Regular Session - June 13, 1995
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9 ALBANY, NEW YORK
10 June 13, 1995
11 10:01 a.m.
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14 REGULAR SESSION
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18 SENATOR JOHN R. KUHL, JR., Acting President
19 STEPHEN F. SLOAN, Secretary
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1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order, members please find
4 their places, staff their places. Ask everybody
5 in the chamber to rise and join me in saying the
6 Pledge of Allegiance.
7 (The assemblage repeated the
8 Pledge of Allegiance to the Flag. )
9 In the absence of clergy, may we
10 bow our heads in a moment of silence.
11 (A moment of silence was
12 observed. )
13 Reading of the Journal.
14 THE SECRETARY: In Senate,
15 Monday, June 12th. The Senate met pursuant to
16 adjournment, Senator Kuhl in the Chair upon
17 designation of the Temporary President. The
18 Journal of Sunday, June 11th, was read and
19 approved. On motion, Senate adjourned.
20 ACTING PRESIDENT KUHL: Hearing
21 no objection, the Journal stands approved as
22 read.
23 Presentation of petitions.
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1 Messages from the Assembly.
2 Messages from the Governor.
3 Reports of standing committees.
4 Reports of select committees.
5 Communications and reports from
6 state officers.
7 Motions and resolutions. Senator
8 Libous.
9 SENATOR LIBOUS: Thank you, Mr.
10 President.
11 On behalf of Senator Spano, I
12 wish to call up his bill, Print Number 1701,
13 recalled from the Assembly which is now at the
14 desk.
15 ACTING PRESIDENT KUHL: Secretary
16 will read the title.
17 THE SECRETARY: Calendar Number
18 1151, by Senator Spano, Senate Print 1701, an
19 act to amend Chapter 78 of the Laws of 1989.
20 ACTING PRESIDENT KUHL: Senator
21 Libous.
22 SENATOR LIBOUS: Thank you, Mr.
23 President.
9145
1 I now move to reconsider the vote
2 by which this bill was passed.
3 ACTING PRESIDENT KUHL: The
4 motion is to reconsider the vote by which the
5 bill passed the house. Secretary will call the
6 roll on reconsideration.
7 (The Secretary called the roll on
8 reconsideration. )
9 THE SECRETARY: Ayes 32.
10 ACTING PRESIDENT KUHL: Senator
11 Libous.
12 SENATOR LIBOUS: Mr. President, I
13 now offer up the following amendments.
14 ACTING PRESIDENT KUHL:
15 Amendments are received and adopted.
16 Senator Libous.
17 SENATOR LIBOUS: Thank you, Mr.
18 President.
19 On behalf of Senator Sears, on
20 page 49, I offer the following amendments to
21 Calendar Number 1238, Senate Print Number 4903A,
22 and ask that said bill retain its place on the
23 Third Reading Calendar.
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1 ACTING PRESIDENT KUHL:
2 Amendments to Calendar Number 1238 are received
3 and adopted; the bill will retain its place on
4 the Third Reading Calendar.
5 Senator Libous.
6 SENATOR LIBOUS: On behalf of
7 Senator Cook, on page 40, I offer the following
8 amendments to Calendar Number 1283, Senate Print
9 4864, and ask that said bill retain its place on
10 the Third Reading Calendar.
11 ACTING PRESIDENT KUHL: The
12 amendments to Calendar Number 1283 are received
13 and adopted. Bill will retain its place on the
14 Third Reading Calendar.
15 Senator Libous.
16 SENATOR LIBOUS: And, Mr.
17 President, on behalf of myself, on page 35, I
18 offer the following amendments to Calendar
19 Number 1233, Senate Print Number 3856, and ask
20 that said bill retain its place on the Third
21 Reading Calendar.
22 ACTING PRESIDENT KUHL:
23 Amendments are received and adopted, bill will
9147
1 retain its place on the Third Reading Calendar.
2 Senator Dollinger, why do you
3 rise?
4 SENATOR DOLLINGER: Mr.
5 President, there's a motion to alter the rules
6 which I gave notice to the Journal Clerk
7 yesterday that I believe is appropriate at this
8 time. I'd like to -
9 ACTING PRESIDENT KUHL: Senator
10 Dollinger, you're incorrect. The motions to
11 discharge are held after the calendar in the
12 normal process of business, so after we're
13 through with the process of the day we will then
14 be ready for motions to discharge.
15 SENATOR DOLLINGER: Mr.
16 President, with all due respect, this is a
17 motion filed pursuant to Rule XI which deals
18 with altering the rules. It is not a motion to
19 discharge. It is a motion to alter the rules
20 because the rules currently prohibit a motion to
21 discharge at this time in the Senate.
22 ACTING PRESIDENT KUHL: Senator
23 Dollinger.
9148
1 SENATOR DOLLINGER: Therefore -
2 ACTING PRESIDENT KUHL: Senator
3 Dollinger, you are out of order at this point.
4 You have not raised any issue at this point.
5 You asked a moment -- just a sense of inquiry. I
6 gave you my interpretation of the rules at that
7 point. There has been no ruling, official
8 ruling, so you are out of order.
9 SENATOR DOLLINGER: Mr.
10 President.
11 ACTING PRESIDENT KUHL: We do
12 have some other -- we're doing motions and
13 resolutions. We do have some other things at
14 the desk to do. Now, if you want to raise a
15 point of order, you want to issue the point of
16 order, I'll make a ruling on the point of order,
17 and then you can challenge that if you'd like to
18 do that, but essentially you are out of order at
19 this moment.
20 SENATOR DOLLINGER: I -- I
21 appreciate that, Mr. President.
22 SENATOR PATERSON: Mr. President.
23 SENATOR DOLLINGER: I raise a
9149
1 point of order.
2 ACTING PRESIDENT KUHL: Senator
3 Paterson, why do you rise?
4 SENATOR PATERSON: Mr. President,
5 I'm rising on a point of order to ask for a
6 ruling of the Chair so that we can have
7 clarification on this particular issue.
8 What I first would like is an
9 explanation from you. The motion that Senator
10 Dollinger is making, as I would understand it,
11 is not a motion to discharge.
12 ACTING PRESIDENT KUHL: Senator
13 Paterson, can I interrupt you for just a
14 moment?
15 SENATOR PATERSON: Sure.
16 ACTING PRESIDENT KUHL: I think I
17 can shortcut this whole process by a long period
18 of time. If we can take up the substitutions
19 and complete the housekeeping and then, if you
20 would like to take up Senator Dollinger's
21 motion, we'll do it that way. Is that
22 acceptable to you?
23 SENATOR DOLLINGER: That's fine.
9150
1 SENATOR PATERSON: That's fine.
2 ACTING PRESIDENT KUHL: O.K.,
3 fine. There are some substitutions at the desk,
4 Senator Bruno. I'll ask the Secretary to read
5 if that's O.K. with you.
6 SENATOR BRUNO: Fine.
7 ACTING PRESIDENT KUHL: Secretary
8 will read.
9 THE SECRETARY: On page 5,
10 Senator Rath moves to discharge from the
11 Committee on Rules Assembly Bill Number 7755 and
12 substitute it for the identical Calendar Number
13 160.
14 On page 39, Senator Libous moves
15 to discharge from the Committee on Mental Health
16 and Developmental Disabilities Assembly Bill
17 Number 2788 and substitute it for the identical
18 Calendar Number 1282.
19 On page 40, Senator Levy moves to
20 discharge from the Committee on Investigations
21 Assembly Bill Number 5975 and substitute it for
22 the identical Calendar Number 1284.
23 On page 41, Senator Gonzalez
9151
1 moves to discharge from the Committee on Rules
2 Assembly Bill Number 3411 and substitute it for
3 the identical Calendar Number 1291.
4 ACTING PRESIDENT KUHL:
5 Substitutions are ordered.
6 The Chair would recognize Senator
7 Dollinger for presentation of his motion to
8 discharge -- excuse me, motion to alter the
9 rules.
10 SENATOR DOLLINGER: That's
11 correct, Mr. President.
12 ACTING PRESIDENT KUHL: Relating
13 to the date of discharge.
14 SENATOR DOLLINGER: That's
15 correct, Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Dollinger.
18 SENATOR DOLLINGER: This is a
19 motion to alter the rules to allow a motion to
20 discharge the ban on assault weapons which
21 passed the state Assembly.
22 Mr. President, I think that the
23 rationale for this motion ought to be obvious to
9152
1 most of the members of this chamber. This is an
2 opportunity for this body, the state Senate, to
3 be heard on an issue that is of vital importance
4 to the people of our state. It's simply to be
5 heard on the issue of assault -- banning assault
6 weapons, restricting access to high numbers -
7 SENATOR VELELLA: Mr. President,
8 a point of order.
9 ACTING PRESIDENT KUHL: Senator
10 Velella, why do you rise?
11 SENATOR VELELLA: A point of
12 order. Are we on a procedural motion, or are we
13 discussing a substantive issue? If the Senator
14 is raising a procedural issue, I think we ought
15 to stick to discussing the procedures that the
16 members will have to vote upon and not getting
17 to a substantive discussion of a particular
18 issue.
19 I'd like a ruling from the Chair
20 as to whether or not discussing particular
21 issues is in order or whether or not the Senator
22 should keep his remarked confined to the
23 procedural motion that he's making.
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1 ACTING PRESIDENT KUHL: Senator
2 Velella, you are correct in that the motion
3 before the house being made by Senator Dollinger
4 is a motion to amend the rules. It's being done
5 for a specific purpose, and debate should
6 contain itself around that motion. You are
7 correct, and I hope that the other members of
8 the chamber, Majority and Minority, will keep
9 that in mind as we discuss the bill. Senator
10 Dollinger, the floor is yours.
11 SENATOR DOLLINGER: Mr. President,
12 I -
13 ACTING PRESIDENT KUHL: The floor
14 is yours.
15 SENATOR DOLLINGER: Right. I
16 appreciate that direction. I think that's
17 appropriate.
18 In order to convince my
19 colleagues that we ought to alter the rules, we
20 have to at least a take peek at what altering
21 the rules would get this chamber and get the
22 people of the state of New York; so in order to
23 be able to make an argument that we ought to
9154
1 change our procedures, I believe that we have to
2 provide a justification for changing those, and
3 we can't do that unless we look around the
4 corner to see what the ban on assault weapons
5 would do.
6 It's already passed the
7 Assembly. It can become law within the next
8 five or six days if it passes this chamber today
9 because the Governor of this state has indicated
10 he supports a ban on assault weapons. He's also
11 indicated that the state Assembly supports it;
12 the Attorney General supports it. There's
13 almost unanimous support for it in this state.
14 What does this ban do? What would
15 this ban do? This ban would restrict access to
16 clips on weapons that could rapid fire weapons.
17 SENATOR BRUNO: Mr. President.
18 ACTING PRESIDENT KUHL: Senator
19 Bruno, why do you rise?
20 SENATOR BRUNO: Forgive the
21 interruption, but are we on a procedural motion?
22 Is that what is before us?
23 ACTING PRESIDENT KUHL: Yes.
9155
1 SENATOR BRUNO: And are we now
2 discussing the merits of some specific piece of
3 legislation and, if so, isn't that out of order?
4 SENATOR DOLLINGER: Mr.
5 President.
6 SENATOR BRUNO: If the discussion
7 centers around changing the procedures let's
8 talk about the justification of changing the
9 procedures, and, if that holds, then we will
10 discuss the specific issue.
11 SENATOR DOLLINGER: Mr.
12 President, with all due respect to the Majority
13 Leader, it seems to me the issue is what is the
14 argument in favor of altering the rules under
15 Rule XI. Why should we do this? Why should we
16 change our procedures, The rules of this
17 Senate, why should we alter them under Rule XI?
18 I believe, Mr. President, I'm
19 entitled to argue that there's a substantive
20 basis for doing that and that there's an
21 imperative for doing that and that is the
22 opportunity before the end of this session to
23 accomplish something we have never accomplished
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1 before in this state, and that's restricting
2 access to violent weapons, Mr. President.
3 I believe that there is a nexus
4 between arguing for a ban on assault weapons and
5 at least these style clips that are banned under
6 this bill -
7 SENATOR SKELOS: Mr. President.
8 SENATOR DOLLINGER: -- and
9 convincing my colleagues that we ought to alter
10 our rules in order to be able to discuss this.
11 ACTING PRESIDENT KUHL: Senator
12 Dollinger, excuse me just a moment. Senator
13 Skelos, why do you rise?
14 SENATOR SKELOS: Mr. President, I
15 think a point of order has been raised as to
16 whether this is a procedural motion or a
17 discussion on the merits of a bill that is not
18 before the house, and that Senator Dollinger
19 neglected to make the motion in a timely fashion
20 and now he's looking to disrupt and change all
21 the rules of the Senate which have been adopted
22 by this body just to suit his political needs at
23 this time.
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1 Now, we are trying to run an
2 orderly house. We are trying to close session
3 this Thursday. If Senator Dollinger had been
4 diligent and made his motion in a timely fashion
5 rather than trying to grandstand politically at
6 the close of session, the motion would have been
7 heard in a timely fashion and decided.
8 So at this time, I would ask that
9 he be ruled out of order if he continues to talk
10 on the merits of a bill that he neglected to
11 make a motion on or just continue to speak on
12 the procedural motion of whether the rules
13 should be amended.
14 ACTING PRESIDENT KUHL: Senator
15 Paterson, I assume you'd like to be heard on the
16 point of order?
17 SENATOR PATERSON: Me, yeah. Mr.
18 President -- Mr. President, a point of order.
19 It's my understanding that Senator Dollinger
20 filed his motion last Friday and gave the
21 requisite one-day notice that the Senate rules
22 provide for the -- to move to change the Senate
23 rules. Is that not correct?
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1 SENATOR BRUNO: Not the
2 information we have. That is not the
3 information that we have, Mr. President. The
4 information that I have is that this request was
5 filed after the closure date, and you had all
6 session to file, and why would we be waiting
7 until this moment as we are trying to close
8 down?
9 My counsels tell me that this is
10 on the floor after the date that we had
11 established and everyone else here knew the
12 dated, related to the date and has abided by the
13 date.
14 SENATOR PATERSON: Mr. President.
15 ACTING PRESIDENT KUHL: Senator
16 Paterson, would you like to be heard on Senator
17 Skelos' -
18 SENATOR PATERSON: Mr. President,
19 I would like -- I -- what we're doing is that
20 we're looking at this whole issue with a sort of
21 anachronism guiding the whole principle. This
22 is the way we agreed upon the process earlier in
23 the session. The budget process would end on
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1 April 1st. Then on April 11th, the second
2 Tuesday in April, that was the deadline for the
3 file of motions; but what happened, and I think
4 that this body has to be sensitive to what
5 actually occurred, is that the second Tuesday in
6 April passed while we were still in budget
7 negotiations. So here we passed the budget on
8 June the 8th, and once the budget was passed,
9 Senator Dollinger immediately puts in his motion
10 on June the 9th, which is one day, far short of
11 what would normally be 11 days, and what I'm
12 saying is, he filed it Friday. He gave notice
13 on the floor. I was here. I heard him. It's
14 in the Senate record. He gave notice on
15 yesterday, and so even with our desire to close
16 on Thursday -- and this is in no way attempting
17 to thwart the effort of the Majority Leader, who
18 has made it very plain -- and we hear him -
19 that he wants to close business on Thursday, but
20 the fact remains that this session has in many
21 ways been altered by the late budget and, though
22 we may have had a late budget, I know, Mr.
23 President, that we would not want the residents
9160
1 of the state of New York to feel that we did not
2 conduct business in a proper way and that we did
3 not address issues that some members might feel
4 are critical; and so, without any discussion on
5 what the issue is, here's an attempt by a member
6 who feels that an issue has raised itself to a
7 threshold that it needs immediate government
8 action, who wants to change the rules under Rule
9 XI such that we might now take up his motion to
10 discharge this bill from committee. I don't
11 know whether or not you would agree with that,
12 but I don't think it is right to say that that
13 kind of a motion is out of order.
14 SENATOR GOLD: Mr. President.
15 ACTING PRESIDENT KUHL: Senator
16 Gold, do you want to be heard on the motion to
17 discharge, the point of order?
18 SENATOR GOLD: Yes, I do.
19 I won't repeat what's been said
20 by Senator Paterson, because I think he's
21 accurate, but I want to make a point.
22 We understand what's happening
23 here, and the Majority will leave today saying
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1 that we had a procedural motion, and people who
2 are thinking people will understand that, if you
3 really want gun control in this state, you have
4 to support this.
5 But Senator Skelos, I'm upset for
6 two reasons: Number one, I can understand that
7 you've got political baggage to carry and that I
8 respect. I don't respect the fact that there's
9 a game that goes on here and, if Senator
10 Dollinger has the guts to bring to the fore
11 certain issues, that's no excuse for freshness
12 and some of the remarks that are made on this
13 floor to Senator Dollinger, nobody would have
14 the nerve to say to anybody else, and I think we
15 ought to cut it out.
16 Senator Dollinger doesn't need
17 political games. He is very well respected in
18 his district, and he earned that, so the snide
19 remarks that are made are, in my opinion, very
20 much out of order.
21 Now, as far as the orderly issue,
22 Senator Bruno, I am thrilled that we start on
23 time, and you know that. You and I have
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1 discussed that for years, and it's very
2 important.
3 SENATOR DeFRANCISCO: Mr.
4 President.
5 ACTING PRESIDENT KUHL: Senator
6 DeFrancisco, why -
7 SENATOR GOLD: I won't yield
8 right now, sir.
