to bring justice to











                                                             
7753

         1       those who may have a very valid lawsuit but,

         2       because of the clogged court system, cannot hear

         3       that -- that system cannot hear that suit.

         4                      Basically there are four purposes

         5       of the measure.  It institutes a partial filing

         6       fee for prisoner litigation brought in state

         7       court, establishes a refundable filing fee for

         8       actions in the New York State Court of Claims.

         9       It requires inmates to exhaust their adminis

        10       trative remedies within the Department of Cor

        11       rectional Services prior to engaging in litiga

        12       tion, and it lastly permits the Commissioner of

        13       Corrections to establish sanctions for prisoners

        14       who bring meritless lawsuits upon judicial

        15       determination where they are found to be such

        16       frivolous, malicious or repetitive by a court.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Senator Abate.

        19                      SENATOR ABATE:  Yes.  Would

        20       Senator Nozzolio yield for a question?

        21                      ACTING PRESIDENT HOBLOCK:

        22       Senator Nozzolio, do you yield?

        23                      SENATOR NOZZOLIO:  Yes, Mr.











                                                             
7754

         1       President.

         2                      SENATOR ABATE:  We had some

         3       discussion around this bill -- I believe it's

         4       the same bill -- in Codes, and I had one

         5       concern.  I was willing to support the bill if I

         6       could get a couple questions answered, and let

         7       me pose the same questions to you, Senator.

         8                      One was, is there any time limit

         9       set in terms of exhausting the administrative

        10       remedies because, if there's no time set, then

        11       years could go by and, in fact, this legislation

        12       would have a chilling effect for those inmates

        13       who do have meritorious claims because they

        14       would have to wait a long period of time before

        15       they could file their claims with a state

        16       court.

        17                      SENATOR NOZZOLIO:  Section 3 of

        18       the bill deals with the exhaustion requirement,

        19       Senator.

        20                      SENATOR ABATE:  See, I don't have

        21       the bill before me.  Does it have anything -

        22       and I don't think the answer -- the question was

        23       asked the last time.  Is there a 90-day limit, a











                                                             
7755

         1       year limit, a reasonable period of time, because

         2       the exhaustion of administrative remedies, I

         3       think, is a very good idea because it would

         4       avoid litigation, particularly when some of

         5       these issues could be resolved at the

         6       administrative level, but you don't want it to

         7       have a chilling effect on all future litigation.

         8                      SENATOR NOZZOLIO:  The exhaustion

         9       requirements established are only for those

        10       claims where there is recovery for personal

        11       property damages, Senators.  We do not have any

        12       specific time limit where the Department of

        13       Corrections must act.  However, I'm certainly

        14       sure that there will be another lawsuit filed

        15       if, for some reason, the Department of

        16       Corrections does not act in a timely manner.

        17                      I believe that to set an

        18       administrative -- you as a former commissioner,

        19       I don't think would have -- with a statutory

        20       requirement that an action must be reviewed

        21       within a short period of time would make sense

        22       administratively, that nonetheless the intention

        23       is that as all administrative remedies must be











                                                             
7756

         1       exhausted when a private non-prisoner litigant

         2       must go to court if the court, within the claim

         3       of statute of limitations, that governs the time

         4       that action must be taken.

         5                      An exhaustion of remedies does

         6       not -- must be made within that administrative

         7       or that statutory framework of the statute of

         8       limitations of the case in question, the damages

         9       sought based on the statute of limitations of

        10       that particular case, so I believe that there is

        11       ample time certainly to do this, that I don't

        12       see the need to handcuff the administration with

        13       a specific period of time.

        14                      SENATOR ABATE:  But, on the other

        15       hand, if in fact in the statute, it -- it would

        16       outline that an administrative resolution had

        17       to occur within a period of time, let's say 90

        18       days, six months, even the Department of

        19       Correction would not be harmed by that because

        20       all that would occur is the person then would

        21       pursue their remedies in the court as well as

        22       administratively, but it would put some burden

        23       on the Department, DOCS, to move these adminis











                                                             
7757

         1       trative cases, or they understand that the

         2       inmate has an opportunity to follow a second

         3       venue to remedy their situation.

         4                      That's one of my concerns, and I

         5       was hoping that could be addressed so I could

         6       support this.

         7                      Also, are you mindful that most

         8       of the cases that go before a judge, even though

         9       they may -- there may not be a ruling in favor

        10       of the inmates, most of them are found either to

        11       be non-meritorious, or found to be meritorious?

        12       Very few are found to be frivolous and this -

        13       and my understanding of this legislation that,

        14       if an inmate files a claim in court and it's

        15       non-meritorious, there would be no sanction

        16       against that individual.

        17                      Let's say they lose in court, but

        18       the court finds it's non-meritorious.  That does

        19       not mean it's frivolous; is that right?

        20                      ACTING PRESIDENT HOBLOCK:

        21       Senator Nozzolio, do you yield?

        22                      SENATOR NOZZOLIO:  Yes, Mr.

        23       President.  That is correct.











                                                             
7758

         1                      SENATOR ABATE:  And that is an

         2       important distinction.  That's why I felt that I

         3       could support this legislation, but because

         4       there are no time limits, I feel that it really

         5       weakens the remedy that's provided to DOCS.

         6                      Would you consider, if this

         7       doesn't get passed by both houses, having a

         8       discussion with DOCS to find out if there is an

         9       internal time period to resolve these or putting

        10       in statute some additional rules and

        11       regulations?

        12                      ACTING PRESIDENT HOBLOCK:

        13       Senator.

        14                      SENATOR NOZZOLIO:  Mr. President.

        15                      SENATOR STAFFORD:  Mr.

        16       President.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Senator Stafford.

        19                      SENATOR STAFFORD:  I apologize to

        20       the two individuals debating, but I'm sure they

        21       wouldn't mind because there will come a day when

        22       you visit here after you've served in such a

        23       dedicated manner.  We've never been able to have











                                                             
7759

         1       him come back on the floor, but we wouldn't let

         2       him leave today Albany, without introducing and

         3       wishing that he would come more often.  He does

         4       quite well every time he comes to Albany, so

         5       maybe that will relieve that.  Anyway it's

         6       Senator Doug Barclay.

         7                      (Applause)

         8                      ACTING PRESIDENT HOBLOCK:  Good

         9       to see you, Senator.

        10                      SENATOR STAFFORD:  Thank you.

        11       Thank you, Senator, Senator Nozzolio.

        12                      ACTING PRESIDENT HOBLOCK:

        13       Senator.

        14                      SENATOR NOZZOLIO:  Mr. President,

        15       in responding to Senator Abate's question, I

        16       think that, Senator, of course, we would always

        17       be willing to listen to discussion, but the

        18       Department of Corrections under this legislation

        19       is required to promulgate appropriate rules

        20       governing the conduct of this, and certainly

        21       that input that could be made to the Department,

        22       and I would welcome some reasonable discussion

        23       on that issue.











                                                             
7760

         1                      SENATOR ABATE:  And just on the

         2       bill, and in response to Senator Nozzolio, I

         3       believe DOCS has some protocol dealing with most

         4       grievance situations if those grievance

         5       situations haven't been resolved within 90

         6       days.  The property claim, there is no time

         7       limit.

         8                      ACTING PRESIDENT HOBLOCK:  Excuse

         9       me.  Excuse me, Senator Abate.  I know this is a

        10       very important bill.  Can we have some order in

        11       the chamber please, listen to Senator Abate on

        12       this very important bill.

        13                      Senator Abate.  Thank you.

        14                      SENATOR ABATE:  Yes, I believe

        15       the language that surrounds not only grievance

        16       cases, because already DOCS has some language

        17       that says that cases that are grievable must be

        18       resolved within 90 days.  My concern has to do

        19       with property cases, property theft, property

        20       loss.

        21                      I do not believe that there's any

        22       administrative ruling or regulation that

        23       requires DOCS to resolve those cases in any











                                                             
7761

         1       period of time.  Without that, in -- this

         2       legislation becomes problematic.  At any rate, I

         3       look forward to working with you on this

         4       legislation.

         5                      Thank you.

         6                      ACTING PRESIDENT HOBLOCK:

         7       Senator Waldon.

         8                      SENATOR WALDON:  Thank you very

         9       much.