9 ACTING PRESIDENT KUHL: Well, are
10 you -
11 SENATOR GOLD: Now, there are
12 certain things -
13 ACTING PRESIDENT KUHL: Senator
14 Gold, excuse me just a minute. Are you asking
15 Senator Gold to yield, Senator?
16 SENATOR DeFRANCISCO: Yes, I am;
17 I requested Senator Gold to yield.
18 SENATOR GOLD: And I said I would
19 yield in a minute.
20 ACTING PRESIDENT KUHL: And
21 Senator refuses. O.K. Senator Gold.
22 SENATOR GOLD: What's more
23 important here is that we do have rules, Senator
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1 Bruno, and we do have order, and I'm all for
2 that but when you, Senator Bruno, take it upon
3 yourself to have the Rules Committee take over
4 this place and knock out the committees, because
5 we have to end, well, you do it, people don't
6 scream. You look at the rules and theoretically
7 we have committees and they can work all year
8 long, and the Constitution, Senator Bruno, says
9 that every member on your side and on my side
10 are entitled to three days to consider bills.
11 They're got to be here printed and on our desks
12 for three days, but emergencies come up and
13 things happen. Things happen, and so the
14 Constitution says we can change those three
15 days.
16 Well, as Senator Paterson very,
17 very well pointed out, things happen. The
18 budget was late this year. Maybe, if we had
19 elected a Republican governor, it would have
20 come in on time, that's what they promised us,
21 but the budget was late, and so we're now trying
22 to bring it down; but there are things that we
23 must deal with, and I -- and I don't understand
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1 your side of the aisle, Senator Bruno.
2 If you do not believe in this
3 bill that we are trying to waive the rules to
4 consider, I would imagine you're proud of that,
5 that you believe the NRA, and you believe all
6 the people who think that you can not go hunting
7 without major assault weapons, and you can't
8 bring up a child in a healthy atmosphere unless
9 the kid learns how to use an AK-47. Be proud of
10 it and say, My gosh, they called it a procedural
11 motion, but I would have voted against it any
12 way. Don't hide behind it.
13 I mean, Senator Dollinger has my
14 respect. Why? Because he looks you in the eye
15 and tells you what he believes. He's not
16 ashamed to look at the NRA or anybody else and
17 say, We need this bill in New York and that's
18 why I'm going to make the motion, and I think,
19 Senator Bruno, in closing, there's an issue
20 here.
21 Is an orderly house worth people
22 dying for? You know, I think it's amazing all
23 the time. We have put in money and programs and
9165
1 I saw the New York Times, read about one program
2 I put in, 15,000 to help kids to wear helmets
3 and not hurt themselves on bicycles and the
4 program has -- has worked three-fold, and they
5 -- they may question it. Of course, if you had
6 a kid that was in a well and the television was
7 there, we can spend millions to get 'em out
8 because we got a media event.
9 Well, we better get our
10 priorities in order, all right? I understand the
11 rules, Senator Bruno, and I respect your respect
12 for the rules, but if passing this bill saves
13 lives, to heck with the rules. We can change
14 them for one event and, if we're going to change
15 them for any one event, Senator Dollinger has
16 picked the right one.
17 And in closing, Mr. President, I
18 would remind you of something you know very,
19 very well and have respected. Speech in this
20 house has never been an issue of relevance. If
21 I'm speaking on a motion or if I'm speaking on a
22 bill and I can convince somebody to go with me
23 by using an analogy, by reading a fairy tale, by
9166
1 referring to the minutes or referring to the
2 bill or a different bill, I'm allowed to do
3 that. That's my method of argumentation and if
4 you were to rule that Senator Dollinger is out
5 of order because of his speech -- remember,
6 that's what we're talking about here -- you keep
7 saying, Well, is this your motion; is your
8 motion this, or is your motion that.
9 It is clear that his motion is to
10 suspend the rules or change the rules but, if
11 you rule against his speech, Senator Kuhl, which
12 I know you won't do, it will be the first time
13 in the history of this chamber, the
14 distinguished history of this chamber, that any
15 presiding officer has tried to limit the right
16 of speech of a member.
17 ACTING PRESIDENT KUHL: Senator
18 DeFrancisco, you want to rise on the -
19 SENATOR DeFRANCISCO: Will
20 Senator yield now?
21 SENATOR GOLD: Yes.
22 SENATOR DeFRANCISCO: Senator,
23 this is a little out of context because I rose
9167
1 at the time the statement was made, but since
2 you were so offended by the comment by Senator
3 Skelos that characterized it as being snide, to
4 the effect that Senator Skelos called Senator
5 Dollinger's actions today political grandstand
6 ing, I wonder, could you tell me how you'd
7 distinguish that snide remark, as characterized
8 by you, by the remark you made to Senator Skelos
9 of the political baggage that you know he has to
10 carry on this issue? Is there some distinction
11 that I'm missing?
12 SENATOR GOLD: Yes. I -- my -
13 my children, Senator, refer to it as AAOTP,
14 alive and on the planet. If you're alive and on
15 the planet, you know when somebody is being
16 snide. You know when somebody is being crass to
17 somebody else. You know when somebody has a job
18 to do.
19 I respect very much the fact that
20 Senator Skelos has risen to the position he's
21 risen in, and he does a very good job, but there
22 are lines to cross and we know when somebody
23 crosses it and when they don't and, Senator,
9168
1 you're smart enough from Syracuse to know where
2 that line should be drawn also.
3 SENATOR DeFRANCISCO: You're
4 smart enough from wherever you're from to
5 recognize that calling -
6 SENATOR GOLD: Not as smart as
7 you.
8 SENATOR DeFRANCISCO: -- calling
9 Senator -- saying that Senator Skelos' political
10 baggage and that's the reason for his remark,
11 and you don't see the distinction -- you don't
12 say there's a distinction between those two
13 comments.
14 SENATOR GOLD: Yes, because when
15 I look at Senator Skelos in the eye, sir, and I
16 make that comment, I say it with respect and not
17 to degrade him. The comments he made to Senator
18 Dollinger -- (Laughter) (Oooooh!)
19 SENATOR GOLD: Well, I guess the
20 agreement of that side proves my point.
21 ACTING PRESIDENT KUHL: Senator
22 Dollinger, why do you rise?
23 SENATOR DOLLINGER: Procedurally,
9169
1 are we still on the point of order? Do I have
2 the floor, Mr. President?
3 ACTING PRESIDENT KUHL: No,
4 there's a slight issue to be resolved prior to
5 your re-taking the floor. There was a point of
6 order made by Senator Skelos relative to whether
7 this was procedural or whether or not -- I'm
8 attempting in a discussion with counsel to
9 resolve that, at the same time listening to
10 debate, so if you want to talk on the point of
11 order, you're free to talk on the point of order
12 as to why I should not uphold Senator Skelos'
13 point of order.
14 SENATOR DOLLINGER: What I need
15 to know is a clarification of Senator Skelos'
16 point of order. As I understood it, the only
17 issue raised by the point of order was whether
18 or not the discussion should be limited to the
19 imperative of altering the rules or whether it
20 could be related to the substance of the bill.
21 My understanding, Mr. President,
22 is that, because of the linkage, because of
23 trying to convince my colleagues of the need to
9170
1 alter the rules, the imperative to alter the
2 rules lies in putting this issue forward on the
3 floor, having it voted on and hopefully having
4 it passed.
5 And so, Mr. President, I'm
6 willing to refrain until there's a decision from
7 the Chair, but I -- I look at these things as
8 linked. I don't know how I could convince you
9 to alter the rules if I couldn't talk about why
10 we should alter them.
11 Why should we alter them? The
12 answer is to pass this bill because of what it
13 does, not what's behind it.
14 ACTING PRESIDENT KUHL: Senator
15 Dollinger, if I might, O.K.?
16 A point of issue or point of
17 order was raised by Senator Skelos as to what
18 type of a motion this was, and it's clearly in
19 your notice of motion, a motion to amend, as you
20 have it -- a motion to alter the rules.
21 Now, the Majority Leader has
22 consented in taking this out of order. I hope
23 you keep that in mind, that normally this type
9171
1 of a motion would be taken up, under our rules
2 of our house, at the end of the day as Item
3 Number 10 in the listing in the rules, and so
4 we're taking it out of order.
5 I would agree that, in fact, this
6 is a procedural motion, but I find nothing in
7 the rules that is limiting, as Senator Gold has
8 indicated, any debate. So while the issue is
9 raised by Senator Skelos that this is a proced
10 ural motion, truly is a procedural motion, and
11 while there has been some question as to whether
12 or not technically the motion is before the desk
13 properly today because you never filed the
14 resolution amending the rules which is part of
15 what our process is, again the Majority Leader
16 is saying he's willing to let you voice your -
17 your motion.
18 So you now have the floor to
19 essentially debate the question as to whether or
20 not the rules of this house should be altered,
21 in your words, or amended in the rules -- in the
22 words of the rules of the house.
23 SENATOR DOLLINGER: Thank you,
9172
1 Mr. President. Thank the Majority Leader for
2 your courtesy.
3 ACTING PRESIDENT KUHL: Senator
4 Dollinger, on the motion.
5 SENATOR DOLLINGER: This bill
6 which I seek to bring before the house through
7 the alteration of our rules, will allow this
8 state to step forward on the issue of assault
9 weapons.
10 I'd simply read a short letter
11 from another man that perhaps some people know
12 as to why we ought to alter the rules today. It
13 says: "Senator Dollinger, I'm sorry I could not
14 be in Albany today as you attempt to move the
15 assault weapons ban to the floor of the Senate.
16 I sincerely hope that your colleagues will allow
17 this important legislation to be heard.
18 "Sensible gun laws work. After
19 President Bush banned the importation of assault
20 rifles in 1989, their use in crime dropped 45
21 percent. In just a few short months since
22 passage of the domestic assault weapon ban we
23 have already seen dramatic increases in the
9173
1 price of assault weapons and large capacity
2 clips. The supply is dwindling, and we are
3 getting these weapons of war off our streets.
4 "But make no mistake, the
5 federal assault weapons ban is on the table in
6 Congress. Poll after poll shows that 80 percent
7 of the American public supports this ban. The
8 same is true in New York. The NRA and
9 increasingly radical special interest groups
10 want to kill the ban, and the leadership in
11 Congress says they're going to accommodate
12 them. Every major national law enforcement
13 organization in the country supported the
14 federal ban on these 'cop killer' weapons.
15 Remember, it is your police officers, not the
16 NRA who face the daily risk of looking down the
17 barrel of an Uzi or an AK-47. I can't
18 understand any elected official who would rather
19 stand with the militant gun lobby than our men
20 and women in blue.
21 "I hope that the New York State
22 Senate will stand up for the extremists in the
23 gun lobby and support a state assault weapons
9174
1 ban. The people and police officers in your
2 state will be better off." Signed: James S.
3 Brady, a man who gave this country a law called
4 the Brady Law that restricts access to weapons.
5 This bill and consideration by
6 this floor is long overdue. 80 percent of the
7 people in this state, every poll knows that
8 that's what it shows about assault weapons. I'd
9 point out that the Republican Party in this
10 state has taken a position in favor of banning
11 assault weapons. The Republican Congressional
12 Delegation in New York State, including the
13 entire Long Island delegation, voted by an 8 to
14 6 margin in favor of the federal ban on assault
15 weapons. The Republican Party and its
16 leadership, its Congressional leadership in this
17 state, has stood behind the concept of banning
18 assault weapons.
19 Keep in mind, none of those
20 Republican Congressional people lost in a
21 primary. There will be no job loss in New
22 York. We don't manufacture these weapons in New
23 York. They're manufactured other places. Our
9175
1 children's lives and the children of people like
2 two constituents of mine at the corner of
3 Ferndale, Crescent and Goodman Street in
4 Rochester gave their lives in an assault weapon
5 blitz.
6 SENATOR VELELLA: Mr. President,
7 a point of order. I believe the Chair -
8 ACTING PRESIDENT KUHL: Senator
9 Velella, why do you rise?
10 SENATOR VELELLA: I believe the
11 Chair has been very liberal and very considerate
12 of Senator Dollinger's request that, in
13 discussing a procedural motion, he be allowed to
14 allude to, to make reference to, and to briefly
15 discuss the reason behind that. I don't believe
16 that he has political motivations. I think that
17 he and the word "Republican Party", Republican
18 leadership, Republican this, Republican that,
19 certainly he would never do that in a bill -- in
20 a motion that he's discussing before the house.
21 However, I think he's gone beyond
22 the bounds of what the Chair has allowed and I
23 think he's totally out of order now in getting
9176
1 over -- getting into a meritorious discussion of
2 a bill that procedurally is not before the
3 house.
4 I -- I don't think this is the
5 Assembly where we -- where we just disregard
6 motions to discharge as the Speaker had tried to
7 do. This house allows people a procedure. They
8 allow them to have the opportunity to speak.
9 You have very liberally -- I might have ruled
10 differently if I was on the Chair -- very, very
11 liberally allowed him to make allusions to the
12 merits of the bill he wants to speak about, but
13 this is a discussion to be brought before the
14 Senate on whether or not we should change our
15 rules. He's given us the reason. You've given
16 him that opportunity. We know what he wants to
17 do. Now, let's talk about whether or not we
18 should be changing our rules, and I would ask
19 the Chair to please rule Senator Dollinger out
20 of order if he continues to go along and discuss
21 the merits of a bill that is not before the
22 house.
23 The issue is, do we change our
9177
1 rules or not, not the merits of a piece of
2 legislation that he wishes to discuss.
3 ACTING PRESIDENT KUHL: Senator
4 Dollinger, you want to be heard on this point of
5 order?
6 SENATOR DOLLINGER: Yes, I do,
7 Mr. President.
8 There can't be any better reason,
9 as Senator Gold said, to do this bill today, to
10 alter the rules and to allow this motion -
11 SENATOR VELELLA: You can't move
12 the bill today, Senator.
13 SENATOR DOLLINGER: No, I'm
14 arguing that we should.
15 SENATOR VELELLA: There is no way
16 to do it.
17 (Talking over exchange between
18 Senator Dollinger and Senator Velella.)
19 ACTING PRESIDENT KUHL:
20 Gentlemen! Gentlemen! Gentlemen! (Gaveling) I
21 hate to break a historic thing here, but you're
22 out of order. Let's get some order in this
23 chamber. This is not indicative of the New York
9178
1 State Senate, and it's not very complimentary to
2 either one of you two.
3 Now, let's control this. Senator
4 Velella, contain yourself, please. Senator
5 Dollinger, you had the floor.
6 SENATOR DOLLINGER: Thank you,
7 Mr. President.
8 I will apologize to the President
9 for my comments to Senator Velella. I regret
10 them.
11 I, however -- I still believe,
12 Mr. President, that this alteration of the rules
13 is necessary today, now, because that's the only
14 way, as Senator Gold said, we can achieve the
15 goal that this bill will achieve, to alter the
16 rules, allow the motion to discharge to come
17 forward, allow this bill to be put on the floor
18 so that we can stop the killing. It's that
19 simple.
20 That's the point. That's the
21 point of everything I wanted to say. I could
22 talk for 20 minutes on this. I'll avoid that,
23 Senator, but don't forget for a second that what
9179
1 I'm arguing for is that we save people's lives,
2 that this little piece of paper, this little
3 piece of paper, this little piece of paper can
4 be better than any bullet-proof vest we can buy
5 because we can save policemen's lives; we can
6 save the lives of kids, might even save the
7 lives of the two kids that died at the corner of
8 Ferndale, Crescent and Goodman Street. That's
9 why we ought to do it today.
10 ACTING PRESIDENT KUHL: Senator
11 Oppenheimer, on the motion.
12 SENATOR OPPENHEIMER: A point of
13 order.
14 ACTING PRESIDENT KUHL: There's
15 already one point of order on the floor. Would
16 you like to be heard on that?
17 SENATOR OPPENHEIMER: O.K.
18 ACTING PRESIDENT KUHL: Speak
19 quietly. My stick is a little short here.
20 Senator Oppenheimer -
21 SENATOR OPPENHEIMER: This always
22 happens when I step up.
23 ACTING PRESIDENT KUHL: -- on a
9180
1 point of order.
2 SENATOR OPPENHEIMER: I always
3 speak softly. I'm not touching that.
4 Mr. President, my question is,
5 you said that under Point 10 in our agenda, at
6 the end of the day, that that would be the
7 proper time for us to be entertaining this -
8 this motion. Is that indeed the position, Mr.
9 President, that at the end of the day this
10 motion can be handled without altering rules and
11 creating the current situation? Can this be
12 heard at the end of the day?
13 ACTING PRESIDENT KUHL: Normally,
14 Senator, that's when it would be heard, but the
15 Majority Leader consented that this motion to
16 amend the rules of the house be taken out of
17 order, so we are procedurally out of order on
18 this particular motion, and there is an
19 opportunity, obviously, and a willingness to
20 accommodate Senator Dollinger's motion.
21 Anybody else -- Senator Paterson
22 wanting to be heard on the point of order?
23 SENATOR PATERSON: Mr. President,
9181
1 regardless of the -- the issue, it was certainly
2 benevolent of the Majority Leader to take up
3 this issue at this particular time, but just a
4 point of clarification. We were at the point in
5 the calendar where we had passed presentation of
6 petitions, messages from the Governor, messages
7 from the Assembly, reports of standing
8 committees, reports of select committees,
9 reports from state officers, and we were at
10 motions and resolutions.