        10                      Would the Senator from Wayne

        11       County permit me to ask a question or two?

        12                      ACTING PRESIDENT HOBLOCK:

        13       Senator Nozzolio, do you yield?

        14                      SENATOR NOZZOLIO:  Certainly, Mr.

        15       President.

        16                      SENATOR WALDON:  Senator, it is

        17       my understanding, and I will accept your

        18       correction, because I know that you're much more

        19       on top of this than I am, but it's my

        20       understanding that the prisoners as a rule of

        21       thumb, before they begin instituting suits, have

        22       an internal process that they go through in the

        23       prison systems, a grievance process, is that











                                                             
7762

         1       correct?

         2                      SENATOR NOZZOLIO:  I mean there

         3       are grievance processes within each prison.

         4       That is correct.

         5                      SENATOR WALDON:  And it is also

         6       my understanding that this move into the courts

         7       by prisoners oftentimes occurs after they have

         8       initiated the initial grievance process, is that

         9       your understanding?

        10                      SENATOR NOZZOLIO:  Mr. President,

        11       no, it is not my understanding and sometimes

        12       that process is used and used legitimately in

        13       terms of the grievance process within each

        14       prison.

        15                      What we're hoping is that, by

        16       this legislation, that administrative process

        17       will be used more often because, frankly, we

        18       have a direct -- "go directly to court"

        19       mentality by many in terms of presenting

        20       grievances that really have no business in

        21       court.

        22                      So, Senator, I disagree with the

        23       comment of "often used".  I think that it's not











                                                             
7763

         1       often enough in terms of using the process and

         2       after that process is exhausted of going to

         3       court.

         4                      SENATOR WALDON:  Mr. President.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Senator Waldon.

         7                      SENATOR WALDON: If the gentleman

         8       from Cayuga County would let me ask a couple

         9       more questions?

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator yield?

        12                      SENATOR NOZZOLIO:  Mr. President,

        13       just for my colleague's benefit, I represent

        14       five counties, I can give each of them.  I will

        15       give you each of them but that doesn't mean

        16       necessarily you ask five questions.  You said

        17       Wayne and Cayuga.  I got Seneca, Yates and

        18       Ontario.

        19                      SENATOR WALDON:  And I didn't

        20       think the area you represent would have any

        21       bearing whatsoever on the questions you would

        22       respond to or the questions I would ask.

        23                      May I continue, Mr. President?











                                                             
7764

         1                      ACTING PRESIDENT HOBLOCK:

         2       Senator Waldon.  Senator Nozzolio, you continue

         3       to yield?  Senator Waldon, you may continue.

         4                      SENATOR WALDON:  Anyway it's fun

         5       to be here sometimes on these issues.  My

         6       concern is, Senator Nozzolio, and let me be

         7       specific and then we can cut right to the

         8       chase.  If someone has, in their relief system,

         9       a legitimate cause that should be aired in

        10       court, I think it is un-American to take that

        11       away from them, but equally as important as

        12       taking away their right to go to court is to

        13       allow the particular superintendent and/or

        14       warden of the facility at which this person may

        15       find him- or herself, to be able to apply

        16       punishment by taking away privileges, maybe not

        17       necessarily cavalierly but at least it appears

        18       that they can cavalierly take away privileges

        19       because someone may feel that he or she has a

        20       right to sue.

        21                      These people are in prison, but

        22       should their rights be deterred to a greater

        23       extent than those who are outside of the











                                                             
7765

         1       prisons? Isn't that what this accomplishes?

         2                      SENATOR NOZZOLIO:  Mr. President,

         3       in response to my colleague's inquiry, I can say

         4       this, that your concern is certainly a valid one

         5       if the situation was stifled by this proposal

         6       before us; but, Senator, it is our intention to

         7       establish a system that is no better for those

         8       who are inmates than the system for those who

         9       are private citizens outside the prison in terms

        10       of accessing the courts.

        11                      There are provisions in this

        12       legislation for prisoners who are seeking

        13       recovery for certain damages to have a waiver of

        14       the court fee that we're asking them to pay, a

        15       fee, I might add, that is only a small portion

        16       of the fee that your citizens and your

        17       constituents and my constituents must pay to

        18       access courts for their own private litigation.

        19       I have to say "private litigation".  This has

        20       nothing to do with any violations of civil or

        21       criminal rights, civil rights that inmates may

        22       claim.

        23                      Also there is, as I mentioned,











                                                             
7766

         1       this fee could be waiveable or reduced depending

         2       on the type of action sought.  The program is

         3       identical to a program that has existed for the

         4       last decade in the Northern District of New York

         5       in the federal court system that established a

         6       partial filing fee program for those who wish to

         7       bring litigation in federal court.  We're

         8       modeling that fee program at the state court

         9       level now based on the federal court model, and

        10       we're trying to reduce the numbers of types of

        11       cases that are brought directly to court, and I

        12       think that, if you heard of the types of cases

        13       and the scope of the problem, if I may, Senator,

        14       in asking you to yield, just in terms of our

        15       dialogue here, that there are approximately, in

        16       terms of litigation right now, one lawsuit for

        17       every two inmates in the system.  Approximately

        18       65,000 inmates in the system today; we have

        19       almost 30,000 lawsuits pending, brought by

        20       inmates in the system.  Many of those lawsuits

        21       may be meritorious, and we're not trying to

        22       stifle those.  What we're saying though is,

        23       there are many lawsuits which have no merit











                                                             
7767

         1       whatsoever, and those are the ones we're trying

         2       to focus.

         3                      SENATOR WALDON:  Mr. President.

         4                      ACTING PRESIDENT HOBLOCK:

         5       Senator Waldon.

         6                      SENATOR WALDON:  May I continue,

         7       Mr. President?

         8                      ACTING PRESIDENT HOBLOCK:

         9       Senator Nozzolio continue to yield?  Senator

        10       Waldon.

        11                      SENATOR WALDON:  Yes, Mr.

        12       President.

        13                      Senator Nozzolio, I was going to

        14       ask you for statistics on the number of cases

        15       pending, et cetera, and you anticipated my

        16       question and shared that information with me.

        17       Being that you have that data clearly, you must

        18       have it there, I keep seeing you looking down at

        19       the paper and then speaking.

        20                      Can you tell us what percentage

        21       of those cases are state court, what percentage

        22       of those cases are in federal court, what

        23       percentage of those 30-plus-thousand cases have











                                                             
7768

         1       been resolved and found to be frivolous, what

         2       percentage have been found to have merit, and

         3       what percentage do not fall under those two

         4       zones?

         5                      SENATOR NOZZOLIO:  Mr. President,

         6       if I may attempt to answer some of Senator

         7       Waldon's questions:  The 30,000 cases I referred

         8       to are those in state court.  Those are not in

         9       federal court, that in terms of federal

        10       litigation, I can tell you that the Northern

        11       District, after hearing or establishing the fee

        12       structure, had a 46 percent decrease in merit

        13       less prison or frivolous prisoner litigation.

        14                      The backlog in the state courts

        15       are what we're trying to get to here, Senator,

        16       and we're looking at 30,000 cases, in other

        17       words, none of which are adjudicated because

        18       they are pending.  These are pending lawsuits.

        19       I don't have statistics for you in terms of

        20       those that are -- have been prisoner litigation

        21       for X period of time that has been adjudged -

        22       adjudicated frivolous.

        23                      Senator Abate, in her comments,











                                                             
7769

         1       mentioned that most cases are not per se

         2       determined frivolous, but I don't have that

         3       information.  What I do have is the model of the

         4        -- the federal system, and I could share with

         5       you some of the types of cases that I'm trying

         6       to prevent.

         7                      I'm trying to prevent those types

         8       of cases, for instance a -- an inmate in the

         9       Mohawk Correctional Facility in this state sued

        10       for a million dollars, sued the New York State

        11       government taxpayers for $1 million because a

        12       guard refused to refrigerate his ice cream

        13       cone.  Unfortunately, it melted.  The prisoner

        14       sued you and I and the taxpayers of this state

        15       for a million dollars.

        16                      There are others like the suit

        17       against the state because an individual could

        18       not perform like Satanic rituals in their jail

        19       cells or because the view outside their cell

        20       window was not picturesque enough or the inmate

        21       who sued the state because prison meals did not

        22       include veal or lamb or oysters; that there was,

        23       of course, the infamous litigation in the North











                                                             
7770

         1       Country in Senator Stafford's area where a

         2       prisoner sued the state claiming they were

         3       wrongfully accused of stealing a two-pound block

         4       of cheese.  Now, that may end up not to be

         5       frivolous, but nonetheless it's the type of

         6       litigation that we're talking about.

         7                      Let me just conclude by the

         8       prisoner who sued the state of New York because

         9       there was razor ribbon on top of the prison

        10       fence, and he believed that that razor ribbon

        11       which is there to prevent escape, of course, as

        12       you well know, that prisoner claimed the razor

        13       ribbon was a violation of his civil rights.

        14                      Those are the types of litigation

        15       we're trying to stop with this proposal.

        16                      SENATOR WALDON:  Senator, I can

        17       accept the information that you've just shared

        18       with myself and our colleagues with the

        19       exception of the ice cream.  As you know,

        20       earlier in the session, Ben and Jerry's played a

        21       very important role in the deliberation of this

        22       body, so on that one situation alone, I might

        23       step back a bit from accepting on its face the











                                                             
7771

         1       information you shared.

         2                      But to be serious, and I've been

         3       frivolous there and facetious, and I hope you

         4       will understand that.  If I may, I have just one

         5       other area I need to cover to help me make my

         6       decision.

         7                      ACTING PRESIDENT HOBLOCK:

         8       Senator Nozzolio, you continue to yield?

         9                      SENATOR NOZZOLIO:  Yes, Mr.

        10       President.

        11                      SENATOR WALDON:  Let me preface

        12       my question to you if I may, Senator Nozzolio,

        13       with this statement.  As I understand the

        14       practices of the court and courts, when you go

        15       before the court and you present your case,

        16       eventually the judge or the jury, whatever the

        17       forum, makes a decision and they say that you

        18       win or you lose and there's a resolution

        19       according to whether you've won or lost in terms

        20       of punishment meted out and/or a settlement of

        21       sorts when it is a situation that lends itself

        22       to settlement or an actual finding by the court

        23       of monetary damages, et cetera, et cetera.











                                                             
7772

         1                      The judge is able to determine

         2       what happens sometimes directed by the jury, but

         3       in this situation, the Commissioner of

         4       Correction, if I understand your bill correctly,

         5       will have the ability to take away time off the

         6       good behavior and to take away visitation rights

         7       if he deems that these actions are frivolous,

         8       and I want to know is that something that you

         9       support on its merits, do you see any immorality

        10       in that kind of ability on the part of the

        11       commissioner, or do you feel that that's really

        12       what the commissioner should be permitted to do?

        13                      SENATOR NOZZOLIO:  Mr.

        14       President.

        15                      ACTING PRESIDENT HOBLOCK:

        16       Senator Nozzolio.

        17                      SENATOR NOZZOLIO:  In response to

        18       my colleague's question, I -- no, Senator, we

        19       are not entrusting with this bill the Department

        20       of Corrections as the overseer of those law

        21       suits and as the decider of whether or not those

        22       prisoners' lawsuits are, in fact, frivolous.

        23       We're suggesting and establishing sanctions for











                                                             
7773

         1       prisoners who are determined by the courts to

         2       bring frivolous lawsuits, so the determination

         3       is made by the court, Senator, as I think you

         4       would like it to be, as I would like it to be,

         5       and they are the determining -- there the

         6       determining factor is the quality of the

         7       lawsuit.  Then, if a determination is made by

         8       the court, it will be up to the commissioner to

         9       take sanctions against those who have brought

        10       frivolous litigation, the type of sanctions that

        11       you mentioned, eliminating or reducing time off

        12       for good behavior, also reducing the amount of

        13       visitation rights that a prisoner may have.

        14                      SENATOR WALDON:  Last question if

        15       I may, Mr. President.

        16                      ACTING PRESIDENT HOBLOCK:

        17       Senator Waldon.  Senator Nozzolio, you continue

        18       to yield?

        19                      SENATOR NOZZOLIO:  Yes, Senator.

        20                      SENATOR WALDON:  Senator

        21       Nozzolio, are you saying that the commissioner

        22       can exact this penalty, taking time off for good

        23       behavior, et cetera, after one time that the











                                                             
7774

         1       person is determined to have brought a frivolous

         2       suit or if it is when the person having been

         3       found guilty of bringing a frivolous action

         4       decides to do it again and again and again and

         5       again?

         6                      SENATOR NOZZOLIO:  Mr. President,

         7       in response to my colleague, let me read page 3

         8       of the proposed legislation.  What we're

         9       suggesting by this law, proposed law, is that

        10       upon a determination by a court that a complaint

        11       or petition filed by a prisoner incarcerated

        12       within the state is frivolous, the court reports

        13       that finding to the commissioner.  Then the

        14       commissioner, his representative have this

        15       authority by this legislation we are taking

        16       today to determine whether sanctions shall be

        17       applied, the sanctions we list.  They may

        18       include but not be limited to limiting

        19       visitation privileges or eliminating

        20       recreational privileges or other activities, but

        21       we're also requiring the commissioner, however,

        22       to establish rules and regulations so that there

        23       is notice to the citizens of this state, to the











                                                             
7775

         1       Legislature and to those prison inmates, the

         2       types of sanctions that could be proposed and

         3       enacted if a judicial determination is made that

         4       this litigation -- that this prisoner litigation

         5       is frivolous.

         6                      SENATOR WALDON:  Thank you very

         7       much, Senator Nozzolio.

         8                      Mr. President, if I may, on the

         9       bill.

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator Waldon, on the bill.

        12                      SENATOR WALDON:  Again, Senator

        13       Nozzolio, I appreciate your indulgence.  The

        14       information you shared with me was enlightening

        15       in terms of your intent and what this proposal

        16       will accomplish.

        17                      I am very sensitive to the

        18       financial situation of the state of New York and

        19       I'm very sensitive to methods and means by which

        20       we should move to save money for the state of

        21       New York.  We are in a crisis, a budgetary

        22       crisis and a fiscal crisis.  However, I think of

        23       some things that we do portend and indicate that











                                                             
7776

         1       we will have a disastrous result down the road.

         2                      This, in and of itself, will not

         3       create the disaster but I think in regard to our

         4       prison systems, our prison system, I should say,

         5       when you take away the educational opportunity

         6       and you compound that by instituting the

         7       policies which this proposal will surely result

         8       in, when you compound that with taking away the

         9       recreation, when you compound that with taking

        10       away something that's as silly as the weights

        11       that the prisoners use to exercise themselves,

        12       when you make the system so punitive, so

        13       aggressive, so repressive as it is in places

        14       like Tennessee in this state, I think we're

        15       creating a problem down the road and we will

        16       have Attica revisited.

        17                      I don't think that's your intent,

        18       Senator Nozzolio.  I believe sincerely that you

        19       think that what you're doing is the right thing,

        20       but I believe that we must view these potentials

        21       in terms of the legislation we're proposing with

        22       a greater vision and a broader scope.  I think

        23       that we are, with what we do in this chamber,











                                                             
7777

         1       creating a potential for disaster in regard to

         2       the prisons and the prisoners and perhaps more

         3       importantly, although I'm sure the prisoners

         4       won't agree with this, the people who guard

         5       them, the correctional officers, and so I can

         6       not support this because I think it's another

         7       nail in the coffin of future disaster which may

         8       occur in our prisons, and I hope it doesn't

         9       happen.

        10                      Billy Wildey, a dear friend of

        11       mine, was at Attica with the publisher of the

        12       Amsterdam News and taking the pictures of the

        13       bodies stacked at Attica, and I think that was

        14       awful, and I hope it never happens again, but I

        15       think the potential from some of the things we

        16       do here is there.

        17                      So I will not be able to support

        18       you this time, Senator Nozzolio, in regard to

        19       this legislation.

        20                      Thank you, Mr. President.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Senator Dollinger.

        23                      SENATOR DOLLINGER:  Mr.











                                                             
7778

         1       President, will the sponsor yield to just one

         2       question?

         3                      ACTING PRESIDENT HOBLOCK:

         4       Senator Nozzolio, do you yield?

         5                      SENATOR NOZZOLIO:  Certainly.

         6                      SENATOR DOLLINGER:  Mr. Chairman

         7       we have, under the C.P.L.R., a section for

         8       frivolous lawsuits under section 8001 of the

         9       C.P.L.R. Do you know if that's been used in

        10       prisoner litigation and, if so, how extensively

        11       the sanctions have been used under that?