11 By the way, Mr. President, if
12 your stick is too short, I can take your place
13 if you really want me to. But the point is
14 that, why is this discussion being taken out of
15 order? Motions and resolutions, that's when I
16 think it would be -- when it would occur.
17 ACTING PRESIDENT KUHL: Is that a
18 question of the Chair, Senator Paterson?
19 SENATOR PATERSON: Yes, that's a
20 question.
21 ACTING PRESIDENT KUHL: Well, if
22 you look at the rules, I don't think it's really
23 germane necessarily to this point of order, but
9182
1 if you look at the rules -
2 SENATOR PATERSON: Number 10,
3 that pertains to motions to discharge and
4 amendments to the rules, that's where you -
5 ACTING PRESIDENT KUHL: Senator
6 Paterson, I'm looking at Rule V, page 7, of the
7 rules, subsection (2) under Item 10. It reads
8 specifically: "Motions to discharge and to
9 amend the rules." Now, item 10 comes after
10 motions and resolutions, after the calendar and
11 after special orders. I just simply mentioned
12 that to kind of point out to the chamber that in
13 fact there's being an accommodation here, but it
14 has nothing to do with the point of order.
15 I'm ready to rule on the point of
16 order.
17 SENATOR PATERSON: All right.
18 ACTING PRESIDENT KUHL: I'm ready
19 to rule on the point of order.
20 SENATOR PATERSON: O.K. Point well
21 taken, Mr. President, and it also answers my
22 question.
23 ACTING PRESIDENT KUHL: Thank
9183
1 you, Senator Paterson.
2 The Chair at this time would rule
3 that, in fact, the point of order raised by
4 Senator Velella is certainly well taken in that
5 this is a procedural motion, but there is
6 nothing in the rules of the house that would
7 limit the debate on that particular ruling so,
8 if Senator Dollinger wishes to raise what he
9 perceives to be the reason why there needs to be
10 an alteration of the Senate rules, then, in fact
11 he's entirely within the rules of the Senate.
12 So the Senate would rule that the
13 point of order as raised by Senator Velella is
14 actually out of order and that, Senator
15 Dollinger, you now have the floor.
16 SENATOR DOLLINGER: Thank you,
17 Mr. President.
18 I had intended to talk at some
19 length about this and, frankly, the discussion
20 to this point has suggested to me that I should
21 -- should shorten what I was going to say.
22 The debate about this issue and
23 why we should debate it today, why it's so
9184
1 important, it seems to me, comes down to
2 something elemental, and that is people are
3 dying. These weapons are being used.
4 SENATOR VELELLA: Mr. President.
5 ACTING PRESIDENT KUHL: Excuse
6 me, Senator Dollinger. Senator Velella, why do
7 you rise?
8 SENATOR VELELLA: Mr. President,
9 I appeal the ruling of the Chair.
10 ACTING PRESIDENT KUHL: You're
11 absolutely entitle to do that, Senator Velella.
12 Excuse me, Senator Dollinger, while we deal with
13 an appeal of a ruling of the Chair based upon
14 the point of order that was raised by Senator
15 Velella.
16 Senator Paterson, why do you
17 rise?
18 SENATOR PATERSON: Mr. President,
19 would Senator Velella yield for a question?
20 Would Senator -- Well, I might ask Senator
21 Velella to yield for a question, but I don't
22 understand -- would he explain his appeal of the
23 rules? In other words he just appealed them. I
9185
1 just wanted to know why.
2 ACTING PRESIDENT KUHL: Senator
3 Velella.
4 SENATOR VELELLA: Because the
5 Chair erred in its ruling, Senator, and I'd like
6 the full body to make that decision.
7 SENATOR PATERSON: That's my
8 point, Senator. I would like you to yield for a
9 question and explain to you why you would like
10 the Chair's ruling to be overturned.
11 SENATOR VELELLA: Senator, I
12 believe, when I stated my objection originally
13 and my point of order, I believe that Senator
14 Dollinger was out of order in going into the
15 discussion on the merits of a particular piece
16 of legislation when he was making a procedural
17 motion to change the rules of this house which
18 ultimately would apply to all bills, not to any
19 one particular bill.
20 The Chair ruled at one point that
21 he had the opportunity to make some allusion to
22 the bill that was motivating this, which he did,
23 but I believe he has gone far beyond what was
9186
1 necessary to explain to the house and has
2 violated the rules, and I believe when the Chair
3 upheld him that they were out -- that they were
4 incorrect, and I'd appeal the ruling of the
5 Chair.
6 ACTING PRESIDENT KUHL: The
7 question is on the -
8 SENATOR PATERSON: Mr. President.
9 ACTING PRESIDENT KUHL: Senator
10 Paterson.
11 SENATOR PATERSON: If the Senator
12 would continue to yield for a moment.
13 ACTING PRESIDENT KUHL: Senator
14 Velella, do you continue to yield?
15 SENATOR PATERSON: He has nothing
16 to discuss?
17 SENATOR VELELLA: Call the
18 question.
19 ACTING PRESIDENT KUHL: Senator
20 Bruno, why do you rise?
21 SENATOR BRUNO: Mr. President, can
22 we call the question?
23 ACTING PRESIDENT KUHL: You can,
9187
1 Senator Bruno. The question is called.
2 SENATOR GOLD: Mr. President.
3 SENATOR ABATE: Mr. President.
4 ACTING PRESIDENT KUHL: Let us
5 call the question first, Senator Gold. The
6 question is the appeal of the ruling of the
7 Chair. A -- a -- yes, Senator Paterson.
8 SENATOR PATERSON: There's
9 nothing in our rules that says that I can't
10 debate Senator Velella's attempt to overturn the
11 ruling of the Chair, is there, and if that being
12 -- I mean, perhaps Senator Velella doesn't want
13 to discuss it, but it doesn't mean that it can't
14 be discussed in the house, and what I'm saying
15 is that Senator Velella just got up and he said
16 that it was all right for Senator Dollinger to
17 start talking but then at a certain point it was
18 unnecessary for him to go as far as he went in
19 his conversation, and I think that would relate
20 back to what Senator Gold so eloquently pointed
21 out just a little while ago. We can not allow
22 our subjective determinations of what people say
23 to govern our practice of rules. Then, as a
9188
1 Senate, we're really going to bring ourselves
2 down as much as the contention discussion that
3 you rightfully relieved us of a little while
4 ago. In other words, we can't stop people from
5 talking because they don't like -- we don't like
6 what they say.
7 Yes, Senator Dollinger did allow
8 himself to get into a substantive discussion of
9 why we should alter the rules, but that's what
10 we're here for. That's what the Senate is for.
11 I heard a discussion a couple months ago about
12 how the budget was passed, and yet we were in
13 negotiation and maybe I might not have liked
14 that some of my colleagues on the other side did
15 it, but they were perfectly entitled to.
16 They're making their point to the public who is
17 represented here and is listening to this
18 discussion, and that's all Senator Dollinger is
19 doing.
20 I think, to some extent, we get
21 up sometimes when we deny that we are here to
22 publicize some issues. I think it was President
23 Woodrow Wilson who said that to publicize is
9189
1 often as important as it is to legislate, and
2 Senator Dollinger is challenging a rule to bring
3 an issue to the floor.
4 I don't see that as something to
5 run away from or something to actually pretend
6 that is wrong. It's absolutely right. One day,
7 if we ever pass this bill that Senator Dollinger
8 is interested in, I'd like to point out, Mr.
9 President, at no point have I discussed what the
10 bill was, that at one point when that bill is
11 passed, they will point to the fact that he
12 raised it at a time when there was a procedural
13 issue, and so what I'm saying is I can
14 understand that Senator Velella does not feel
15 that he should have gone into the -- the actual
16 substance of legislation as much as he did, but
17 that's a subjective determination that he is
18 making. The Chair allowed him to speak. This
19 is America. This is not Bosnia. He has a right
20 to say what he wants to say, and I think we're
21 going too far in this discussion.
22 SENATOR BRUNO: Mr. President.
23 ACTING PRESIDENT KUHL: Senator
9190
1 Bruno.
2 SENATOR BRUNO: Mr. President, I
3 appreciate Senator Paterson lecturing us here in
4 this chamber on how we should function and how
5 we should operate, and I want to just remind
6 Senator Paterson, as he leads the Minority
7 presently, that without rules, without
8 established procedures, you have chaos and we
9 have witnessed the chaotic 20 minutes in an
10 attempt of Senator Dollinger and the Minority to
11 prove a point that, if they don't get their way,
12 that they can disrupt the proceedings of the
13 Senate.
14 Well, we are well aware that you
15 can be disruptive. It's not good government to
16 just plain be disruptive. Somewhat childish to
17 stomp around and act in an unbecoming way
18 because we don't get our way. When you have
19 rules and you deal with children, when you
20 establish rules, you have procedures -
21 SENATOR PATERSON: Mr.
22 President.
23 SENATOR BRUNO: I will not yield,
9191
1 Mr. President.
2 -- many times when people would
3 like to do as they please whether they're
4 children or adults, they have to relate to an
5 order, to a discipline. Some of us don't like
6 the rules and the regulations and the laws, but
7 we obey them. We have rules in this Senate. We
8 agreed on those rules. We agreed on those
9 procedures, and it serves no becoming purpose to
10 try and be disruptive because you don't get your
11 way, and when this statement was made that
12 you're being political and that you are
13 grandstanding, that's exactly what is happening
14 in this chamber this morning, and I am sorry,
15 Mr. President, if the good Senator doesn't like
16 it, but people have a right to voice their
17 opinions just as well and as much as you have a
18 right to be disruptive in the chamber to get
19 your way.
20 You will not be disruptive. This
21 chamber will operate in an orderly procedural
22 way established by this Majority and, Mr.
23 President, this Majority's elected by the people
9192
1 of this state, and this Majority elects a leader
2 and the leader will manage the affairs of the
3 Senate and, if any person wants to be
4 disruptive, they can to the best of their
5 ability, but the Chair has an obligation to
6 rule, keep order, and I don't know whether you
7 have a new gavel or not, but I think you're
8 going to need it? Do you?
9 ACTING PRESIDENT KUHL: Good, a
10 bigger and stronger one, Senator Bruno.
11 SENATOR BRUNO: Good, bigger
12 stronger. That is -- it looks like it can do
13 the job.
14 We have a long day before us, Mr.
15 President. We want to get on with the people's
16 business. We are not going to be intimidated.
17 We are not going to be bludgeoned into doing
18 other than following the rules of this Senate
19 that we established together.
20 So I would ask my colleagues in
21 this chamber if you would like to conclude this
22 session in the dignified orderly way that we
23 have been proceeding since we went into session
9193
1 in January, I would ask your cooperation in that
2 on both sides of the aisle.
3 Thank you.
4 ACTING PRESIDENT KUHL: Senator
5 Abate, why do you rise?
6 SENATOR ABATE: Yes, I'd like to
7 speak on the motion. Yes, Senator Paterson.
8 Would you yield?
9 SENATOR PATERSON: Yes.
10 ACTING PRESIDENT KUHL: Senator
11 Abate. I didn't hear that discussion. Senator
12 Paterson, did you want to be recognized also?
13 SENATOR PATERSON: Yes, I did,
14 Mr. President, because the remarks of the
15 Majority Leader were made to me, and I would
16 like, as a high point of personal privilege, to
17 respond to them.
18 I don't know that anything -
19 ACTING PRESIDENT KUHL: Senator
20 Paterson, could we take up -- the Senate
21 Majority Leader has called the question. I'd
22 like to get to the question of sustaining the
23 Chair on the point of order that Senator Velella
9194
1 raised. After that, we can come back.
2 SENATOR PATERSON: Mr. President,
3 but the Majority Leader made some remarks about
4 my conduct and my behavior, and I don't know how
5 we can call the question since he was speaking
6 on the motion until I get a chance to respond,
7 and in response, I -- I resent my behavior being
8 described as childish, and I don't think that
9 any action that I have taken on this floor is in
10 any way callow or puerile or in any event in
11 contravention to the desire of the Majority
12 Leader to end this session by June 8.
13 Disruptive would be abusing the
14 right of speech; it would be interrupting when
15 others are speaking. It would be not listening
16 to the directive of the Chair. That's what I
17 think abusive and childish behavior would be.
18 What I'm saying is that I have been trying to
19 point out that the rules of the Senate provide
20 for the kind of motion that Senator Dollinger
21 made. He wanted to amend the rules to bring
22 forth a motion to discharge.
23 Now, no, I don't like the fact
9195
1 that Senator Dollinger's motion is probably
2 going to fail but, if Senator Dollinger had
3 finished speaking on his motion and we'd called
4 the question, we would be in some other
5 procedure right now, probably passing some
6 legislation. But the reason Senator Dollinger
7 never got to the end of his conversation is
8 because he was challenged on the substance of
9 what he was talking about and that, in my
10 opinion, is in no way something that needs to be
11 raised or to critique one's colleagues as being
12 childish or immature. He had a right to speak
13 on his motion as we have always allowed in the
14 Senate, and Senator Gold pointed that out a
15 little while ago.
16 Senator Gold said that this would
17 be the first time in the history of this chamber
18 that anyone had ever been, in a sense, usurped
19 from continuing because someone didn't like what
20 they were saying, and then -
21 SENATOR VELELLA: Mr. President,
22 may I interrupt for a moment? I withdraw my -- I
23 withdraw my motion to appeal the ruling of the
9196
1 Chair.
2 ACTING PRESIDENT KUHL: All
3 right. Call is withdrawn. The motion to appeal
4 the ruling of the Chair is withdrawn. We're now
5 on debate on the actual motion itself to alter
6 the rules of the Senate.
7 Senator Abate.
8 SENATOR ABATE: I think we have
9 to put politics aside today, and I know it's
10 very difficult, and I agree with the Majority
11 Leader who said -- would you prefer -
12 SENATOR CONNOR: Yes.
13 SENATOR ABATE: Yes, I will
14 explain my vote during the roll call.
15 ACTING PRESIDENT KUHL: The
16 motion before the house is a motion to alter the
17 rules of the Senate relative to the deadline
18 date for the filing of discharge motions. A
19 vote in favor will be for altering the rules of
20 the house. A vote against will be a vote not in
21 favor of altering the current rules of the
22 house.
23 Senator Paterson.
9197
1 SENATOR PATERSON: Mr. President,
2 I would -- and thank you, Mr. President. I
3 think you have tried to be fair to both sides in
4 this discussion. We would like -- we would like
5 a slow roll call on this.
6 ACTING PRESIDENT KUHL: Are there
7 five Senators -- there are five Senators
8 requesting. Secretary will call the roll
9 slowly.
10 THE SECRETARY: Senator Abate.
11 SENATOR ABATE: Yes, I'd like to
12 explain my vote.
13 ACTING PRESIDENT KUHL: Senator
14 Abate to explain her vote.
15 SENATOR ABATE: Yes, clearly we
16 all in this chamber agree with Senator Bruno
17 that this is a body of great tradition and great
18 rules, and I would say 99 percent of the year we
19 honor those rules, but I believe there's an old
20 expression that exceptions prove the rules, and
21 there are times that public debate or maybe
22 public catastrophe or the public will mandate
23 that we not just be driven by formula and rules,
9198
1 and I suspect if the public were here today, the
2 communities we represent and serve, if they
3 heard this debate and the minutes we have wasted
4 talking about rules and whether they should be
5 broken and traditions and chaos and whether we
6 have the authority to amend the rules, they
7 would say, how silly we are.
8 Shouldn't there be a public
9 debate around an issue so critical, around
10 saving lives and banning assault weapons?
11 So I believe it's our
12 responsibility as leaders today, whether you
13 believe in the ban on assault weapons or not,
14 that we have a public debate and we support
15 amending the rules. I think if we look at this
16 issue dispassionately, the public will demand of
17 us, will demand of us, because it's in
18 extraordinary times, if there was an Oklahoma
19 City that occurred and we needed to take -- make
20 some measure around anti-terrorism, do you think
21 the public would allow us to say the rules won't
22 allow public debate? We have no time to
23 legislate public safety.
9199
1 I believe this is an issue of the
2 same kind of import. It deals with safety of
3 our children; it deals with safety of our law
4 enforcement. This is the time to air these
5 issues. The public demands that we do so.
6 I vote yes.
7 ACTING PRESIDENT KUHL: Senator
8 Abate will be recorded in the affirmative.
9 Secretary continue to call the roll slowly.
10 THE SECRETARY: Senator Babbush.
11 (There was no response. )
12 Senator Bruno.
13 SENATOR BRUNO: No.
14 THE SECRETARY: Senator
15 Connor.
16 SENATOR CONNOR: Aye.
17 THE SECRETARY: Senator Cook.
18 SENATOR COOK: No.
19 THE SECRETARY: Senator
20 DeFrancisco.
21 SENATOR DeFRANCISCO: No.
22 THE SECRETARY: Senator DiCarlo.
23 SENATOR DiCARLO: No.
9200
1 THE SECRETARY: Senator
2 Dollinger.
3 SENATOR DOLLINGER: Mr.
4 President, to explain my vote.
5 ACTING PRESIDENT KUHL: Senator
6 Dollinger to explain his vote.
7 SENATOR DOLLINGER: Since I have
8 something to do with the matter before the house
9 and I guess the procedural posture in which it's
10 located.