        12                      I would add, through you, Mr.

        13       President, I don't know whether that specific

        14       section applies to the Court of Claims, but I

        15       believe, my recollection is that it does, so I'm

        16       just trying to get information.

        17                      SENATOR NOZZOLIO:  Senator, let

        18       me repeat your question so I understand it.

        19       You're asking if section 8 of the C.P.L.R. -

        20       rephrase the question, Senator.

        21                      SENATOR DOLLINGER:  My question

        22       is this:  The C.P.L.R. now contains a section, I

        23       believe it's section 8001, 8002 which allows the











                                                             
7779

         1       courts to impose sanctions on frivolous law

         2       suits.  My understanding is, and this is where

         3       I'm looking for some guidance from Corrections,

         4       my understanding is that that section applies to

         5       all claims of those brought in the Supreme

         6       Court.  What I'm not sure of, whether it's ever

         7       been brought in the Court of Claims, and my

         8       question is, do you know whether it applies to

         9       the Court of Claims, number one, and number two,

        10       whether the Court of Claims has imposed those

        11       sanctions on frivolous prisoner litigation?

        12                      I'm trying to find out through

        13       you, Mr. President, whether there is already a

        14       disincentive in our system for the prisoner to

        15       file frivolous claims because those claims can

        16       be brought or those claims can be determined to

        17       be frivolous and sanctions and costs can be

        18       imposed on them.

        19                      SENATOR NOZZOLIO:  Mr. President,

        20       in response to Senator Dollinger's question, I

        21       said I do not know specifically if a sanction

        22       currently exists in the C.P.L.R. that has any

        23       effect on prisoner litigation.  What I certainly











                                                             
7780

         1       can tell you is that whatever that -- if there

         2       is a sanction, it certainly is not having any

         3       effect on -- relative to the prisoner litigation

         4       issue and 30,000 cases now pending, that backlog

         5       is significant.  It's compared with 16,000 cases

         6       pending only six short years ago, Mr. President,

         7       so that there has been a dramatic escalation of

         8       those lawsuits.

         9                      I'd have to say, in response to

        10       the Senator's question, whatever sanction is

        11       there now, it's either not being enforced or is

        12       not significant enough.

        13                      SENATOR DOLLINGER:  Thank you,

        14       Mr. President.

        15                      SENATOR LEICHTER:  Mr.

        16       President.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Senator Leichter.

        19                      SENATOR LEICHTER:  Yes.  If

        20       Senator Nozzolio would yield, please.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Senator Nozzolio, do you yield?

        23                      SENATOR NOZZOLIO:  Yes, Senator.











                                                             
7781

         1                      SENATOR LEICHTER:  Senator

         2       Nozzolio, did I understand you to say that there

         3       are 30,000 cases pending?

         4                      SENATOR NOZZOLIO:  Yes, Senator,

         5       I said 30,000 by former Attorney General Oliver

         6       Koppell's report last year.  The Attorney

         7       General's backlog of cases, to be specific, was

         8       29,122 lawsuits filed by prison inmates as of

         9       April.

        10                      SENATOR LEICHTER:  Senator

        11       Nozzolio, if you would be good enough to

        12       continue to yield.

        13                      Senator, isn't it a fact that

        14       that figure does not include only active

        15       litigation, but does include notices of intent

        16       to sue the state?

        17                      SENATOR NOZZOLIO:  In response to

        18       Senator Leichter's question, I'm not certain,

        19       Mr. President, how to define active litigation.

        20       If you're referring to those cases, Senator, if

        21       I may, in response to your question, whatever

        22       case is brought, the Attorney General is -- by

        23       prison inmates, the Attorney General is required











                                                             
7782

         1       to defend and prepare, as you may well know, you

         2       have to prepare for a case regardless of its -

         3       whether it's in the middle of a trial or if

         4       there's a notice of claim.

         5                      So, Senator, by your question if

         6       you're suggesting that there may not be 30,000

         7       cases now being tried, it's probably correct,

         8       but there are certainly 30,000 cases that must

         9       be defended and the preparation time and the

        10       effort for that defense must be taken by the

        11       nature of them being filed.

        12                      SENATOR LEICHTER:  Senator, if

        13       you have would continue to yield.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Senator Nozzolio, do you continue to yield?

        16                      SENATOR NOZZOLIO:  Yes, Mr.

        17       President.

        18                      ACTING PRESIDENT HOBLOCK:

        19       Senator Leichter.

        20                      SENATOR LEICHTER:  This has been

        21       precisely my point.  How many cases have to be

        22       defended?  The fact of the matter is, Senator,

        23       that if it's a notice of intent to sue the











                                                             
7783

         1       state, there, frankly, is actually nothing to

         2       defend.

         3                      How many cases have actually been

         4       commenced by the service of a summons and

         5       complaint?  That's what starts a case, and I

         6       agree with you, once a summons and complaint has

         7       been filed, then it becomes the obligation of

         8       the Attorney General to take some action.

         9       Notice of intent to sue is usually just filed to

        10       preserve certain rights and so on, does not

        11       require any response by the Attorney General.

        12                      I think the 30,000 figure,

        13       Senator, I understand it doesn't come from you

        14       and you're just quoting Attorney General

        15       Koppell, but I think upon examination, there

        16       aren't 30,000 cases.  These are not cases.

        17       Notice of intent to sue is not a case.  Isn't

        18       that -- isn't that true?

        19                      SENATOR NOZZOLIO:  Senator, let

        20       me respond to that question another way.  Again,

        21       quoting the former Attorney General who says

        22       that 20 percent of his office's budget or about

        23       $15 million a year is exclusively required to











                                                             
7784

         1       defend these cases, regardless of what stages

         2       they may be in.

         3                      SENATOR LEICHTER:  Senator, I -

         4       if you'll please continue to yield.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Senator Nozzolio, you continue to yield?

         7                      SENATOR NOZZOLIO:  Sure.

         8                      SENATOR LEICHTER:  Senator, I

         9       accept that as a meaningful figure.  I have not

        10       seen that particular statement that came from

        11       the former Attorney General, but I just want to

        12       say that talking of 30,000 cases, and I

        13       appreciate the error is not yours, but I think

        14       there's been misleading and what I'm trying to

        15       find out is really how much of a burden is there

        16       on the courts, how much of a burden is there on

        17       the Attorney General's offers in defending these

        18       cases and, in that connection, Senator, have we

        19       received any memorandum from OCA saying the

        20       courts of this state are overburdened by inmate

        21       litigation?

        22                      SENATOR NOZZOLIO:  Senator.

        23                      ACTING PRESIDENT HOBLOCK:











                                                             
7785

         1       Senator Nozzolio.

         2                      SENATOR NOZZOLIO:  I'd like this

         3       question to be answered this way, and I'll

         4       reiterate that it requires at least 20 percent

         5       of the Attorney General's effort to defend these

         6       matters.  If it costs -- and I believe this to

         7       be a low estimate -- $15 million a year, if we

         8       had 16,000 cases pending six years ago, 29,000

         9       pending today, I believe there's certainly a

        10       dramatic growth and a substantial sum of money

        11       used to defend inmate lawsuits.

        12                      SENATOR LEICHTER:  Senator

        13       Nozzolio, if you continue to yield, the figure

        14       that you've just given me shows that, in fact,

        15       there was no increase in inmate litigation.  You

        16       say that how many -- how many years ago was

        17       there 16,000?

        18                      SENATOR NOZZOLIO:  Yes, Senator.

        19                      SENATOR LEICHTER:  How many?

        20                      SENATOR NOZZOLIO:  Six years ago

        21       16,000 cases.

        22                      SENATOR LEICHTER:  And how many

        23       inmates did we have this year?











                                                             
7786

         1                      SENATOR NOZZOLIO:  This year

         2       29,000 cases.  That's one lawsuit for every two

         3       inmates in this state.

         4                      SENATOR LEICHTER:  Senator, how

         5       many inmates did we have six years ago and how

         6       many inmates do we have now?

         7                      SENATOR NOZZOLIO:  We have now

         8       about 64,000 inmates, 62,000 inmates in our

         9       system.

        10                      SENATOR LEICHTER:  And how many

        11       did we have about six years ago?

        12                      SENATOR NOZZOLIO:  I'm not sure,

        13       Senator.

        14                      SENATOR LEICHTER:  Well, I'm

        15       taking a guess, Senator, but I would say it was

        16       roughly 45,000 something in that figure, so that

        17       in part, the increase in the number of cases

        18       just reflects the fact that you have so many

        19       more inmates, and when I just said that your

        20       figures do not show any increase, they do show

        21       some of because there's been an increase greater

        22       than the number of inmates, but the -- to a

        23       significant respect, the increase in the number











                                                             
7787

         1       of cases is due to the fact that we're

         2       incarcerating more people, so it isn't as if the

         3       inmates who are currently in jail are filing

         4       many more lawsuits than they did before.

         5                      Senator, if you'd be good enough

         6       to continue to yield.

         7                      ACTING PRESIDENT HOBLOCK:

         8       Senator Nozzolio, do you continue to yield?

         9                      SENATOR NOZZOLIO:  Yes.

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator Leichter.

        12                      SENATOR LEICHTER:  Senator, I

        13       asked you a question of whether OCA or the chief

        14       judge or anybody from the court system had said

        15       these cases are a burden upon our courts?

        16                      SENATOR NOZZOLIO:  I have no

        17       indication from the OCA saying that they're a

        18       burden on the courts.  However, I can read, I

        19       can see 30,000 in front of my face, Senator, and

        20       say that 30,000 ice cream cones melting and

        21       razor ribbon wire being a violation of

        22       constitutional rights and Satanic rituals can't

        23       be held in my cell, I look at those individual











                                                             
7788

         1       cases, Senator, whether they are 16,000 or

         2       30,000, as being burdens on the court, look at

         3       the 20 percent of the Attorney General's time

         4       taken to defend these lawsuits, to me I don't

         5       need a number from OCA, Senator, telling us that

         6       this is a burden.  I do not have for you a memo

         7       from OCA on this bill.

         8                      SENATOR LEICHTER:  Mr. President,

         9       if Senator Nozzolio would continue to yield.

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator Nozzolio?

        12                      SENATOR NOZZOLIO:  Yes, Mr.

        13       President.

        14                      SENATOR LEICHTER:  You keep on

        15       mentioning the figure 30,000, but I thought that

        16       your dialogue and mine had established that

        17       there are not 30,000 cases.  Cases, Senator

        18       Nozzolio, are where a summons and complaint has

        19       been filed.  Many of these, if not most of

        20       these, involve notices of intent to sue, where

        21       you scribble on them, "I intend to sue."  There

        22       is no follow-up.  No action is required by the

        23       courts.  No action is required by the Attorney











                                                             
7789

         1       General, and you conceded that the 30,000

         2       includes those notices of intent to sue.

         3                      So we don't have 30,000 cases,

         4       and we shouldn't use that figure because I think

         5       it is misleading, even if it comes from somebody

         6       as distinguished as the former Attorney General,

         7       who used to be my roommate, but he makes

         8       mistakes, too.

         9                      But let me ask you this,

        10       Senator.  You keep on mentioning about the "ice

        11       cream" case, and when I first heard you talk

        12       about it, I said, "Oh, that's ridiculous,

        13       absurd."

        14                      Now that I take a look here at a

        15       memo from the Prisoners Legal Services, it says,

        16       and I'm quoting, "Even the 'ice cream' lawsuit,

        17       which was filed by the prisoner on his own and

        18       that was mentioned in a legislative memorandum,

        19       has not been dismissed by the federal court

        20       because it raises other substantial issues."

        21                      Is that your understanding?

        22                      SENATOR NOZZOLIO:  I didn't hear

        23       the first part of your question, Senator.  Could











                                                             
7790

         1       you repeat it, please?

         2                      SENATOR LEICHTER:  Well, the

         3       first part of my question is that the "ice

         4       cream" case that you referred to with a great

         5       deal of passion and vehemence, understandably,

         6       because, as you describe, it sounds like a

         7       misuse of the judicial process, but I have a

         8       memorandum here from the Prisoners Legal

         9       Services of New York which says that the federal

        10       court has not dismissed that case because it

        11       raises other substantial issues.  It is not a

        12       frivolous case according to the federal court.

        13                      Is that your understanding?

        14                      SENATOR NOZZOLIO:  It's not my

        15       understanding, Senator, and maybe there's two

        16       ice cream cones out there melting that we have

        17       litigation over.

        18                      I think the point, Senator, is

        19       one that you need not -- that you need not gloss

        20       over, that you made just this moment; that if

        21       the courts do not determine these cases to be

        22       frivolous, then there will be no sanctions

        23       taken; that we're not trying to impede anybody's











                                                             
7791

         1       right to access the courts.  We're only saying

         2       that let's use some prudence in accessing those

         3       courts, and let's put prisoners on a level

         4       playing field or on a more level playing field

         5       with your constituents and mine who are trying

         6       to access the courts with legitimate claims, yet

         7       they have to spend much more funds to do so.

         8                      SENATOR LEICHTER:  Senator

         9       Nozzolio, if you will continue to yield.

        10                      You say you are not trying to

        11       impede prisoners?  Of course you are trying to

        12       impede prisoners.

        13                      And, by the way, I have no

        14       problem in doing that if you can establish

        15       there's a problem.  What I'm concerned about is

        16       you talk about 30,000 cases; then we find out

        17       there aren't 30,000 cases.  You talk about this

        18       frivolous "ice cream" case; you find out the

        19       federal court said that it raises substantial

        20       questions.  You talk about the great burden on

        21       our court system, and then we find out that OCA

        22       has never asked us to do anything about it.

        23                      Then you say that all you want is











                                                             
7792

         1       a level playing field.  Well, let me ask you

         2       this.  If you or I want to bring an action in

         3       the Court of Claims, are we required to post any

         4       filing fee?

         5                      SENATOR NOZZOLIO:  Let me refer

         6       to Section II of this bill that deals with Court

         7       of Claims.  "The filing fee would not apply to

         8       any claimant filing for the appropriation of

         9       real or personal property or interest thereon."

        10                      So, Senator, in terms of an

        11       inmate accessing the Court of Claims for any

        12       taking of property or any seizing therefore

        13       would not be subjected to this filing fee.  It

        14       would be also refundable if the inmate provided

        15       a motion, if it was, in fact, a successful

        16       claimant for some other conclusion of a cause of

        17       action that may have not directly enveloped the

        18       seizure of real or personal property; so,

        19       therefore, I believe if you look at that

        20       provision of the bill, see that the inmate is

        21       protected and is given those types of provisions

        22       in accessing Court of Claims actions, I think

        23       that you certainly would feel that your question











                                                             
7793

         1       was answered.

         2                      SENATOR LEICHTER:  Senator, if

         3       you would be kind enough to continue to yield

         4       because I want to clarify this point.

         5                      I read that section of the law,

         6       and you will agree that in some instances you

         7       require a $50 filing fee with the Court of

         8       Claims.  Now, I am advised -- I don't practice

         9       in that court and, therefore -- so I base this

        10       just on what I've inquired and received an

        11       answer to -- that when you and I bring an action

        12       in the Court of Claims that we are not required

        13       to file any filing fee for any action in the

        14       Court of Claims.  Is that the case?

        15                      SENATOR NOZZOLIO:  There is a

        16       refund -- if I understand your question,

        17       Senator, you are asking under what provisions is

        18       there a refund available?

        19                      SENATOR LEICHTER:  No, no, that

        20       wasn't my question at all.

        21                      Senator, let me repeat it.  When

        22       you or I, not as inmates -- which we're not,

        23       although sometimes we feel we're inmates of a











                                                             
7794

         1       different sort of institution.  But when

         2       somebody who is not an inmate files an action in

         3       the Court of Claims, I am advised that there is

         4       no filing fee in the Court of Claims for any

         5       action by somebody who is not an inmate; and I'm

         6       asking you if that is correct?

         7                      SENATOR NOZZOLIO:  It is my

         8       understanding, yes, Senator.

         9                      SENATOR LEICHTER:  All right.

        10       Senator, you said that you were trying to create

        11       a level playing field, but is it a level playing

        12       field when you require fees by inmates when no

        13       fees are required by persons who are not

        14       inmates?