11 Mr. President, I, as a lawyer and
12 as an elected official, I have great respect for
13 rules. There are a whole bunch of them I don't
14 like, but nonetheless I believe it's my job to
15 respect those rules and to follow them when my
16 conscience tells me that it's the right thing to
17 do and when my view of society and my role in it
18 tells me what I ought to do.
19 But I also believe, I guess, like
20 a whole bunch of American thinkers in the past,
21 be they Henry David Thoreau or Martin Luther
22 King and others, that sometimes when the rules
23 don't do what both your conscience tells you you
9201
1 should do and what you think is the right thing
2 to do for the public, at that point the rules
3 seem to have minor significance and it becomes
4 more important to get the substance and to make
5 sure that you do the right thing.
6 We've talked a lot about the will
7 of the majority. I don't think there's any
8 doubt in this state that the will of the
9 majority, if we could pack all of those 17-1/2
10 million people in this room and said, How many
11 of you want to vote to suspend the rules of the
12 Senate to allow a motion to discharge so that
13 the consequence of that is that all your elected
14 officials would have an opportunity to pass a
15 ban on assault weapons, my guests 12 or 13
16 million hands would go up. That's the majority
17 that we're ultimately responsible for.
18 I'll close with just one
19 thought. I'm not used to getting my way in this
20 chamber. I don't think I've ever gotten my way
21 in this chamber, but I dislike it when someone
22 says that I'm disruptive and childish, that I'm
23 being political and grandstanding because for
9202
1 once I don't want to get my way, I want to get
2 something that will benefit the people of this
3 state. I think that's worth challenging rules.
4 I think it's worth challenging authority. I
5 think of it's worth making every attempt to make
6 sure that the people's will rules.
7 That's why I did this.
8 ACTING PRESIDENT KUHL: Senator
9 Dollinger in the affirmative?
10 SENATOR DOLLINGER: Yes, Mr.
11 President.
12 ACTING PRESIDENT KUHL: Senator
13 Dollinger will be recorded in the affirmative.
14 Secretary will continue to call the roll
15 slowly.
16 THE SECRETARY: Senator Espada.
17 SENATOR ESPADA: Yes.
18 THE SECRETARY: Senator Farley.
19 SENATOR FARLEY: No.
20 THE SECRETARY: Senator Galiber.
21 (There was no response. )
22 Senator Gold.
23 SENATOR GOLD: Mr. President.
9203
1 ACTING PRESIDENT KUHL: Senator
2 Gold, to explain his vote.
3 SENATOR GOLD: Mr. President.
4 Mr. President, I first of all want to
5 congratulate you because I did think that anyone
6 that sits in that Chair must take that
7 responsibility very seriously, and I think in
8 the rulings you've had to make today you have
9 taken it seriously and, as one little old
10 Democrat to a Republican, I want to tell you
11 that I appreciate the fact that the Constitution
12 means something to you. To some, it means
13 something else.
14 But the importance of this motion
15 is that we follow the rules, Senator Bruno, and
16 in preparing rules which this side of the aisle
17 may have made differently, you created a sane,
18 logical mechanism to change the rules if we felt
19 it necessary just as the three-day rule on bills
20 can be overruled if it's necessary.
21 I think it's important that that
22 language not only be part of our rules, Senator
23 Bruno, but that we take it seriously and, while
9204
1 the majority party in this house has always had
2 that language in the rules, it's incredible -
3 incredible that for 20 years or more, there's
4 never been one little itsy-bitsy situation where
5 the rules might be changed in order to bring an
6 issue to the floor.
7 So I'm not going to discuss the
8 merits of the bill involved, Senator Dollinger's
9 bill. Those merits are overwhelming and they're
10 clear. I'm going to discuss why I'm voting yes
11 because the motion has merit.
12 The motion has merit because the
13 rules provided by the Republicans anticipated
14 because they're all honorable men and woman,
15 anticipated that there would be this day and
16 this day has come and, therefore, in voting for
17 the motion to suspend the rules to air the bill,
18 my vote in favor is a vote in favor of the dig
19 nity of our rules and the dignity of this
20 chamber.
21 I vote yes.
22 ACTING PRESIDENT KUHL: Senator
23 Gold will be recorded in the affirmative.
9205
1 Secretary will continue to call the roll
2 slowly.
3 THE SECRETARY: Senator
4 Gonzalez.
5 SENATOR GONZALEZ: Yes.
6 THE SECRETARY: Senator Goodman.
7 SENATOR GOODMAN: No.
8 THE SECRETARY: Senator Hannon.
9 SENATOR HANNON: No.
10 THE SECRETARY: Senator Hoblock.
11 SENATOR HOBLOCK: No.
12 THE SECRETARY: Senator
13 Hoffmann.
14 (There was no response. )
15 Senator Holland.
16 SENATOR HOLLAND: No.
17 THE SECRETARY: Senator Johnson.
18 SENATOR JOHNSON: No.
19 THE SECRETARY: Senator Jones.
20 SENATOR JONES: Yes.
21 THE SECRETARY: Senator Kruger.
22 SENATOR KRUGER: Yes.
23 THE SECRETARY: Senator Kuhl.
9206
1 SENATOR KUHL: No.
2 THE SECRETARY: Senator Lack.
3 SENATOR LACK: No.
4 THE SECRETARY: Senator Larkin.
5 SENATOR LARKIN: No.
6 THE SECRETARY: Senator LaValle.
7 SENATOR LAVALLE: No.
8 THE SECRETARY: Senator Leibell.
9 SENATOR LEIBELL: No.
10 THE SECRETARY: Senator
11 Leichter.
12 (There was no response. )
13 Senator Levy.
14 (There was no response. )
15 Senator Libous.
16 SENATOR LIBOUS: Nay.
17 THE SECRETARY: Senator Maltese.
18 SENATOR MALTESE: No.
19 THE SECRETARY: Senator
20 Marcellino.
21 SENATOR MARCELLINO: No.
22 THE SECRETARY: Senator Marchi.
23 SENATOR MARCHI: No.
9207
1 THE SECRETARY: Senator
2 Markowitz.
3 SENATOR MARKOWITZ: Yes.
4 THE SECRETARY: Senator Maziarz.
5 SENATOR MAZIARZ: No.
6 THE SECRETARY: Senator Mendez.
7 SENATOR MENDEZ: Yes.
8 THE SECRETARY: Senator
9 Montgomery.
10 (There was no response. )
11 Senator Nanula.
12 SENATOR NANULA: Yes.
13 THE SECRETARY: Senator
14 Nozzolio.
15 (There was no response. )
16 Senator Nozzolio.
17 SENATOR NOZZOLIO: No.
18 THE SECRETARY: Senator Onorato.
19 SENATOR ONORATO: Aye.
20 THE SECRETARY: Senator
21 Oppenheimer.
22 SENATOR OPPENHEIMER: To explain
23 my vote.
9208
1 ACTING PRESIDENT KUHL: Senator
2 Oppenheimer, to explain her vote.
3 SENATOR OPPENHEIMER: In this
4 house there are many rules and we in the
5 minority have to live by them.
6 ACTING PRESIDENT KUHL: Excuse
7 me, Senator Oppenheimer. Can we have a little
8 order in the house please? It's very, very, very
9 quiet. Let's make it very, very, very quiet.
10 Thank you, Senator Oppenheimer.
11 Senator Oppenheimer to explain
12 her vote.
13 SENATOR OPPENHEIMER: As I was
14 saying, there are many rules in this house that
15 we, the Minority, live by and I think we live by
16 them with a fair amount of equanimity,
17 recognizing that we are the Minority.
18 There's the rule, though, that
19 doesn't permit discussion on issues because we
20 can't get those issues up on the floor. This is
21 the rule I find most distressing in a democratic
22 society. A lot of my constituents have said,
23 Well, why can't you pull an issue up to the
9209
1 floor so at least it can be discussed, because
2 there are many issues, and I feel particularly
3 strongly about this issue, because I'm a
4 co-sponsor of the bill, but there are many
5 issues that the people want to hear discussed,
6 and if their legislator doesn't agree with their
7 opinions, then they want to be able to have the
8 opportunity to address those issues with their
9 legislator, who knows, in listening to arguments
10 may have some important points that they can
11 make to us and they can perhaps cause us to
12 change our votes.
13 On this particular issue which is
14 before us on this bill, there are so many people
15 that have supported this, including at some
16 times our Attorney General, our Governor,
17 perhaps 80 percent of the people in this state
18 have spoken in support of this, and I believe
19 this is the type of issue that must be brought
20 to the floor at whatever cost.
21 I'm glad Senator Dollinger did
22 it. I also want to commend our President who
23 has acted in a very presidential manner and has
9210
1 tried to weigh both issues and present them in
2 as fair a manner as possible. But our law
3 enforcement community wants this bill
4 desperately, as does by far -- by far the vast
5 majority of the people of this state, and this
6 is something that we should be discussing and we
7 shouldn't be running away from it.
8 I vote yes.
9 ACTING PRESIDENT KUHL: Senator
10 Oppenheimer will be recorded in the
11 affirmative.
12 THE SECRETARY: Senator Padavan.
13 SENATOR PADAVAN: No.
14 THE SECRETARY: Senator
15 Paterson.
16 SENATOR PATERSON: Mr. President.
17 ACTING PRESIDENT KUHL: Senator
18 Paterson, to explain his vote.
19 SENATOR PATERSON: Very briefly,
20 I came to this chamber in 1986 and I cast a vote
21 in the Health Committee, at the time I believe
22 Senator Padavan was the chair, to allow the
23 issue of parental consent for abortion to come
9211
1 to the floor of the house.
2 I was somewhat pilloried and
3 cajoled by pro-choice groups at that time
4 forecasting that vote, even though I assured
5 them that when the bill came to the house, I was
6 going to vote against the bill. The reason I
7 did that, and the way I've tried to follow in my
8 career here, is the recognition that there are
9 issues that I may not agree with but they really
10 deserve attention on the floor of a high body
11 such as the New York State Senate.
12 The assault weapons bill, which I
13 have not commented on to this point, is, I
14 think, one that really touches at the hearts of
15 individuals -- tragedies such as the Long Island
16 Rail Road incident and issues that are on
17 people's minds and need to be discussed, and I
18 think that's why Senator Dollinger tried to
19 amend the rules today to afford us that
20 opportunity.
21 I don't mean to lecture. I don't
22 mean to condescend. I only mean to suggest that
23 what we do around here to try to win our
9212
1 political battles is fine, but we really don't
2 need to engage in the personal acrimony. We're
3 all just trying to serve our constituents. I
4 think we recognize that, and I think that this
5 was actually a good thing. It took an hour, but
6 I think it was a well spent hour making sure
7 that an individual had an opportunity to try to
8 bring an issue that affects individuals all over
9 the state to the floor of the Senate and, if it
10 doesn't appear that he was going to succeed in
11 his motion at least he can go home knowing that
12 he tried.
13 ACTING PRESIDENT KUHL: Senator
14 Paterson in the affirmative.
15 Secretary will continue to call
16 the roll slowly.
17 THE SECRETARY: Senator Present.
18 SENATOR PRESENT: Aye. No.
19 THE SECRETARY: Senator Rath.
20 (There was no audible response. )
21 Senator Saland.
22 SENATOR SALAND: Mr. President,
23 to explain my vote.
9213
1 ACTING PRESIDENT KUHL: Senator
2 Saland, to explain his vote.
3 SENATOR SALAND: Mr. President,
4 my understanding of the rules of this house
5 which certainly I think we all could agree are
6 imperative in the sense that we should conduct
7 our business in an orderly fashion given the
8 fact that there are some 10,000 or so bills that
9 will be introduced during the course of the
10 session, that anybody can introduce a motion to
11 discharge, and my understanding is that Senator
12 Dollinger in this instance could have issued
13 this motion in January, in February and in March
14 and on in, perhaps, to mid-April.
15 I suspect that for whatever
16 reason that was not done and only he can tell us
17 why that wasn't done, but we find ourselves here
18 now in an endeavor to amend rules not at the
19 11th hour but probably something approaching
20 five to 12, and I would think that this either
21 reflects the fact that this was a conscious
22 effort on his part to try and maximize the
23 political capital to be derived from the
9214
1 underlying issue for which he sought to amend
2 the rules or, in fact, he was remiss in not
3 doing what he's done on more than one occasion,
4 in fact, several times in this chamber, just
5 offering a motion to discharge.
6 I think what we've done here is
7 experience and endure a bit of political brick
8 bat. I think what we've done here is endure a
9 significant waste of time and I, Mr. President,
10 vote in the negative.
11 ACTING PRESIDENT KUHL: Senator
12 Saland will be recorded in the negative.
13 The Secretary will continue to
14 call the roll slowly.
15 THE SECRETARY: Senator
16 Santiago.
17 (There was no response. )
18 Senator Sears.
19 SENATOR SEARS: Nay.
20 THE SECRETARY: Senator Seward.
21 (There was no response. )
22 Senator Skelos.
23 SENATOR SKELOS: No.
9215
1 THE SECRETARY: Senator Smith.
2 SENATOR SMITH: Aye.
3 THE SECRETARY: Senator Solomon.
4 SENATOR SOLOMON: Yes.
5 THE SECRETARY: Senator Spano.
6 SENATOR SPANO: Nay.
7 THE SECRETARY: Senator
8 Stachowski.
9 SENATOR STACHOWSKI: Explain my
10 voted.
11 ACTING PRESIDENT KUHL: Senator
12 Stachowski, to explain his vote.
13 SENATOR STACHOWSKI: Mr.
14 President, I didn't plan on explaining my vote
15 but I do have to comment to Senator Saland in
16 answer to something he said. I'd like to point
17 out that, if the Majority had decided to merely
18 let Senator Dollinger challenge the rule, state
19 his case and vote accordingly, this would have
20 been over a long time ago; so if any party in
21 this house is guilty of wasting time, it
22 probably was by trying to be a little bit too
23 heavy handed in something that could have been
9216
1 quite simply done procedurally, quickly and in a
2 timely fashion, and we'd probably be well into
3 our Finance meeting and moving the bills that
4 are on the floor.
5 I vote yes.
6 ACTING PRESIDENT KUHL: Senator
7 Stachowski will be recorded in the affirmative.
8 The Secretary will continue to
9 call the roll slowly.
10 THE SECRETARY: Senator
11 Stafford.
12 ACTING PRESIDENT KUHL: Senator
13 Stafford to explain his vote.
14 SENATOR STAFFORD: Mr. President,
15 first Senator Paterson, I think this is the
16 second mistake you've made this year. Senator
17 Lombardi was the chairman of Health when you
18 cast that vote. I was sitting beside you.
19 On the other hand, what I'm going
20 to say is going to be, I hope, with good will.
21 I'm saying this simply, the point is we have 61
22 Senators in this chamber. If everyone tried to
23 do what he or she wanted to do and did not
9217
1 follow the order, we would have chaos.
2 Mr. President, I've served in
3 this Senate when there's been chaos and
4 fortunately, there is no chaos right now. I
5 would say that we have to understand, there
6 isn't a person in this chamber, myself included,
7 that doesn't have bills or issues that they want
8 to have discussed and, Mr. President, I hardly
9 ever disagree with my friend and Senator from
10 the west, but if anything, I would suggest this
11 has not been heavy handed but again, we all have
12 to understand it has to be with order when you
13 have 61 people.
14 Thank you.
15 ACTING PRESIDENT KUHL: Senator
16 Stafford will be recorded in the negative.
17 Secretary will continue to call
18 the roll slowly.
19 THE SECRETARY: Senator
20 Stavisky.
21 (There was no response. )
22 Senator Trunzo.
23 SENATOR TRUNZO: No.
9218
1 THE SECRETARY: Senator Tully.
2 SENATOR TULLY: No.
3 THE SECRETARY: Senator Velella.
4 SENATOR VELELLA: Mr. President,
5 to explain my vote.
6 ACTING PRESIDENT KUHL: Senator
7 Velella to explain his vote.
8 SENATOR VELELLA: Mr. President,
9 let's make no mistake about it. This was not a
10 vote on the merits of any legislation. It's not
11 an issue about gun control, assault weapons or
12 anything other than one Senator's political
13 agenda and the facts bear that out.
14 April 11th was the deadline for
15 filing motions to discharge. Senator Dollinger
16 filed 13 motions to discharge on time in order
17 following the procedures of this house, but he
18 saved one, tucked away in that little desk
19 drawer for the right day, today, so that he
20 could bring his issue up and try to embarrass
21 the Majority.
22 I think that kind of conduct was
23 out of order, Senator, and I apologize if I
9219
1 offend you, but I think the merits and the facts
2 speak for themselves. You did it for 13 other
3 bills; you couldn't do it for this one. You
4 saved it for one special day so you could get
5 the attention.
6 I vote no.
7 ACTING PRESIDENT KUHL: Senator
8 Velella will be recorded in the negative.
9 Secretary will continue to call
10 the roll slowly.
11 THE SECRETARY: Senator Volker.
12 SENATOR VOLKER: No.
13 THE SECRETARY: Senator Waldon.
14 ACTING PRESIDENT KUHL: Senator
15 Waldon, to explain his vote.
16 SENATOR WALDON: Thank you very
17 much, Mr. President.
18 My colleagues, our founding
19 fathers were smarter than us. They were much
20 smarter than us. They ensured that this
21 government would run because there would be a
22 balancing of power. They created the judiciary
23 to review whatever we do and the executive
9220
1 does. They created the executive so that he or
2 she could be above the fray, above the fray of
3 the arguing, the debating, the groveling and the
4 grit and grime of politics that is the
5 legislative process, and in their wisdom they
6 ensured that the smallest constituency would
7 have a voice in this chamber and in our lower
8 house, and the purpose for that was that the
9 things that need to be discussed would be
10 discussed in an open air and open forum with the
11 light of day shining thereupon.