        15                      SENATOR NOZZOLIO:  Senator, when

        16       a person accesses the Court of Claims, they are

        17       doing what a citizen does outside the prison

        18       system.  They are doing so because of an

        19       appropriation of real or personal property or

        20       for any interest thereon.  No fee is required

        21       for those citizens seeking redress.  No fee is

        22       required under this bill for those inmates

        23       seeking the same type of action in the same











                                                             
7795

         1       court for the same purpose.  We're saying that's

         2       identical.  It's level.  It's the same.

         3                      SENATOR LEICHTER:  But, Senator,

         4       with all due respect, I believe you're being a

         5       little disingenuous because we just established

         6       that there are other proceedings in the Court of

         7       Claims where a non-inmate will not pay a fee,

         8       but under your bill an inmate now will have to

         9       pay a fee; and, therefore, my question is, are

        10       you creating a level playing field, or are you

        11       creating an unlevel playing field by imposing a

        12       filing fee on inmates which non-inmates do not

        13       have to pay?

        14                      SENATOR NOZZOLIO:  Senator.  Mr.

        15       President, if I may respond.

        16                      The characterization of my answer

        17       as disingenuous, I think, is an effort to try to

        18       hide the matter here, Senator.  I am talking

        19       about identical fees or lack of identical fees

        20       for identical actions.  If you go into the Court

        21       of Claims and sue for the seizure of real or

        22       personal property, you do not pay a fee.  If you

        23       go into the Court of Claims as a prison inmate











                                                             
7796

         1       and sue for real or personal property or

         2       interest thereon, you will not pay a fee.

         3                      Senator, to characterize that as

         4       disingenuous is, I think, frankly, an insult.

         5       It is absolutely identical.  Now, if a prison

         6       inmate is suing the State of New York for

         7       redress of another type of a grievance, not the

         8       seizure of real or personal property, then a fee

         9       is required.

        10                      Now, to say that that is an

        11       unlevel playing field I think is a disingenuous

        12       response on your behalf, to use your words.

        13                      SENATOR LEICHTER:  Mr.

        14       President.  Mr. President.

        15                      ACTING PRESIDENT HOBLOCK:

        16       Senator Leichter.

        17                      SENATOR LEICHTER:  If Senator

        18       Nozzolio will continue to yield.

        19                      ACTING PRESIDENT HOBLOCK:

        20       Continue to yield, Senator Nozzolio?

        21                      SENATOR LEICHTER:  Senator

        22       Nozzolio, if I was disingenuous I will

        23       apologize, but let's see who is disingenuous.











                                                             
7797

         1                      What I was trying to establish

         2       and I thought you had really made it very clear

         3       by your answer which is that there are instances

         4        -- instances where non-inmates suing in the

         5       Court of Claims such as, let's say, an action

         6       against the State of New York for negligence

         7       will not have to pay a filing fee, where you are

         8       now imposing upon inmates a filing fee.

         9                      SENATOR NOZZOLIO:  Senator, the

        10       fee is a $50 refundable fee.  When the inmate

        11       who sues for negligence or sues for any other

        12       action not related to the seizure of property,

        13       that fee -- there is a fee, correct?  My

        14       response is I hope I clarified this point for

        15       you and for the debate that there is a fee.

        16       That fee is refundable upon successful

        17       completion of that action.

        18                      SENATOR LEICHTER:  Senator, but

        19       if the action is resolved other than upon a

        20       judgment in favor of the inmate, such as the

        21       case is settled and so on, then that fee would

        22       not be refundable.  The point is, Senator, I

        23       think you -











                                                             
7798

         1                      SENATOR NOZZOLIO:  Senator, did

         2       you say -- if you will yield, sir?  Mr.

         3       President.  If Senator Leichter will yield.

         4                      ACTING PRESIDENT HOBLOCK:

         5       Senator Leichter, do you yield?

         6                      SENATOR LEICHTER:  Yes.

         7                      SENATOR NOZZOLIO:  Thank you,

         8       Senator.  Upon a motion, under the CPLR, a

         9       successful litigant in the Court of Claims can

        10       apply to have that filing fee refunded, Senator,

        11       in response to your question.

        12                      SENATOR LEICHTER:  Mr.

        13       President.  I thank Senator Nozzolio for being

        14       as courteous as he always is.  I'm sorry if I

        15       implied that there was anything disingenuous

        16       about his answers.  I think what is true to say

        17       it took us a long time, I think, to come to what

        18       is fairly clear and plain, which is, that you

        19       are imposing fees on inmates for certain actions

        20       in the Court of Claims where non-inmates do not

        21       have to pay the fee; and since you are doing

        22       this, there is no sense in trying to talk about,

        23       "Well, I'm not imposing this for actions of











                                                             
7799

         1       appropriation of real property or personal

         2       property," or there is no reason in talking

         3       about refundable, "Well, it's refundable."  The

         4       fact is you're doing it, and my objection is

         5       just to your saying you are creating a level

         6       playing field, when in fact what you're doing is

         7       the exact opposite, is not to create a level

         8       playing field; and the real issue is, is there a

         9       reason, is there a justification for saying

        10       inmates are going to be more restricted as to

        11       the lawsuits they bring?

        12                      The reason that you give is that

        13       there are 30,000 cases.  Then we look at it and

        14       there aren't 30,000 cases.  There are far, far

        15       fewer because most of these involve notices of

        16       intent to sue.

        17                      Then, when we look at it further,

        18       and I have a statement here from a judge from

        19       the Court of Claims who states that in the Court

        20       of Claims -- he says there are 1,158 prisoner

        21       cases pending as of June 1994.

        22                      The point is I don't think that

        23       the case has been made that the courts are











                                                             
7800

         1       overrun with prisoner litigation to justify

         2       saying we're going to limit inmates as to the

         3       manner in which they bring you lawsuits.

         4                      I also point out that this bill

         5       sets up, I think, a somewhat cumbersome,

         6       administratively difficult procedure in the

         7       effort to try to deter inmates from bringing

         8       lawsuits, where they have to inquire how much

         9       money they have in their account and then they

        10       have to get a certified copy; and until they get

        11       that certified copy, they can't bring a lawsuit

        12       unless they file an affidavit.  I submit that

        13       this is probably going to end up just creating

        14       more work.

        15                      If there is a real problem, a

        16       serious problem, then some action is justified.

        17       I don't think we have a serious problem.  The

        18       courts are pretty well able to defend themselves

        19       against frivolous lawsuits.  Let me tell you,

        20       I'm an attorney and it's not very difficult to

        21       defend a frivolous lawsuit.  In fact, some years

        22       ago, I defended a frivolous lawsuit against a

        23       bank by somebody who kept on bringing lawsuits.











                                                             
7801

         1       I went into court and the judge issued an order

         2       that this particular person could not start

         3       another lawsuit without getting permission of

         4       the court.

         5                      So the courts have a

         6       self-interest in protecting themselves.  They

         7       have a means of doing it.  They haven't asked

         8       for our help in this particular case, and I

         9       really don't see the reason or the justification

        10       for this bill and this hue and cry that, my God,

        11       we've got to protect ourselves against inmates

        12       bringing all sorts of unreasonable lawsuits, and

        13       we're talking about lawsuits not notices of

        14       intent to sue.

        15                      I think Senator Waldon made a

        16       very excellent point about the importance of not

        17       abridging inmates' constitutional rights to such

        18       an extent that you are going to create problems,

        19       and I think it's particularly important that in

        20       a system that by its very nature is closed, as a

        21       prison system is, that there be some safety

        22       valve, whether it's a Commissioner of

        23       Correction, whether it's an ombudsman, whether











                                                             
7802

         1       its recourse to the courts, and that is

         2       important.  And I think to abridge this absent a

         3       clear showing that there is a real problem that

         4       we've got to respond to, I don't think is

         5       justified.

         6                      I just finally want to say that

         7       another aspect of this bill that troubles me is

         8       that if an inmate brings a frivolous suit, then

         9       a whole range of administrative punishment can

        10       be imposed by the Commissioner.  The ones that

        11       are listed in the bill are taking away

        12       recreation rights.  That doesn't upset me that

        13       much; but it just points these out as among a

        14       whole range, and within that range are also

        15       taking away good time, probably solitary

        16       confinement, and so on.  I think that's -- to my

        17       mind is far too draconian and it's far too

        18       strict a remedy.  I don't think that -- to apply

        19       that sort of a sanction and to have that sort of

        20       a deterrence in an effort to keep inmates from

        21       challenging procedures that they feel are

        22       legally or constitutionally wrong, I don't think

        23       is something that we ought to do.











                                                             
7803

         1                      I don't see a problem.  I see a

         2       remedy here or a so-called remedy which is very

         3       cumbersome and may be very punitive.  I think

         4       the bill is a mistake.

         5                      ACTING PRESIDENT HOBLOCK:

         6       Senator Paterson.

         7                      SENATOR PATERSON:  Mr.

         8       President.  If Senator Nozzolio will yield for a

         9       moment?

        10                      ACTING PRESIDENT HOBLOCK:

        11       Senator Nozzolio, will you yield?

        12                      SENATOR NOZZOLIO:  Yes, Mr.

        13       President.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Senator Paterson.

        16                      SENATOR PATERSON:  Senator

        17       Nozzolio, I received in the mail a brief from an

        18       inmate who wants to overturn a murder convic

        19       tion.  It was about 75 pages long, including his

        20       letter to me where he was complaining about the

        21       brief that his attorney wrote.  The brief was

        22       about 40 pages, and eventually the attorney told

        23       the inmate that she was not going to submit his











                                                             
7804

         1       brief because she didn't think the arguments

         2       were meritorious, and this is a dispute, and you

         3       get a lot of letters from inmates, and they are

         4       long and drawn out, and some of the issues don't

         5       really relate to the cases in the fashion that

         6       they wish that they would.

         7                      You have a few inmates generating

         8       a lot of cases in the litigious nature of

         9       continually challenging the court hoping that

        10       they will be successful, and so I understand the

        11       spirit of your legislation.  But if you would

        12       yield for a question, I would certainly ask you

        13       if in a sort of a consent decree as there was in

        14       the case of Kaslowski versus Coughlin that the

        15       separation of powers would be violated by the

        16       passing of your bill in the sense that it would

        17       allow the Commissioner of the Department of

        18       Corrections to impose a penalty on visitation

        19       over an issue that does not generate from a

        20       violation of a visitation and which would really

        21       be very much opposite to what that case holds?

        22                      ACTING PRESIDENT HOBLOCK:

        23       Senator Nozzolio.











                                                             
7805

         1                      SENATOR NOZZOLIO:  Yes, Mr.

         2       President, in response to Senator Paterson's

         3       question.

         4                      Senator, the Commissioner under

         5       this bill before us is only empowered to provide

         6       sanctions at his discretion -- only if the

         7       courts have determined that there is, in fact, a

         8       frivolous lawsuit.  That determination must be

         9       made by the judiciary and not by the Executive;

        10       and once that determination is made, the Execu

        11       tive must follow rules which are promulgated,

        12       that we need to ensure that those rules are not

        13       arbitrary and that those rules go through the

        14       same rule-making process that any other

        15       executive rule must undergo.

        16                      SENATOR PATERSON:  Mr.

        17       President.

        18                      ACTING PRESIDENT HOBLOCK:

        19       Senator Paterson.

        20                      SENATOR PATERSON:  I understand

        21       what the Senator is trying to accomplish; but,

        22       Senator, isn't it true that even though the

        23       decision is made by a court, the court is making











                                                             
7806

         1       a decision with respect to frivolous lawsuits?

         2                      We are now asking the

         3       Commissioner to apply it in a way that is

         4       detrimental to the inmate's visitation time

         5       which does not relate to the lawsuits, and

         6       that's why I say that your legislation would

         7       probably be overturned based on this particular

         8       case.

         9                      Don't you think it's possible

        10       that it would be overturned?

        11                      SENATOR NOZZOLIO:  Mr. President,

        12       in response to Senator Paterson's question, I

        13       say, Senator, that the inmate who presents a

        14       frivolous lawsuit just as the citizen of your

        15       district or my district who brings the same

        16       frivolous lawsuit would be charged with

        17       sanctions.  The court, in a case of our

        18       constituent, would be charging the citizen with

        19       economic sanctions.

        20                      What we're saying is that the

        21       Commissioner of Corrections would have the right

        22       and authority under this law to provide

        23       sanctions after the Court determined that











                                                             
7807

         1       sanctions were, in fact, in order.  Those

         2       sanctions would be limited to the discretion of

         3       the Commissioner only in the areas of limitation

         4       of visiting privileges, limitation of

         5       recreational or other activities.  We specify in

         6       the statute exactly what those sanctions could

         7       be if imposed upon an inmate who brings a

         8       frivolous lawsuit.

         9                      SENATOR PATERSON:  Thank you, Mr.

        10       President.

        11                      Senator, what I would suggest is

        12       that I don't think that it will be possible to

        13       accomplish what you are seeking, but what I

        14       would think would be possible is that the exact

        15       same economic sanctions that you describe which

        16       are in a sense imposed on citizens be imposed on

        17       the inmates and that way you would be able to

        18       achieve exactly the purpose that you're trying

        19       to achieve without having to overreach the

        20       standard and subject this legislation to

        21       overturn on a constitutional basis.

        22                      Otherwise, on the bill, what I

        23       would say is the Attorney General reported











                                                             
7808

         1       29,122 cases, but as Senator Leichter adroitly

         2       pointed out there were a number of these cases

         3       where there was a notice of an intent to sue but

         4       actually no lawsuit.  Now, you can't defend

         5       against a lawsuit if you don't know what it is.

         6       Just a fact that there was a notice does not

         7       impose on the Attorney General's office any

         8       greater duty than existed previously, other than

         9       the fact that you know a lawsuit is coming.

        10                      What seems to be the case is that

        11       there is a significantly less number of cases

        12       than it might first appear.  The doubling and

        13       tripling of cases over the last ten or fifteen

        14       years I think is attributable to the increase in

        15       the number of inmates and, therefore, an

        16       increase in the number of cases.  I don't even

        17       know that the increases on a per capita basis

        18       would correspond to the corollary increase in

        19       the number of prisoners.

        20                      But what we do notice -- what

        21       Prisoners Legal Services submitted to us is

        22       their consulting with a Court of Claims Judge by

        23       the name of Donald Corbett, who said that in











                                                             
7809

         1       June of 1994 that he could account for 1158

         2       Court of Claims cases which is about 15,000 less

         3       than the Attorney General reported.

         4                      Now, I understand that the

         5       sponsor was using the Attorney General's figures

         6       to put this legislation together, so there is

         7       certainly no disingenuous behavior on the part

         8       of the sponsor.  He's just relying on those

         9       figures, but the Attorney General's figures are

        10       incorrect in the sense that the number of

        11       notices are really what create the high number

        12       that there appears to be.

        13                      Also, there were only 78 cases in

        14       the Court of Claims that had existed for over

        15       two years, so that would demonstrate that the

        16       Court of Claims is dealing with these cases in a

        17       seasonable time period.  So I think that the

        18       legislation would be really better placed at a

        19       point that we can establish that there really is

        20       a tremendous increase in the number of cases

        21       filed by prisoners and also where you have

        22       inmates filing frivolous cases.

        23                      I think there are a few











                                                             
7810

         1       individuals -- few in number, but they generate

         2       a lot of cases; and I think, as Senator Leichter

         3       said earlier, that the courts can handle these

         4       cases by imposing the kind of admonition to the

         5       inmate that Senator Leichter was talking about

         6       earlier, where the inmate now would have to go

         7       through court before even getting the permission

         8       to sue.

         9                      There have been some obvious

        10       cases and there are always a few cases, where

        11       the charge that is being made or the contention

        12       that is being offered is so ridiculous that it

        13       really is an offense to all of us that the

        14       individual would bring such a case; but even in

        15       the rather spirited case of the melted ice

        16       cream, there were some other issues that were

        17       raised in that case that the court felt had some

        18       merit.

        19                      The stronger issue is the one in

        20       which we want to preserve our constitutionality

        21       and we want to give individuals, even when they

        22       are incarcerated in our state institutions, some

        23       redress if they think that they are being











                                                             
7811

         1       treated in some dehumanizing way.  We do not

         2       want to encourage the filing of false cases.  We

         3       don't want to, in any way, facilitate it, but we

         4       do want to maintain that precious value that we

         5       have in this country where our court system is

         6       open and our court system is free.