12 And, therefore, I would encourage
13 my colleagues to recognize the wisdom of the
14 founding fathers and let us not be overly
15 meddlesome in what we do. Let us not allow our
16 personal animosity to interfere with the process
17 of this august body. Let us recognize that no
18 matter the date, the rhythm of the process is
19 what drives us, not someone's personal crop.
20 I vote in the affirmative.
21 ACTING PRESIDENT KUHL: Senator
22 Waldon will be recorded in the affirmative.
23 Secretary will continue to call
9221
1 the roll slowly.
2 THE SECRETARY: Senator Wright.
3 SENATOR WRIGHT: Nay.
4 ACTING PRESIDENT KUHL: Secretary
5 will call the absentees.
6 THE SECRETARY: Senator Babbush.
7 (There was no response. )
8 Senator Hoffmann.
9 (There was no response. )
10 Senator Leichter.
11 (There was no response. )
12 Senator Levy.
13 SENATOR LEVY: Aye -- or no.
14 ACTING PRESIDENT KUHL: No.
15 THE SECRETARY: Senator
16 Montgomery.
17 (There was no response. )
18 Senator Santiago.
19 (There was no response. )
20 Senator Seward.
21 (There was no response. )
22 Senator Stavisky.
23 (There was no response. )
9222
1 ACTING PRESIDENT KUHL: Announce
2 the results.
3 THE SECRETARY: Ayes 18, nays
4 35.
5 ACTING PRESIDENT KUHL: The
6 motion is lost.
7 Senator Skelos.
8 SENATOR SKELOS: Mr. President,
9 at this time, there will be an immediate meeting
10 on behalf of Senator Wright of the Alcoholism
11 and Substance Abuse Committee in Room 332 of the
12 Capitol.
13 ACTING PRESIDENT KUHL: Immediate
14 meeting of the Alcoholism and Substance Abuse
15 Committee in the Majority Conference Room, Room
16 332. Immediate meeting.
17 SENATOR SKELOS: That meeting,
18 just for preparation purposes after that will be
19 Crime Victims and Corrections in Room 332
20 following Senator Wright's committee meeting.
21 ACTING PRESIDENT KUHL: There
22 will be an immediate meeting after the Committee
23 on Alcoholism and Substance Abuse of the Crime
9223
1 and Corrections Committee in Room 332.
2 Chair recognizes Senator Skelos.
3 SENATOR SKELOS: Mr. President,
4 at this time if we could return to motions and
5 resolutions and I move that we adopt the
6 Resolution Calendar in its entirety.
7 ACTING PRESIDENT KUHL: The
8 question is on the Resolution Calendar
9 adoption. All those in favor signify by saying
10 aye.
11 (Response of "Aye.")
12 Opposed nay.
13 (There was no response.)
14 The Resolution Calendar is
15 adopted.
16 SENATOR SKELOS: Mr. President, I
17 also believe that Resolution Number 1640 by
18 Senator Galiber, he requested that the
19 resolution be left open for sponsorship.
20 ACTING PRESIDENT KUHL: The -
21 SENATOR SKELOS: The resolution
22 honors Kareem Abdul Jabar.
23 ACTING PRESIDENT KUHL: Are there
9224
1 members who would like to go on the Resolution
2 Number 1640 honoring Kareem Abdul Jabar in the
3 chamber? Is there anybody who doesn't want to
4 go on it? If we could adhere to past practice,
5 Senator Skelos, and put all the members on that
6 resolution except for those who don't want to be
7 on it.
8 SENATOR SKELOS: I think the
9 members should notify the desk if they wish to
10 go on the resolution.
11 ACTING PRESIDENT KUHL: All
12 right. I'll ask the members to notify the desk
13 if they wish to go on it. Those members who
14 wish to go on Resolution Number 1640 signify by
15 raising their hands, please. Hold them up for
16 just a moment.
17 SENATOR SKELOS: Mr. President,
18 while we're doing this, if you could recognize
19 Senator Padavan.
20 ACTING PRESIDENT KUHL: Chair
21 recognizes Senator Padavan.
22 SENATOR PADAVAN: Thank you, Mr.
23 President.
9225
1 By unanimous consent, I would
2 like the record to show if I had been in the
3 chamber yesterday, Monday, June 12th, I would
4 have voted no on Calendar 994, Senate Bill
5 Number 5019.
6 ACTING PRESIDENT KUHL: Senator
7 Padavan, the record will reflect that had you
8 been in the chamber when a vote was called on
9 Calendar Number 994, that you would have voted
10 in the negative.
11 Senator Skelos.
12 SENATOR SKELOS: Is there any
13 housekeeping at the desk?
14 SENATOR GOLD: Senator Markowitz
15 has some housekeeping, Mr. President.
16 ACTING PRESIDENT KUHL: Yes,
17 there is, Senator Skelos. We do have a motion.
18 The Chair will recognize Senator Maltese for a
19 motion.
20 SENATOR MALTESE: Mr. President,
21 I wish to call up my bill, Print Number 3718A,
22 recalled from the Assembly, which is now at the
23 desk.
9226
1 ACTING PRESIDENT KUHL: Secretary
2 will read the title.
3 THE SECRETARY: Calendar Number
4 1218, by Senator Maltese, Senate Print 3718A, an
5 act to amend the Administrative of the city of
6 New York.
7 ACTING PRESIDENT KUHL: Senator
8 Maltese.
9 SENATOR MALTESE: Mr. President,
10 I now move to reconsider the vote by which the
11 bill was passed.
12 ACTING PRESIDENT KUHL: Motion is
13 to reconsider the vote by which the bill passed
14 the house. Secretary will call the roll on
15 reconsideration.
16 (The Secretary called the roll on
17 reconsideration. )
18 THE SECRETARY: Ayes 53.
19 ACTING PRESIDENT KUHL: Bill is
20 before the house. Senator Maltese.
21 Would you like to offer up the
22 following amendments?
23 SENATOR MALTESE: Yes, Mr.
9227
1 President.
2 ACTING PRESIDENT KUHL:
3 Amendments are received and adopted, Senator
4 Maltese.
5 The Chair recognizes Senator
6 Skelos.
7 SENATOR SKELOS: Yes, at this
8 time, Mr. President, if we could take up the
9 calendar non-controversial.
10 ACTING PRESIDENT KUHL: Secretary
11 will read the non-controversial calendar.
12 THE SECRETARY: On page 4,
13 Calendar Number 87, by Senator Holland, Senate
14 Print 1247A, an act to amend the Education Law,
15 in relation to contracts for the transportation
16 of school children.
17 ACTING PRESIDENT KUHL: Secretary
18 will read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect on the first day of
21 January.
22 ACTING PRESIDENT KUHL: Call the
23 roll.
9228
1 (The Secretary called the roll. )
2 THE SECRETARY: Ayes 53.
3 ACTING PRESIDENT KUHL: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 90, by Senator Cook, Senate Print 290C, an act
7 to amend the Social Services Law, in relation to
8 the establishment of the Scenic Vistas program.
9 ACTING PRESIDENT KUHL: Secretary
10 will read the last -
11 SENATOR PATERSON: Explanation.
12 ACTING PRESIDENT KUHL: Lay the
13 bill aside at the request of the acting Minority
14 Leader.
15 THE SECRETARY: Calendar Number
16 128, by Senator Levy, Senate Print 2591D.
17 SENATOR PATERSON: Lay aside.
18 ACTING PRESIDENT KUHL: Lay the
19 bill aside.
20 THE SECRETARY: Calendar Number
21 197, by Senator Seward, Senate Print 2016A, an
22 act to amend the Tax Law, in relation to
23 extending the expiration of the provisions
9229
1 authorizing the county of Tompkins.
2 SENATOR PATERSON: Lay aside,
3 please.
4 ACTING PRESIDENT KUHL: Lay the
5 bill aside.
6 THE SECRETARY: Calendar Number
7 225, by Senator Levy, Senate Print 975B, an act
8 to amend the Vehicle and Traffic Law and the
9 Public Health Law, in relation to requiring
10 businesses selling or leasing bicycles.
11 SENATOR PATERSON: Lay aside.
12 ACTING PRESIDENT KUHL: Lay the
13 bill aside.
14 THE SECRETARY: Calendar Number
15 229, by Senator Levy, Senate Print 3488A, an act
16 to amend the Public Authorities Law, in relation
17 to requiring the Metropolitan Transportation
18 Authority to implement and maintain subway
19 station signs.
20 ACTING PRESIDENT KUHL: Secretary
21 will read the last section.
22 THE SECRETARY: Section 3. This
23 act shall take effect immediately.
9230
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 53.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 230, by Senator Sears, Senate Print 210D, an act
9 to amend the Penal Law, in relation to dissemin
10 ating indecent material to minors.
11 ACTING PRESIDENT KUHL: Secretary
12 will read the last section.
13 THE SECRETARY: Section 7. This
14 act shall take effect on the 1st day of
15 November.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 53.
20 ACTING PRESIDENT KUHL: Bill is
21 passed.
22 THE SECRETARY: Calendar Number
23 241, by Senator Volker, Senate Print 2445.
9231
1 SENATOR PATERSON: Lay aside.
2 ACTING PRESIDENT KUHL: Lay the
3 bill aside.
4 THE SECRETARY: Calendar Number
5 279, by member of the Assembly Dinowitz,
6 Assembly Print 4814A, an act to amend the
7 Election Law, in relation to appointment of
8 election inspectors.
9 ACTING PRESIDENT KUHL: Secretary
10 will read the last section.
11 THE SECRETARY: Section 3. This
12 act shall take effect on the 1st day of
13 December.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 53.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 280, by Senator Maltese, Senate Print 3084, an
22 act to amend the Election Law, in relation to
23 political committees making no expenditures.
9232
1 ACTING PRESIDENT KUHL: Secretary
2 will read the last section.
3 THE SECRETARY: Section 2. This
4 act shall take effect on the 1st day of January.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 53.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 307, by Senator Seward, Senate Print 2825A, an
13 act to amend the Tax Law, in relation to
14 extending the expiration of the provisions
15 authorizing the county of Cortland.
16 ACTING PRESIDENT KUHL: Secretary
17 will lead the last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 53.
9233
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 THE SECRETARY: Calendar Number
4 506, by Senator DeFrancisco.
5 SENATOR GOLD: Lay it aside.
6 ACTING PRESIDENT KUHL: Lay the
7 bill aside.
8 THE SECRETARY: Calendar Number
9 668, by Senator Velella, Senate Print 3456A, an
10 act to amend -
11 SENATOR PATERSON: Lay aside.
12 ACTING PRESIDENT KUHL: Lay the
13 bill aside.
14 THE SECRETARY: Calendar Number
15 675, by Senator Marchi, Senate Print 593A, an
16 act to amend the Real Property Tax Law, in
17 relation to providing to property owned by an
18 educational institution.
19 ACTING PRESIDENT KUHL: Secretary
20 will read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
9234
1 roll.
2 (The Secretary called the roll. )
3 THE SECRETARY: Ayes 53.
4 ACTING PRESIDENT KUHL: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 676, by member of the Assembly Weprin, Assembly
8 Print 3147A, an act to amend the Education Law,
9 in relation to authorizing waiver of certain age
10 requirements.
11 ACTING PRESIDENT KUHL: Secretary
12 will read the last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 THE SECRETARY: Ayes 53.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 690, by member of the Assembly Rules, Assembly
23 Print 7394, an act to amend the Civil Service
9235
1 Law, in relation to certification of eligible
2 lists.
3 ACTING PRESIDENT KUHL: Secretary
4 will read the last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll. )
10 THE SECRETARY: Ayes 53.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 THE SECRETARY: Calendar Number
14 702, by Senator Velella, Senate Print 3763, an
15 act to amend the Insurance Law, in relation to
16 agent termination reporting requirements.
17 ACTING PRESIDENT KUHL: Secretary
18 will read the last section.
19 SENATOR GOLD: Lay aside.
20 ACTING PRESIDENT KUHL: Lay the
21 bill aside.
22 THE SECRETARY: Calendar Number
23 728, by Senator Levy, Senate Print 973C, an act
9236
1 to amend the Vehicle and Traffic Law, in
2 relation to operation of a motor vehicle.
3 VOICE: Lay aside.
4 ACTING PRESIDENT KUHL: Lay the
5 bill aside.
6 THE SECRETARY: 806, by member of
7 the Assembly DiNapoli, Assembly Print 5182A, an
8 act in relation to directing the Department of
9 Education to distribute information to school
10 districts.
11 ACTING PRESIDENT KUHL: Secretary
12 will read the last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 ACTING PRESIDENT KUHL: Announce
19 the results when tabulated.
20 THE SECRETARY: Ayes 52, nays
21 one, Senator Kuhl recorded in the negative.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
9237
1 THE SECRETARY: Calendar Number
2 831, by Senator Johnson, Senate Print 4469, an
3 act to amend the Election Law, in relation to
4 transmitting of certain information in computer
5 readable form.
6 SENATOR PATERSON: Lay aside.
7 ACTING PRESIDENT KUHL: Lay the
8 bill aside.
9 THE SECRETARY: Calendar Number
10 833, by Senator Maltese, Senate Print 4524, an
11 act to amend the Election Law, in relation to
12 the names of independent bodies.
13 ACTING PRESIDENT KUHL: Secretary
14 will read the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect immediately.
17 ACTING PRESIDENT KUHL: Call the
18 roll.
19 (The Secretary called the roll. )
20 THE SECRETARY: Ayes 53.
21 ACTING PRESIDENT KUHL: The bill
22 is passed.
23 THE SECRETARY: Calendar Number
9238
1 834, by member of the Assembly Sidikman,
2 Assembly Print 444, an act to amend the Election
3 Law, in relation to clarifying that certain
4 provisions of such law apply to all special
5 elections.
6 ACTING PRESIDENT KUHL: Secretary
7 will read the last section.
8 THE SECRETARY: Section 4. This
9 act shall take effect on the 1st day of
10 December.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 53.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 THE SECRETARY: Calendar Number
18 837, by member of the Assembly Sweeney, Assembly
19 Print 4746A, an act to amend the Election Law,
20 in relation to conforming acceptance declination
21 and substitution deadlines.
22 ACTING PRESIDENT KUHL: Secretary
23 will read the last section.
9239
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll. )
6 THE SECRETARY: Ayes 53.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 THE SECRETARY: Calendar Number
10 838, by Senator Maltese, Senate Print 4668, an
11 act to amend the Election Law, in relation to
12 listing ward numbers on petitions.
13 ACTING PRESIDENT KUHL: Secretary
14 will read the last section.
15 THE SECRETARY: Section 3. This
16 act shall take effect on the 15th day of
17 November.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll. )
21 THE SECRETARY: Ayes 53.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
9240
1 THE SECRETARY: Calendar Number
2 895, by Senator Rath, Senate Print 2011A, an act
3 to amend the Environmental Conservation Law, in
4 relation to conformity with federal water use
5 standards.
6 SENATOR PATERSON: Lay aside,
7 please.
8 ACTING PRESIDENT KUHL: Lay the
9 bill aside.
10 THE SECRETARY: Calendar Number
11 910, by Senator Present, Senate Print 1625B, an
12 act to amend the Tax Law, in relation to extend
13 ing the authorization of the county of
14 Cattaraugus.
15 ACTING PRESIDENT KUHL: Secretary
16 will read the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 53.
23 ACTING PRESIDENT KUHL: The bill
9241
1 is passed.
2 THE SECRETARY: Calendar Number
3 921, by Senator Present, Senate Print 2715A, an
4 act to amend the Tax Law, and Chapter 574 of the
5 Laws of 1986, amending the Tax Law.
6 ACTING PRESIDENT KUHL: Secretary
7 will read the last section.
8 THE SECRETARY: Section 4. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 (The Secretary called the roll. )
13 THE SECRETARY: Ayes 53.
14 ACTING PRESIDENT KUHL: The bill
15 is passed.
16 THE SECRETARY: Calendar Number
17 922, by Senator Cook, Senate Print 2964.
18 SENATOR COOK: Lay aside.
19 ACTING PRESIDENT KUHL: There's a
20 local fiscal impact note at the desk. The bill
21 will be laid aside.
22 THE SECRETARY: Calendar Number
23 929, by Senator Kuhl, Senate Print 3533A, an act
9242
1 to amend the Alcoholic Beverage Control Law and
2 the Tax Law, in relation to the shipment of
3 wine.
4 ACTING PRESIDENT KUHL: Secretary
5 will -
6 SENATOR PATERSON: Lay aside.
7 ACTING PRESIDENT KUHL: Lay the
8 bill aside.
9 THE SECRETARY: Calendar Number
10 933, by Senator Nozzolio, Senate Print 3875B, an
11 act to amend the Tax Law, in relation to
12 extending the sales tax in the county of Cayuga.
13 ACTING PRESIDENT KUHL: Secretary
14 will -
15 SENATOR PATERSON: Lay aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 934, by Senator Volker, Senate Print 3890, an
20 act to amend the Tax Law, in relation to
21 extending the sales and use taxes by the county
22 of Wyoming.
23 ACTING PRESIDENT KUHL: Secretary
9243
1 will read the last section.
2 THE SECRETARY: Section 3. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll. )
7 THE SECRETARY: Ayes 53.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 939, by Senator Libous, Senate Print 4386, an
12 act to amend the Tax Law, in relation to
13 extending the effectiveness of provisions
14 authorizing the county of Broome.
15 ACTING PRESIDENT KUHL: Secretary
16 will read the last section.
17 THE SECRETARY: Section 2. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll. )
22 THE SECRETARY: Ayes 53.
23 ACTING PRESIDENT KUHL: The bill
9244
1 is passed.
2 THE SECRETARY: Calendar Number
3 940, by member of the Assembly Matusow, Assembly
4 Print 6345A, an act to amend the Alcoholic
5 Beverage Control Law, in relation to authorizing
6 farm winery licenses.
7 ACTING PRESIDENT KUHL: Secretary
8 will read the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT KUHL: Call the
12 roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 53.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 SENATOR PATERSON: Lay it aside.
18 ACTING PRESIDENT KUHL: The
19 motion is to withdraw the roll call, reconsider
20 the vote -- excuse me, by which the bill
21 passed.
22 Secretary will call the roll on
23 reconsideration.
9245
1 THE SECRETARY: Calendar Number
2 940, by member of the Assembly Matusow, Assembly
3 Print 6345A, an act to amend the Alcoholic
4 Beverage Control Law.
5 ACTING PRESIDENT KUHL: Lay the
6 bill aside.
7 THE SECRETARY: Calendar Number
8 954, by Senator Saland, Senate Print 4025A, an
9 act to amend the Family Court Act and the
10 Domestic Relations Law, in relation to issuance
11 of mutual orders of protection.
12 ACTING PRESIDENT KUHL: Secretary
13 will read the last section.
14 THE SECRETARY: Section 3. This
15 act shall take effect 90 days.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 53.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 THE SECRETARY: Calendar Number
23 962, by Senator Levy, Senate Print 2817, an act
9246
1 to amend the Vehicle and Traffic Law, in
2 relation to authorizing issuance of distinctive
3 license plates.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the last section.
6 THE SECRETARY: Section 2. This
7 act shall take effect immediately.
8 ACTING PRESIDENT KUHL: Call the
9 roll.
10 (The Secretary called the roll. )
11 THE SECRETARY: Ayes 53.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 THE SECRETARY: Calendar Number
15 963, by Senator Hoblock, Senate Print 3108A, an
16 act to amend the Civil Service Law and others,
17 in relation to certain United States civilians
18 serving in World War II.
19 ACTING PRESIDENT KUHL: Secretary
20 will read the last section.
21 THE SECRETARY: Section 16. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
9247
1 roll.
2 (The Secretary called the roll. )
3 THE SECRETARY: Ayes 53.
4 ACTING PRESIDENT KUHL: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 982, by Senator Farley, Senate Print 26A, an act
8 to amend the Banking Law, in relation to
9 enabling mortgage brokers to make Federal
10 Housing Administration mortgage loans.
11 SENATOR STACHOWSKI: Lay aside.
12 THE SECRETARY: Calendar Number
13 987, by Senator Farley, Senate Print 4580A, an
14 act to amend the Tax Law, the Banking Law.
15 SENATOR STACHOWSKI: Lay aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 1017, by Senator Padavan, Senate Print 667, an
20 act to amend the Penal Law, in relation to
21 making citizenship document fraud a Class E
22 felony.
23 ACTING PRESIDENT KUHL: Secretary
9248
1 will read the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect on the 1st day of
4 November.
5 ACTING PRESIDENT KUHL: Call the
6 roll.
7 (The Secretary called the roll.)
8 THE SECRETARY: Ayes 53.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 THE SECRETARY: Calendar Number
12 1278, by Senator Stachowski, Senate Print 4389,
13 an act authorizing the city of Buffalo to
14 discontinue use as park lands certain lands.
15 ACTING PRESIDENT KUHL: There's a
16 home rule message at the desk. Secretary will
17 read the last section.
18 THE SECRETARY: Section 3. This
19 act shall take effect immediately.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 53.
9249
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 THE SECRETARY: Calendar Number
4 1281, by Senator Jones, Senate Print 4738, an
5 act to authorize the city of Rochester to
6 discontinue the use of certain lands as park
7 lands.
8 ACTING PRESIDENT KUHL: There's a
9 home rule message at the desk. Secretary will
10 read the last section.
11 THE SECRETARY: Section 4. This
12 act shall take effect immediately.
13 ACTING PRESIDENT KUHL: Call the
14 roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 53.
17 ACTING PRESIDENT KUHL: The bill
18 is passed.
19 Senator Skelos, that completes
20 the non-controversial calendar.
21 SENATOR SKELOS: Mr. President,
22 as we take up the controversial calendar, I urge
23 the members on both sides of the aisle to be
9250
1 present when the bills come up if they want to
2 explain them or they want to debate them, so we
3 can move along. Controversial calendar.
4 ACTING PRESIDENT KUHL: Secretary
5 will call the controversial calendar beginning
6 with Calendar Number 90, by Senator Cook.
7 THE SECRETARY: On page 4,
8 Calendar Number 90, by Senator Cook, Senate
9 Print 290C, an act to amend the Social Services
10 Law, in relation to the establishment of the
11 Scenic Vistas Program.
12 SENATOR PATERSON: Explanation.
13 ACTING PRESIDENT KUHL: Senator
14 Cook, an explanation of Calendar Number 90 has
15 been asked for by the acting Minority Leader,
16 Senator Paterson.
17 SENATOR COOK: Mr. President,
18 this bill would enable a county to establish a
19 Scenic Vistas program, in other words a program
20 by which public assistance recipients would be
21 employed actually by the county to -- to clean
22 up the highways, improve the views, cut brush,
23 actually make improvements along roadways
9251
1 primarily, as an alternative to being on public
2 assistance.
3 ACTING PRESIDENT KUHL: Senator
4 Paterson.
5 SENATOR PATERSON: Mr. President,
6 if the sponsor would just yield for a brief
7 question.
8 SENATOR COOK: Yes, sir.
9 SENATOR PATERSON: I'm just a
10 little confused as to where the money is going
11 to come from and where the excess money is going
12 to come from to create wages.
13 SENATOR COOK: Senator, Mr.
14 President. Senator, the funds -- this is a
15 local cost; it's a local option; it's a local
16 expense. Obviously, since there's no state par
17 ticipation in this, as there would be if they
18 were on public assistance, it's going to be more
19 cost to the locality.
20 On the other hand, there are some
21 localities that would like to have the program
22 to improve the view along their roads and
23 generally clean it up, and particularly those -
9252
1 those counties that are in tourist areas, that
2 would be very useful for them, so it's a means
3 by which, instead of putting the money into the
4 public assistance program, they use a slightly
5 additional amount of money and spend it on this
6 program instead.
7 SENATOR PATERSON: Mr. President,
8 if the sponsor -
9 ACTING PRESIDENT KUHL: Senator
10 Paterson.
11 SENATOR PATERSON: Just one last
12 question.
13 ACTING PRESIDENT KUHL: Senator
14 Cook, do you continue to yield?
15 SENATOR COOK: Yes, I will.
16 ACTING PRESIDENT KUHL: Senator
17 yields.
18 SENATOR PATERSON: Senator, this
19 is an excellent idea, and it's one that creates
20 jobs, and we're happy to have this legislation
21 on the floor. Just a procedural question,
22 Senator. Do we need legislation to accomplish
23 this since it's a local government initiative?
9253
1 Do we need to pass this bill in the state
2 Legislature to make it happen?
3 SENATOR COOK: Senator, I -- I
4 assume that a county could probably do this.
5 The difference is, however, that there is an
6 ability under this bill to require the public
7 assistance recipient to participate in this
8 program. In other words, if this job is offered
9 to someone who is on home relief and they refuse
10 to accept this job, then they no longer are
11 eligible for home relief.
12 ACTING PRESIDENT KUHL: Senator
13 Paterson.
14 SENATOR PATERSON: Well, the home
15 relief individual refusing the benefit is
16 something that's -- at least that issue is
17 codified into law now, but this is a good piece
18 of legislation. I thank the sponsor for -- I
19 thank Senator Cook for taking my questions.
20 ACTING PRESIDENT KUHL: Secretary
21 will read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect on the 1st day of April.
9254
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll. )
4 THE SECRETARY: Ayes 53.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 Senator Skelos.
8 SENATOR SKELOS: Yes, Mr.
9 President. The Minority has removed their
10 objection to Calendar Number 668 and 895. If we
11 could have those called at this time?
12 ACTING PRESIDENT KUHL: Secretary
13 will read the title of Calendar Number 668.
14 THE SECRETARY: Calendar Number
15 668, by Senator Velella, Senate Print 3456A, an
16 act to amend the Environmental Conservation Law
17 and the Navigation Law, in relation to adding
18 areas of Bronx and New York.
19 ACTING PRESIDENT KUHL: Secretary
20 will read the last section.
21 THE SECRETARY: Section 13. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
9255
1 roll.
2 (The Secretary called the roll. )
3 THE SECRETARY: Ayes 53.
4 ACTING PRESIDENT KUHL: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 895, by Senator Rath, Senate Print 2011A, an
8 acted to amend the Environmental Conservation
9 Law, in relation to conformity with federal
10 water use standards.
11 ACTING PRESIDENT KUHL: Secretary
12 will read the last section.
13 THE SECRETARY: Section 5. This
14 act shall take effect January 1.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 THE SECRETARY: Ayes 53.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 Senator Skelos.
22 SENATOR SKELOS: Mr. President,
23 the Crime Victims Committee is meeting at this
9256
1 time. Following that Committee, there will be a
2 meeting of the Aging Committee in Room 332 of
3 the Capitol.
4 ACTING PRESIDENT KUHL: Immediate
5 meeting of the Crime and Corrections Committee
6 in the Majority Conference Room, Room 332.
7 Immediately following thereafter, there will be
8 a meeting of the Aging Committee in the same
9 Conference Room, Room 332.
10 Secretary will continue to call
11 the controversial calendar.
12 THE SECRETARY: Calendar Number
13 128, by Senator Levy, Senate Print 2591D, an act
14 to amend the Public Authorities Law and the
15 Administrative Code of the city of New York, in
16 relation to establishing the committee on
17 personal security.
18 ACTING PRESIDENT KUHL: Secretary
19 will read the last section.
20 SENATOR PATERSON: Can we have an
21 explanation of that?
22 ACTING PRESIDENT KUHL: Senator
23 Levy, an explanation has been asked for of
9257
1 Calendar Number 128 by the Acting Minority
2 Leader, Senator Paterson.
3 SENATOR LEVY: Thank you very
4 much, Mr. President.
5 Senator Paterson, this bill is
6 supported by the MTA, and it is an outgrowth of
7 a report that the Legislative Commission on
8 Critical Transportation Choices did on the
9 marked escalation of violent and other subway
10 crime in New York City's subway system, and this
11 bill is one of the recommendations of that
12 report, and one of the recommendations really
13 expressed concern that, after the merger of the
14 Transit Authority Police Department into the New
15 York City Police Department, there was a concern
16 as to whether there would be continuing progress
17 in dealing with violent crime in the subway
18 system, and this concern arose because prior to
19 1990 the MTA Board, that report found, ignored
20 the sharp escalating violent and other crime in
21 the subway system. They had no strategy; they
22 had no plan, they provided no oversight and they
23 took no action, and the failures of the MTA and
9258
1 its board materially contributed to the sharp
2 escalation, really an out-of-control run of
3 violent crime in the subway system.
4 So this bill not only deals with
5 the Transit Authority, it also deals with
6 Metro-North and the Long Island Rail Road as it
7 relates to violent crime, and it establishes a
8 committee which I indicated to you the MTA
9 supports, and it also requires certain reporting
10 both by the police department of the city of New
11 York as well as the Long Island Rail Road and
12 Metro-North police, and the purpose of this bill
13 is to make sure that we have a committee in
14 place at the MTA and that they are providing
15 continuous oversight not only as it relates to
16 the ongoing effort to deal with crime in the
17 subway system, but also with the Long Island
18 Rail Road and Metro-North.
19 SENATOR PATERSON: Mr. President.
20 ACTING PRESIDENT KUHL: Senator
21 Paterson.
22 SENATOR PATERSON: I'm always
23 really quite pleased that Senator Levy takes a
9259
1 couple of moments out when I request, to
2 thoroughly explain these pieces of legislation.
3 I know we're in a rush for time, but I really
4 appreciate that and, if the Senator would yield
5 for a question.
6 SENATOR LEVY: Surely.
7 SENATOR PATERSON: Senator, do
8 you think -- I see that the MTA is in favor of
9 this, but Metro-North is opposed. I mean -- I'm
10 sorry. They're all in favor of it. It's the
11 Mayor, Mayor Giuliani, who is opposed, and he
12 feels that this is sort of an attempt to
13 micromanage the security around Metro-North, the
14 Long Island Rail Road, et cetera.
15 Can you explain to us how this
16 would not be an attempt to micromanage it?
17 SENATOR LEVY: Senator, this is
18 not micromanaging the New York City Police
19 Department and its efforts to continue the -
20 their actions to -- to either maintain the
21 progress or to improve the progress in the fight
22 against crime in the subway system.
23 What this bill does on a compre
9260
1 hensive basis, because it goes beyond the subway
2 system to the Long Island Rail Road and
3 Metro-North, but with particular emphasis on the
4 subway system, notwithstanding the good
5 intentions of the mayor, and I certainly take
6 him at his word that -- that the intensity of
7 the fight against violent crime in the subway
8 system is going to continue.
9 I remember back before 1990 in a
10 three-year period of time when violent crime
11 escalated out of control in the subway system.
12 So given the merger, given the fact that the
13 Transit Authority does not have its own police
14 department to continue that progress, we've got
15 to make sure, and the MTA has to make sure, that
16 the New York City Police Department continues
17 the intensity of that job and the mayor -- the
18 mayor may not be pleased with the fact that that
19 attention is going to be placed on his
20 department, and that they're going to have to
21 keep comprehensive statistics of what is going
22 on with crime in the subway system, but we can
23 not, and I say we -- we cannot, nor can the MTA
9261
1 Board permit the progress that has been made by
2 the -- by the Transit Authority Police
3 Department in any way to be diminished or
4 compromised, and that's what this oversight will
5 provide.
6 SENATOR PATERSON: Thank you,
7 Senator Levy.
8 Mr. President, on the bill.
9 Senator Levy, I don't know if
10 you're aware of this, but your legislation may
11 actually have an ancillary benefit that might
12 have not been within your contemplation when you
13 wrote the legislation. The security plan and
14 the crime fighting capacity and some of the
15 incidents that occurred that caused you to draft
16 the legislation certainly stand out, and it's
17 significant that you address them.
18 But just about three weeks an
19 African-American male who was getting off of a
20 Metro-North train was taken into custody by the
21 Metro-North police, even though he did not fit
22 the description of the individual for which they
23 were pursuing. The individual they were
9262
1 pursuing was six inches taller and wore a
2 moustache and did not in any way fit the
3 physical description of this person. This
4 person was taken into custody pursuant to an
5 anonymous letter that was written to the
6 Metro-North police that a well dressed African
7 American male was riding on the train with a
8 gun. It was later determined that the well
9 dressed African-American male was someone else,
10 and was actually a police detective regularly on
11 his way to work, and as a result of being taken
12 into custody, this individual eschewed the
13 opportunity to sue Metro-North and instead
14 demanded a public apology. He is the publisher
15 of a noted economic development magazine.
16 And so the whole new security
17 plan might incorporate in it some procedures to
18 make sure that individuals who are not in any
19 way causing any kind of a problem to their
20 fellow riders on any Metro-North or New York
21 City subway or Long Island Rail Road trains,
22 that these individuals be allowed to ride in
23 piece unless there is reasonable cause to
9263
1 question them.
2 In this case, there obviously was
3 not and the Metro-North police did apologize.
4 However, one of the issues that might be
5 discussed when we re-examine security is just
6 what is the criteria to cause the police to
7 engage in this conduct which we will admit that
8 they were willing to say was absolutely
9 outrageous.
10 ACTING PRESIDENT KUHL: Secretary
11 will read the last section.
12 THE SECRETARY: Section 5. This
13 act shall take effect on the 30th day.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 54.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 197, by Senator Seward, Senate Print 2016A, an
22 act to amend the Tax Law -
23 SENATOR SKELOS: Lay aside,
9264
1 please.
2 ACTING PRESIDENT KUHL: Lay the
3 bill aside.
4 THE SECRETARY: Calendar Number
5 225, by Senator Levy, Senate Print 975B, an act
6 to amend the Vehicle and Traffic Law and the
7 Public Health Law, in relation to requiring
8 businesses selling or leasing bicycles.
9 SENATOR PATERSON: Explanation.
10 ACTING PRESIDENT KUHL: Senator
11 Levy, an explanation of Calendar Number 225 has
12 been asked for by Senator Paterson.
13 SENATOR LEVY: Senator Paterson,
14 as you know, we've passed legislation to require
15 children under the age of 14 to wear bicycle
16 helmets. That law took effect June 1st of 1994.
17 We had about an eight percent or less usage of
18 bicycle helmets in the state before that law.