         7                      We're not going to give special

         8       privileges to individuals who have violated the

         9       laws of society and rightly deserve to be where

        10       they are, but in situations where they have run

        11       out of administrative relief from the Department

        12       of Corrections, unless we can demonstrate that

        13       there is a true flooding of the system, I would

        14       recommend that we do not have the level of cases

        15       being filed that seems to be represented in the

        16       Attorney General's report.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Secretary will read the last section.

        19                      THE SECRETARY:  Section 5.  This

        20       act shall take effect on the 120th day.

        21                      ACTING PRESIDENT HOBLOCK:  Call

        22       the roll.

        23                      (The Secretary called the roll.)











                                                             
7812

         1                      SENATOR LEICHTER:  May I have my

         2       name called, please?

         3                      ACTING PRESIDENT HOBLOCK:  Sorry,

         4       Senator Leichter?

         5                      SENATOR LEICHTER:  May I have my

         6       name called, please?

         7                      ACTING PRESIDENT HOBLOCK:

         8       Senator Leichter, do you want to explain your

         9       vote?

        10                      SENATOR LEICHTER:  Yes, please.

        11                      ACTING PRESIDENT HOBLOCK:

        12       Please.

        13                      SENATOR LEICHTER:  Mr. President,

        14       my colleagues, one of the really proudest

        15       moments, the most wondrous moments in the

        16       constitutional history of the United States was

        17       when an inmate by the name of Gideon scribbled

        18       on a note to the U.S. Supreme Court a claim that

        19       he had been falsely convicted because he was not

        20       represented by a lawyer, and the Supreme Court

        21       clerk -- with all of the momentous cases that

        22       came before the Supreme Court, the clerk passed

        23       that note on to the justices of the Supreme











                                                             
7813

         1       Court and the justices of the Supreme Court felt

         2       that this was a case worthy for them to

         3       consider, and out of that note came the

         4       significant decision that everyone is entitled

         5       to be represented by attorneys in cases where

         6       they can end up in jail.

         7                      Now, if you pass bills of this

         8       sort, you are limiting that very basic right.

         9       Senator Nozzolio is correct, there's going to be

        10       inmates that take advantage of this, but again

        11       we've got to think of the overall framework for

        12       maintaining basic liberties, and one of the

        13       greatest liberties that exists in this country

        14       that even inmates have is access to the court.

        15       It's a wonderful, wonderful tradition that this

        16       country has; and unless a clear showing has been

        17       made, which I don't think it has been in this

        18       case, we should not abridge it.

        19                      Mr. President, I vote in the

        20       negative.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Senator Nozzolio to explain his vote.

        23                      SENATOR NOZZOLIO:  Thank you, Mr.











                                                             
7814

         1       President.

         2                      Mr. President, my colleagues, by

         3       making prisoners exhaust their administrative

         4       remedies, pay a partial filing fee from their

         5       commissary account and be liable for sanctions,

         6       this bill places inmates on a more level playing

         7       field for those private actions taken in the

         8       courts of our state.  Private parties are

         9       subjected to these requirements.  We're simply

        10       on a broader scale asking the inmates of this

        11       state to pay, as well.

        12                      Thank you very much, Mr.

        13       President and my colleagues, for the debate on

        14       this issue, and I move its passage.

        15                      ACTING PRESIDENT HOBLOCK:

        16       Secretary will announced the results.

        17                      THE SECRETARY:  Those recorded in

        18       the negative on Calendar 1101 are Senators

        19       Abate, Connor, Espada, Gold, Leichter,

        20       Montgomery, Paterson, Smith, Solomon and

        21       Waldon.  Ayes 48, nays 10.

        22                      ACTING PRESIDENT HOBLOCK:  The

        23       bill is passed.











                                                             
7815

         1                      ACTING PRESIDENT HOBLOCK:

         2       Senator DiCarlo.

         3                      SENATOR DiCARLO:  Mr. President.

         4       On behalf of the sponsor, can we lay aside for

         5       the day Calendars 1097 and 1107?

         6                      ACTING PRESIDENT HOBLOCK:  1097

         7       and 1107 are laid aside for the day.

         8                      Senator DiCarlo.

         9                      SENATOR DiCARLO:  May we also now

        10       take up Calendar 494?

        11                      ACTING PRESIDENT HOBLOCK:

        12       Senator Stavisky.

        13                      SENATOR STAVISKY:  Mr.

        14       President.  I believe that 1114 was previously

        15       considered and, if so, I should like to be

        16       recorded, without objection, in the negative.

        17                      ACTING PRESIDENT HOBLOCK:

        18       Without objection, Senator Stavisky recorded in

        19       the negative.

        20                      Secretary will read.

        21                      THE SECRETARY:  Calendar Number

        22       494, by Senator Cook, Senate Print 3155A, an act

        23       to amend the General City Law, the Town Law and











                                                             
7816

         1       the Village Law, in relation to cluster

         2       development.

         3                      ACTING PRESIDENT HOBLOCK:

         4       Secretary will read the last section.

         5                      THE SECRETARY:  Section 4.  This

         6       act shall take effect immediately.

         7                      ACTING PRESIDENT HOBLOCK:  Call

         8       the roll.

         9                      (The Secretary called the roll.)

        10                      THE SECRETARY:  Ayes 58.

        11                      ACTING PRESIDENT HOBLOCK:  The

        12       bill is passed.

        13                      Senator DiCarlo.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Senator DiCarlo.

        16                      SENATOR DiCARLO:  Mr. President.

        17       Is there any housekeeping at the desk?

        18                      ACTING PRESIDENT HOBLOCK:  Yes.

        19                      Senator Sears.

        20                      SENATOR SEARS:  Yes, Mr.

        21       President.  On page 43, Calendar Number 471,

        22       Senate Print Number 3545, would you remove the

        23       star?











                                                             
7817

         1                      ACTING PRESIDENT HOBLOCK:  The

         2       star is removed.

         3                      Senator Marcellino.

         4                      SENATOR MARCELLINO:  Yes, Mr.

         5       President.  On behalf of Senator Marchi, on page

         6       number 19, I offer the following amendments to

         7       Calendar Number 675, Senate Print Number 593.

         8                      ACTING PRESIDENT HOBLOCK:

         9       Amendments are received.

        10                      SENATOR MARCELLINO:  Ask that

        11       this bill retain its place on the Third Reading

        12       Calendar.

        13                      ACTING PRESIDENT HOBLOCK:

        14       Senator Marcellino.

        15                      SENATOR MARCELLINO:  Mr.

        16       President, on page number 29, I offer the

        17       following amendments, on behalf of Senator Levy,

        18       to Calendar Number 875, Senate Print Number

        19       4985, and ask that the bill retain its place on

        20       the Third Reading Calendar.

        21                      ACTING PRESIDENT HOBLOCK:

        22       Amendments are accepted.

        23                      SENATOR MARCELLINO:  Mr.











                                                             
7818

         1       President, on behalf of Senator Saland, on page

         2       number 46, I offer the following amendments to

         3       Calendar Number 945, Senate Number 2599, and ask

         4       that said bill retain its place on the Third

         5       Reading Calendar.

         6                      ACTING PRESIDENT HOBLOCK:

         7       Amendments are accepted.

         8                      SENATOR MARCELLINO:  And, Mr.

         9       President, on behalf of Senator Larkin, on page

        10       number 41, I offer the following amendments to

        11       Calendar Number 215, Senate Print 2090A, and ask

        12       that said bill retain its third reading order on

        13       the calendar.

        14                      ACTING PRESIDENT HOBLOCK:

        15       Amendments are received.

        16                      Senator DiCarlo.

        17                      SENATOR DiCARLO:  Mr. President,

        18       there will be a meeting of the Rules Committee

        19       tomorrow morning at 9:30 in Room 332.

        20                      There being no further business,

        21       I move we adjourn until tomorrow, Tuesday, at

        22       10:00 a.m.

        23                      ACTING PRESIDENT HOBLOCK:  There











                                                             
7819

         1       will be a meeting of the Rules Committee

         2       tomorrow, Tuesday, at 9:30 a.m.  Session at

         3       10:00 a.m. sharp.

         4                      Stand adjourned.

         5                      (Whereupon, at 5:38 p.m., the

         6       Senate adjourned.)

         7

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        10

        11

        12

        13

        14