19 It has sharply escalated.
20 What this bill does is to require
21 the posting -- the posting of a sign by persons
22 who sell or who -- who regularly sell or rent
23 bicycle helmets of the -- of the requirements of
9265
1 that particular law. Like the law that we did
2 here, and I sponsored it a number of years ago,
3 requiring facilities that serve alcoholic
4 beverages to -- to post warnings about fetal
5 alcohol syndrome, that job was done by the State
6 Liquor Authority. The New York State Department
7 of Health has already prepared the signs,
8 Senator Paterson -- I have a copy of that sign
9 with me -- they -- they have 5,000 signs which
10 they have prepared. They are ready to
11 distribute them, and what this bill does is
12 require, like the fetal alcohol syndrome signs,
13 that the signs be displayed in a conspicuous
14 place.
15 ACTING PRESIDENT KUHL: Senator
16 Paterson.
17 SENATOR PATERSON: Mr. President,
18 if the sponsor would yield for a question.
19 ACTING PRESIDENT KUHL: Senator
20 Levy, do you yield?
21 SENATOR LEVY: Yes.
22 ACTING PRESIDENT KUHL: Senator
23 yields.
9266
1 SENATOR PATERSON: Senator Levy,
2 last year Senators Dollinger, Jones and Hoffmann
3 voted against this issue of legislation, over an
4 issue, I believe, that has been raised by
5 colleagues on both sides of the aisle this year,
6 which is taking -- putting into effect certain
7 provisions that impede business.
8 I wanted to give you an
9 opportunity to respond to that, because it does
10 seem to be the tenor of the land that we're
11 trying to encourage business in this state.
12 SENATOR LEVY: I certainly don't
13 think the posting of this sign which tells
14 people who are going to buy a bicycle that -
15 that -- what the law does and what the law
16 requires is going to pique business. This isn't
17 aimed at business. The sign is aimed at -- at
18 the consumer and particularly at parents of
19 children of under 14, as well as children
20 themselves so that they know that they've got to
21 wear a helmet.
22 SENATOR PATERSON: Mr. President,
23 if the sponsor would yield for one other
9267
1 question.
2 SENATOR LEVY: Certainly, yes.
3 ACTING PRESIDENT KUHL: Senator
4 Levy continues to yield, Senator Paterson.
5 SENATOR PATERSON: In a
6 discussion I had with Senator Hoffmann, Senator
7 Levy, we were talking about the possibility of
8 an imposition of a penalty for failure to comply
9 with the new regulation. Is there such a
10 penalty?
11 SENATOR LEVY: There is no
12 penalty, Senator.
13 SENATOR PATERSON: All right.
14 Thank you, Senator.
15 ACTING PRESIDENT KUHL: All
16 right. Thank you, Senator Paterson. Secretary
17 will read the last section.
18 THE SECRETARY: Section 4. This
19 act shall take effect on the 90th day.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll. )
23 ACTING PRESIDENT KUHL: Announce
9268
1 the results when tabulated.
2 Senator Hoffmann to explain her
3 vote.
4 SENATOR HOFFMANN: Thank you, Mr.
5 President.
6 I believe that this is an
7 imposition on businesses, and it would probably
8 be simply a matter of time before sanctions are
9 also imposed on businesses which fail to display
10 yet another state required placard.
11 As a very practical consideration
12 businesses which are in the business of selling
13 either bicycles or bicycle equipment would
14 probably find it in their best interest to make
15 people aware of the need for a helmet based on
16 state law.
17 So it really seems like a
18 superfluous piece of legislation for us to be
19 passing but, more importantly, I'm objecting and
20 voting no based on the fact that I think we have
21 far too many of these regulations that are an
22 imposition on business people in this state and
23 are not found in other states.
9269
1 So in the interest of a better
2 competitive nature and a more compatible
3 business climate in this state, I'm going to
4 vote no, and urge my colleagues to do the same.
5 ACTING PRESIDENT KUHL: Senator
6 Hoffmann will be recorded in the negative.
7 Announce the results -- Senator Gold to explain
8 his vote.
9 SENATOR GOLD: Yeah, I'd like to
10 explain my vote.
11 Mr. President, as part of the
12 budget negotiations we've just completed, we
13 were able to give money to a local hospital in
14 Queens which has been running a program to
15 advertise the benefits of children using
16 helmets. The little bit of money that we gave
17 to them resulted in a 300 percent increase in
18 children using helmets and an enormous decrease
19 in accidents.
20 I vote yes.
21 ACTING PRESIDENT KUHL: Senator
22 Gold will be recorded in the affirmative.
23 Announce the results.
9270
1 Excuse me, Senator Jones to
2 explain her vote.
3 SENATOR JONES: Yes, I voted in
4 the negative last year and my reason, of course,
5 was that I -- I felt the same way that we
6 continued to take away some kind of parental
7 responsibility. I think a parent should know if
8 they have a young child that it's the law and
9 really it's their obligation, not the bicycle
10 seller, to see that that child is wearing a
11 helmet; but since Senator Levy indicates this
12 year that there is no penalty, that it has been
13 removed in this bill, if it's a suggestion then
14 I guess I have no problem with voting for it
15 this time.
16 ACTING PRESIDENT KUHL: Senator
17 Jones will be recorded in the affirmative.
18 Announce the results.
19 THE SECRETARY: Those recorded in
20 the negative on Calendar Number 225 are Senators
21 Hoblock, Hoffmann, Holland, Kuhl, Libous and
22 Maltese. Ayes 48, nays 6.
23 ACTING PRESIDENT KUHL: The bill
9271
1 is passed.
2 THE SECRETARY: Calendar Number
3 241, by Senator Volker, Senate Print 2445, an
4 act to amend the Civil Practice Law and Rules,
5 in relation to limitations on certain actions
6 against professional engineers.
7 ACTING PRESIDENT KUHL: Lay the
8 bill aside temporarily.
9 THE SECRETARY: Calendar Number
10 5....
11 SENATOR GOLD: Which bill are we
12 talking about?
13 ACTING PRESIDENT KUHL: Calendar
14 Number 241 was laid aside. Senator Volker is in
15 a committee meeting.
16 THE SECRETARY: Calendar Number
17 506, by Senator DeFrancisco, Senate Print 3402A,
18 an act to amend the Uniform City Court Act and
19 the Judiciary, in relation to creating the
20 position of part-time city court judge.
21 SENATOR GOLD: Last section.
22 ACTING PRESIDENT KUHL: Last
23 section?
9272
1 THE SECRETARY: Section 3. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll. )
6 THE SECRETARY: Ayes 54.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 THE SECRETARY: Calendar Number
10 702, by Senator Velella, Senate Print 3763, an
11 act to amend the Insurance Law, in relation to
12 agent termination reporting requirements.
13 SENATOR GOLD: Explanation.
14 ACTING PRESIDENT KUHL: Lay the
15 bill aside temporarily.
16 THE SECRETARY: Calendar Number
17 728, by Senator Levy, Senate Print 973C, an act
18 to amend the Vehicle and Traffic Law, in
19 relation to operation of a motor vehicle.
20 ACTING PRESIDENT KUHL: Lay the
21 bill aside temporarily.
22 THE SECRETARY: Calendar Number
23 831, by Senator Johnson, Senate Print 4469, an
9273
1 act to amend the Election Law, in relation to
2 the transmitting of certain information.
3 SENATOR JONES: Explanation.
4 ACTING PRESIDENT KUHL: Senator
5 Johnson, an explanation of Calendar Number 831
6 has been asked for, I believe by Senator Jones.
7 SENATOR JOHNSON: Mr. President.
8 ACTING PRESIDENT KUHL: Senator
9 Skelos.
10 SENATOR SKELOS: The Aging
11 Committee will meet now in Room 332 of the
12 Capitol, and following that there will be a
13 meeting of the Mental Health Committee in the
14 same room.
15 ACTING PRESIDENT KUHL: Immediate
16 meeting of the Aging Committee and immediately
17 thereafter, there will be an immediate meeting
18 of the Health Committee in the Majority
19 Confer... Mental Health Committee, excuse me, in
20 the Majority Conference Room, Room 332.
21 SENATOR JOHNSON: Mr. President.
22 ACTING PRESIDENT KUHL: Thank you
23 for the interruption, Senator Johnson.
9274
1 SENATOR JOHNSON: This bill is a
2 rather simple bill providing a cost-efficient
3 and contemporary method of transmitting infor
4 mation required under the "Motor Voter" bill,
5 the national Voter Registration Act, from the
6 Motor Vehicle Bureaus where people do sign up to
7 the county board of elections in Suffolk
8 County. We don't have the employees to do all
9 the paperwork. We've got a new electronic
10 computer transmission system in -- in place and
11 we'd like to use that system for transmitting
12 that information, so that we can comply
13 efficiently and effectively with the law.
14 We're getting about a thousand
15 new registrants every week; we anticipate some
16 400,000 new or changed joint registrations in
17 the year and we don't have the personnel to do
18 it, and this system will allow us to do it, as I
19 said, in a cost-effective and efficient manner.
20 ACTING PRESIDENT KUHL: Chair
21 recognizes Senator Jones.
22 SENATOR JONES: Would the Senator
23 yield to a question, please?
9275
1 ACTING PRESIDENT KUHL: Senator
2 Johnson, do you yield to a question from Senator
3 Jones?
4 SENATOR JOHNSON: Yes, Mr.
5 President.
6 ACTING PRESIDENT KUHL: Senator
7 yields.
8 SENATOR JONES: I notice there is
9 no fiscal note, Senator, and could you tell me
10 if there is a cost to this and if there is,
11 could you tell me who the cost is borne by, the
12 state or the county?
13 SENATOR JOHNSON: You want to
14 know the cost to our county?
15 SENATOR JONES: Or city. Right;
16 is there a cost? My question is, is there a
17 fiscal implication and, if so, is it a state
18 cost or is it a cost to Suffolk County?
19 SENATOR JOHNSON: It's going to
20 let Suffolk County save money, because otherwise
21 they're going to have to hire many more
22 employees to do this work if it's going to be
23 done manually, so I don't think there's any
9276
1 problem with the Motor Vehicles since they're
2 already set up to make this kind of transmission
3 so I'd say it's going to save money, but I can't
4 tell you the exact amount.
5 ACTING PRESIDENT KUHL: Senator
6 Jones.
7 SENATOR JONES: Senator yield to
8 another question?
9 ACTING PRESIDENT KUHL: Senator
10 Johnson, do you continue to yield?
11 SENATOR JOHNSON: Yes, Mr.
12 President.
13 ACTING PRESIDENT KUHL: Senator
14 continues to yield.
15 SENATOR JONES: All right. Is it
16 correct, Senator, that the same material is
17 required of all counties?
18 SENATOR JOHNSON: Well, I mean
19 every county has to comply with the "Motor
20 Voter" law, yes.
21 SENATOR JONES: Thank you,
22 Senator.
23 Mr. President, I believe I have
9277
1 an amendment at the desk. I would waive its
2 reading and -
3 ACTING PRESIDENT KUHL: Senator
4 Jones, there is an amendment at the desk.
5 You're asking that the reading be waived and
6 that you have an opportunity to explain it?
7 SENATOR JONES: Yes.
8 ACTING PRESIDENT KUHL: Reading
9 will be waived, and the Chair recognizes Senator
10 Jones to explain the amendment.
11 SENATOR JONES: Yes. I had
12 spoken to Senator Johnson earlier about this. I
13 have correspondence from the Monroe County Board
14 of Elections who is asking for this same ability
15 to have this material transmitted to them. They
16 have a very efficient system in Monroe County,
17 are well known throughout the state for their
18 board of elections.
19 They're very anxious to have this
20 same service and are requesting that they be
21 included as well in this bill; so I'm asking
22 that it be amended to also include Monroe
23 County.
9278
1 ACTING PRESIDENT KUHL: The
2 question is on the amendment. All those in
3 favor significant -- all those in favor of the
4 amendment signify by saying aye.
5 (Response of "Aye.")
6 Opposed nay.
7 (Response of "Nay.")
8 The amendment is lost.
9 On the bill. The Secretary will
10 read the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT KUHL: Call the
14 roll.
15 (The Secretary called the roll. )
16 ACTING PRESIDENT KUHL: Announce
17 the results when tabulated.
18 Chair recognizes Senator Jones to
19 explain her vote.
20 SENATOR JONES: Yes. I'm going
21 to be voting no on this legislation, not because
22 I think it's wrong but I think there's an issue
23 of fairness here. When one county, my own, says
9279
1 they're ready to go, have the same equipment and
2 I do believe there is a cost to the state
3 involved in this, so I don't see that it's fair
4 that one county should be able to go ahead and
5 do this and another county left out.
6 It's just as costly for Monroe
7 County to have to transmit this material by hand
8 as it is for any other county. There may not be
9 the same large number, but we are processing
10 50,000 of these, and it's -- you know, it seems
11 to me that it's only fair that this county also
12 should be allowed the same thing.
13 ACTING PRESIDENT KUHL: Senator
14 Jones will be recorded in the negative.
15 Announce the results.
16 THE SECRETARY: Ayes 43, nays
17 one, Senator Jones in the negative.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 THE SECRETARY: Calendar Number
21 922, by Senator Cook, Senate Print 2964, an act
22 to amend the Tax Law, in relation to imposing a
23 sales and compensating use tax.
9280
1 SENATOR WALDON: Explanation,
2 please.
3 ACTING PRESIDENT WRIGHT:
4 Explanation has been requested by Senator
5 Waldon.
6 SENATOR SKELOS: Lay it aside.
7 ACTING PRESIDENT WRIGHT: Bill is
8 laid aside.
9 THE SECRETARY: Calendar Number
10 929, by Senator Kuhl, Senate Print 3533A, an act
11 to amend the Alcoholic Beverage Control Law and
12 the Tax Law, in relation to the shipment of
13 wine.
14 ACTING PRESIDENT WRIGHT:
15 Explanation has been called for by Senator
16 Onorato.
17 Senator Kuhl.
18 SENATOR KUHL: Yes, Mr.
19 President.
20 This is a bill that essentially
21 would allow for the out-of-state shipment of
22 wine to states that have a reciprocal piece of
23 legislation allowing for shipment of wine from
9281
1 those particular states. There is a limitation
2 that this sale can only be made to people who
3 are 21 years of age or older, and that there's
4 also a limitation on the number of cases that
5 can be shipped during any one year and that
6 limitation is to two cases of wine any one
7 year.
8 SENATOR ONORATO: Thank you.
9 ACTING PRESIDENT WRIGHT: Chair
10 recognizes Senator Gold.
11 SENATOR GOLD: Thank you very
12 much.
13 Will Senator Kuhl yield to one
14 question?
15 ACTING PRESIDENT WRIGHT: Senator
16 Kuhl, will you yield to one question?
17 SENATOR KUHL: Yes.
18 ACTING PRESIDENT WRIGHT: Senator
19 yields.
20 SENATOR GOLD: What committee
21 does this come out of, Senator?
22 SENATOR KUHL: I can't tell you.
23 SENATOR GOLD: Does it say on the
9282
1 bill?
2 SENATOR KUHL: Yes. It's
3 committed to the Committee on Taxation,
4 Investigations and Government Operations.
5 SENATOR GOLD: Thank you.
6 Senator Goodman yield to a question?
7 SENATOR GOODMAN: Yes.
8 ACTING PRESIDENT WRIGHT: Senator
9 Goodman, will you yield to a question for
10 Senator Gold?
11 Senator Gold.
12 SENATOR GOLD: Senator Goodman,
13 I'm sorry that I didn't see you earlier, but
14 yesterday we had a bill that took care of a
15 particular problem of a particular little area
16 where they wanted to make sales which varied
17 from the norm, so to speak. Today we have
18 Senator Kuhl's bill which wants to authorize
19 some limited sales.
20 Senator Solomon and I -- probably
21 you too, Senator Goodman, unless you haven't
22 been dealing with the issue through no venality
23 reason -- have been very much concerned because
9283
1 through many parts of this state and a lot of
2 them in New York City, there are Orthodox Jews;
3 there are Muslims, there are other people who
4 have, for religious reasons, decided that one
5 day of the week they will be closed. The
6 Orthodox Jewish community, as you very well
7 know, it's on Saturday and then a few times a
8 year, as one example Passover, they will have
9 the necessity because of the way those
10 communities operate, to want to be open on
11 Sunday so that the people that they service can
12 take care of their needs -- or at different
13 times; Passover is only one example -- and
14 Senator Solomon and some others have put in
15 legislation in your committee, Senator Goodman,
16 which would deal with that problem; and what my
17 question really is, is why don't we try, instead
18 of taking an individual approach to this one's
19 problem, whatever, do something of a more
20 general nature so that it's -- we take care of
21 everybody's problems.
22 I mean I know you, Senator
23 Goodman, and I know you are sensitive to the
9284
1 problem Senator Solomon raises. His bill is
2 2461 and I don't want to slow down Senator
3 Kuhl's bill because I respect Senator Kuhl and
4 his fight for his constituents. But, Senator
5 Goodman, I did recall requesting you to yield.
6 The question is really
7 rhetorical, but I believe that before the
8 session ends, your good offices would be very
9 useful in advancing Senator Solomon's bill,
10 2461. It is a real problem and, while some of
11 this happens in Senator Skelos' area, the police
12 and local officials are usually pretty good in
13 terms that, well, they sort of look the other
14 way because they know the needs of the
15 community, but the local police should not have
16 to do that and what happens very often, Senator,
17 is that once in a while a policeman decides that
18 he's going to enforce the law and the Liquor
19 Authority is faced with the situation where they
20 know the store owners are closed 52 days a year,
21 every sabbath, and yet -- what? And all other
22 Jewish holidays, thank you. And yet they are -
23 will not let them service their community.
9285
1 So, Senator Goodman, I'm going to
2 support this bill. Many of my colleagues and I
3 supported yesterday's bill, and I think it
4 really would be a travesty if we ended this
5 session without dealing with the needs of those
6 particular groups that would benefit from Senate
7 2461.
8 ACTING PRESIDENT WRIGHT: Senator
9 Onorato.
10 SENATOR ONORATO: Mr. President,
11 would Senator Kuhl yield to a question?
12 ACTING PRESIDENT WRIGHT: Senator
13 Kuhl, will you yield to a question?
14 SENATOR KUHL: Be happy to.
15 ACTING PRESIDENT WRIGHT: Senator
16 yields.
17 SENATOR ONORATO: The question
18 is, Senator, won't this bill actually hurt the
19 New York State wineries by allowing other states
20 like California which currently share about 60
21 percent of the New York State market of domestic
22 wines?
23 SENATOR KUHL: The people who
9286
1 have and are in support of this bill, Senator,
2 don't believe so, no. They are wineries and
3 there are about a hundred farm wineries now in
4 the state of New York who view this as an
5 opportunity to actually provide their product to
6 people who can't get it now. What you will find
7 is, if you go to other states, there are -- is a
8 limited selection of New York State wine
9 available.
10 What these wineries that I'm
11 talking to and hearing from tell me is that they
12 have a great number of people who come and visit
13 them during the summer, predominantly once our
14 tourism season opens, we have several of what we
15 call wine trails around the Finger Lakes now and
16 I know they do the same in the mid-Hudson, and
17 the Long Island wine industry is flourishing
18 tremendously, and what happens is these people
19 come in and they visit and then they go home,
20 whether it's Pennsylvania or Vermont or Texas or
21 wherever it is, and they say, Gee, would you
22 send me some wine, and the winery has to respond
23 that they cannot do that; it's a violation of
9287
1 law. They cannot do that, so they view that as
2 an opportunity, an additional market for them
3 that's currently not available to them now.
4 They think that, if people are
5 going to buy, say, California wine that they're
6 already going to do that, but these people, who
7 are going to buy California wine will go to the
8 liquor stores in New York City where they can
9 get a competitive price, probably cheaper than
10 the winery, they can get it at Jaffe's or some
11 place like that in New York, and get it cheaper
12 than they can at the wineries themselves, and
13 they buy it when they buy it at the winery
14 they're buying at a retail price not marked down
15 at all, plus they'll have to pay a shipping
16 cost, so they're really not competing with a
17 winery's product except where it's not available
18 and people just don't go out in the wine
19 industry.
20 I don't know how much you're
21 familiar with people who consume wine, but most
22 of them don't just arbitrarily order a wine
23 without knowing what it's like, and so if
9288
1 they've had experience with it, they like it,
2 and they want to continue it and they've had
3 experience with it and they want to continue,
4 that this actually provides an additional market
5 for our wineries.
6 SENATOR ONORATO: Will -
7 Senator, will you continue to yield?
8 ACTING PRESIDENT WRIGHT:
9 Senator, will you continue to yield?
10 SENATOR KUHL: Yes, certainly.
11 SENATOR ONORATO: Is there
12 anything in this bill which would prevent under
13 age people from obtaining this wine through the
14 mail system?
15 SENATOR KUHL: It specifically
16 says it can only be shipped to people who are 21
17 years of age or over and the process is there
18 has to be a means of showing identification at
19 the receipt end of it, so it's shipped by
20 shipper; it requires a person receiving it
21 showing proof of identification of their ages.
22 SENATOR ONORATO: Thank you. On
23 the bill.
9289
1 ACTING PRESIDENT WRIGHT: Senator
2 Onorato, on the bill.
3 SENATOR ONORATO: Mr. President,
4 I have a great deal of concern about this
5 particular bill, not that I'm not willing to
6 help the New York State winery, but I don't
7 think this bill is going to help our New York
8 State wine growers because of the fact that
9 California is the largest producer and seller of
10 wines in this state, and they've done it not
11 because they have so much of a superior product
12 than New York State.
13 The reason that they have the
14 market for it is because of their tremendous
15 amount of advertising, and I'll give you an
16 example. About 10 or 15 years ago we had this
17 little fellow on the airwaves telling you, with
18 a little white suit, have a little wine on the
19 rocks, under the rocks, and he did appear to be
20 the most romantic man in the world surrounded by
21 beautiful women. This wine was imported from
22 Italy, and it happened to be one of the worst
23 products around, but it became the number one
9290
1 seller in the United States only because of the
2 fact that it had a tremendous amount of adver
3 tisement, and I think that this would be the way
4 to help New York State wine growers is by
5 assisting them in their advertisement of our
6 particular product, because I believe that this
7 bill will actually hurt New York State in the
8 loss of a tremendous amount of taxes and perhaps
9 the loss of jobs in our package stores that are
10 currently hurting from the loss of sales right
11 now, and I would really recommend a no vote on
12 this bill.
13 Thank you, Mr. President.
14 ACTING PRESIDENT WRIGHT: Read
15 the last section.
16 THE SECRETARY: Section 5. This
17 act shall take effect on the 120th day.
18 ACTING PRESIDENT WRIGHT: Call
19 the roll.
20 (The Secretary called the roll. )
21 ACTING PRESIDENT WRIGHT: Results.
22 THE SECRETARY: Those recorded in
23 the negative on Calendar Number 929 are Senators
9291
1 Abate, Onorato and Padavan. Ayes 52, nays 3.
2 ACTING PRESIDENT WRIGHT: The
3 bill is passed.
4 THE SECRETARY: Calendar Number
5 933, by Senator Nozzolio, Senate Print 3875B, an
6 act to amend the Tax Law, in relation to
7 extending the sales tax in the county of
8 Cayuga.
9 SENATOR PATERSON: Explanation.
10 ACTING PRESIDENT WRIGHT:
11 Explanation has been requested by Senator
12 Paterson.
13 Senator Nozzolio.
14 SENATOR NOZZOLIO: Mr. President,
15 my colleagues, this measure extends the sales
16 tax in the county of Cayuga an additional one
17 percent. The extension expires on August 31st,
18 1997 and also allows the city of Auburn to
19 preempt the allowed one percent as set forth in
20 paragraph -- excuse me, 1224 paragraph (a) of
21 the New York State Tax Law.
22 SENATOR JONES: Mr. President.
23 ACTING PRESIDENT WRIGHT: Senator
9292
1 Jones.
2 SENATOR JONES: Would the sponsor
3 yield to a question?
4 ACTING PRESIDENT WRIGHT:
5 Senator, would you yield to a question from
6 Senator Jones.
7 SENATOR NOZZOLIO: Yes, sir.
8 ACTING PRESIDENT WRIGHT: Senator
9 yields.
10 SENATOR JONES: But I -- again I
11 just want to state this has nothing to do with
12 you, Senator, or certainly your county, but I
13 just needed to get a couple things on record.
14 Could you just explain how the substance of your
15 bill, the details of it, were arrived at?
16 SENATOR NOZZOLIO: I don't -- Mr.
17 President, I don't understand the question.
18 SENATOR JONES: Let me rephrase
19 it.
20 The bill, you stated, it says an
21 amount in the county and what the county is
22 going to do. I just wondered how those details,
23 if you could explain how the details in the bill
9293
1 were arrived at. Were they yours -- I guess my
2 question is, did you decide or where did they
3 come from?
4 ACTING PRESIDENT WRIGHT: Senator
5 Nozzolio continue to yield?
6 SENATOR NOZZOLIO: Certainly.
7 ACTING PRESIDENT WRIGHT:
8 Senator?
9 SENATOR NOZZOLIO: Mr. President,
10 I'd be glad to try to answer Senator Jones'
11 question.
12 I -- it has been my philosophy,
13 Senator, that these types of local bills are
14 decided not here in Albany but in this case in
15 Auburn as the County Legislature sits in Auburn.
16 The City Council of Auburn met with the County
17 Legislature and worked out those details amongst
18 themselves. I look at this as a strictly home
19 rule request where it was not my role to get
20 involved in the merits of the decision.
21 The county asked for the
22 authority to raise their taxes. Matter of fact,
23 this is an extender. They raised it, I believe,
9294
1 two years ago. This simply extends that
2 authority, and it's really up to the local
3 governments, because I strongly believe in home
4 rule. I do not get involved in these decisions
5 relative to local government decision-making.
6 I hope that addresses the kinds
7 of matters that you're asking.
8 SENATOR JONES: All right. Thank
9 you, Senator.
10 ACTING PRESIDENT WRIGHT: Senator
11 Jones.
12 SENATOR JONES: Yes, it does. On
13 the bill.
14 ACTING PRESIDENT WRIGHT: Senator
15 Jones, on the bill.
16 SENATOR JONES: I appreciate
17 Senator Nozzolio explaining that. As many of
18 you know, I voted no on many of the sales tax
19 bills this year mostly because there seemed to
20 be some confusion as to whether or not our role
21 was actually imposing a tax or was, as Senator
22 Nozzolio just stated, merely to follow the
23 wishes through a home rule message of what the
9295
1 local community wanted.
2 I totally agree with Senator
3 Nozzolio that this is something that belongs at
4 the local level, that it's their decision, and
5 we really are only accepting what they send us
6 as they do on many other bills, a home rule
7 message. I think maybe even at some time in the
8 future, I know Senator Larkin mentioned that to
9 me that maybe we should be looking at this whole
10 decision process needs to belong to the local
11 government. Perhaps we ought to relook at what
12 our role is, if any, but I, as a result I will
13 vote for this one as well as all the rest of
14 them on the calendar today, and I look forward
15 to doing the same for my own county.
16 ACTING PRESIDENT WRIGHT: Read
17 the last section.
18 THE SECRETARY: Section 5. This
19 act shall take effect immediately.
20 ACTING PRESIDENT WRIGHT: Call
21 the roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 55.
9296
1 ACTING PRESIDENT WRIGHT: The
2 bill is passed.
3 Senator DeFrancisco.
4 SENATOR DeFRANCISCO: Would you
5 recognize Senator Libous.
6 ACTING PRESIDENT WRIGHT: Senator
7 Libous.
8 SENATOR LIBOUS: Thank you, Mr.
9 President.
10 Can I call an immediate meeting
11 of the Committee on Mental Health and
12 Developmental Disabilities in Room 332.
13 ACTING PRESIDENT WRIGHT: There
14 will be an immediate meeting of the Mental
15 Health and Developmental Disabilities Committee
16 in Room 332.
17 Senator Farley, why do you rise?
18 SENATOR FARLEY: I'd like to be
19 recorded in the negative on 225.
20 ACTING PRESIDENT WRIGHT: Without
21 objection, Senator Farley recorded in the
22 negative on Calendar Number 225.
23 Senator Hoffmann, why do you
9297
1 rise?
2 SENATOR HOFFMANN: Mr. President,
3 I request unanimous consent to be recorded in
4 the negative on Calendar Number 833.
5 ACTING PRESIDENT WRIGHT: Without
6 objection, Senator Hoffmann recorded in the
7 negative on Calendar 833.
8 Senator DeFrancisco.
9 SENATOR DeFRANCISCO: Please call
10 up Calendar Number 197.
11 THE SECRETARY: Calendar Number
12 197, by Senator Seward, Senate Print 2016A, an
13 act to amend the Tax Law, in relation to
14 extending the expiration of the provisions
15 authorizing the county of Tompkins.
16 ACTING PRESIDENT WRIGHT: Read
17 the last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT WRIGHT: Call
21 the roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 56.
9298
1 ACTING PRESIDENT WRIGHT: The
2 bill is passed.
3 Senator DeFrancisco.
4 SENATOR DeFRANCISCO: Would you
5 please go back to regular order on the
6 calendar.
7 THE SECRETARY: Calendar Number
8 940, by member of the Assembly Matusow, Assembly
9 Print 6345A, an act to amend the Alcoholic
10 Beverage Control Law, in relation to authorizing
11 farm winery licensees.
12 SENATOR GOLD: Hold on.
13 ACTING PRESIDENT WRIGHT: Read
14 the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect immediately.
17 ACTING PRESIDENT WRIGHT: Call
18 the roll.
19 (The Secretary called the roll. )
20 THE SECRETARY: Ayes 56.
21 ACTING PRESIDENT WRIGHT: The
22 bill is passed.
23 THE SECRETARY: Calendar Number
9299
1 982, by Senator Farley, Senate Print Number 26A,
2 an act to amend the Banking Law, in relation to
3 enabling mortgage brokers to make Federal
4 Housing Administration loans.
5 ACTING PRESIDENT WRIGHT: Read
6 the last section.
7 SENATOR PATERSON: Hold on a
8 minute. Explanation.
9 ACTING PRESIDENT WRIGHT:
10 Explanation has been requested by Senator Gold,
11 Senator Farley.
12 SENATOR FARLEY: Stachowski.
13 ACTING PRESIDENT WRIGHT: Senator
14 Stachowski requested it.
15 SENATOR FARLEY: He didn't lay
16 aside this bill at all. He's got a phone call
17 out there.
18 Let me just say that this is a
19 bill that the realtors are very interested in,
20 that New York State is one of the only two
21 states in the nation in which mortgage brokers
22 cannot originate an FHA loan and be FHA loan
23 correspondents.
9300
1 The problem here is a conflict
2 between the state and the FHA requirements. New
3 York does not allow a broker to make loans.
4 However, this conflict with the FHA requirement,
5 the brokers must close loans in their own name.
6 The FHA has been unwilling to revise its program
7 to accommodate New York State's law. Therefore,
8 brokers are basically not able to offer FH
9 products -- FHA products to their customers.
10 This bill in particular should
11 provide consumers with additional financial
12 options and enable consumers to benefit from the
13 advantages of an FHA loan. An FHA loan is
14 especially beneficial for first time buyers,
15 minorities, low income borrowers, and so forth.
16 The FHA loan usually has more flexible credit
17 standards and terms. They require a lower down
18 payment and they're more lenient in allowing
19 gifts to be used for down payment.
20 SENATOR TULLY: Very liberal.
21 SENATOR FARLEY: Well, this is a
22 bill that really helps promote first time
23 buyers, and so forth. It's one that brings us
9301
1 in conformity with the rest of the nation, and
2 so forth. I don't -- there's no known
3 opposition that I know of, but I offer the bill
4 to you, Senator Stachowski.
5 SENATOR STACHOWSKI: Explanation
6 satisfactory.
7 ACTING PRESIDENT WRIGHT: Thank
8 you, Senator.
9 Senator DiCarlo, why do you rise?
10 SENATOR DiCARLO: Mr. President,
11 I ask unanimous consent to be recorded in the
12 negative on Calendar 225.
13 ACTING PRESIDENT WRIGHT: Without
14 objection, the Senator is recorded in the
15 negative on Calendar 225.
16 On the bill, read the last
17 section.
18 THE SECRETARY: Section 2. This
19 act shall take effect on the 120th day.
20 ACTING PRESIDENT WRIGHT: Call
21 the roll.
22 (The Secretary called the roll. )
23 THE SECRETARY: Ayes 56.
9302
1 ACTING PRESIDENT WRIGHT: The
2 bill is passed.
3 THE SECRETARY: Calendar Number
4 987, by Senator Farley, Senate Print 4580A, an
5 act to amend the Banking Law and others, in
6 relation to limited liability investment
7 companies.
8 SENATOR STACHOWSKI:
9 Explanation.
10 ACTING PRESIDENT WRIGHT:
11 Explanation is requested by Senator Stachowski.
12 SENATOR FARLEY: Going to get
13 him.
14 This bill would allow investment
15 companies to form and operate themselves as
16 limited liability investment companies instead
17 of as corporations. This option would only
18 apply to those investment companies which do not
19 accept or maintain credit balances or deposits
20 in the United States, cannot engage in any
21 business activity in the United States except as
22 incident to the international and foreign
23 business operation and they conduct business in
9303
1 compliance with the Banking Law.
2 A limited liability investment
3 company would be subject to virtually all the
4 provisions of the Banking Law which currently
5 apply to corporate foreign investment
6 companies. It would also be subject to all the
7 requirements of the limited liability company
8 law. The Superintendent of Banks is provided
9 with express authority to make rules and
10 regulations to govern limited liability
11 investment companies.
12 Now, this bill would authorize
13 the limited liability company structure for
14 those Article 12 investment companies which are
15 -- serve as holding companies for foreign
16 banking operations.
17 Let me see if I can summarize
18 some of this quickly for you, because it's a
19 little mundane.
20 O.K. I'm trying to summarize
21 this. I've got more than you want to know.
22 These entities are currently subject to both
23 foreign and domestic tax liabilities. This
9304
1 essentially results in double taxation on
2 earnings. However, if the holding companies can
3 organize themselves as limited liability
4 companies, they will be taxed under federal law
5 as a partnership.
6 This would enable these New York
7 firms to credit the foreign tax against their
8 federal tax like any other partnership. In
9 other words, it puts our New York-based
10 companies -- gives them a little bit of an
11 advantage or equalization or level playing field
12 on the federal income tax.
13 ACTING PRESIDENT WRIGHT: Senator
14 Stachowski.
15 SENATOR STACHOWSKI: If Senator
16 Farley would yield to just one question?
17 ACTING PRESIDENT WRIGHT: Senator
18 Farley, will you yield? Senator yields.
19 SENATOR STACHOWSKI: In the case
20 of the current banking chairman, if one of these
21 companies would have to be regulated, he would
22 probably excuse himself seeing as he came from a
23 company of this nature?
9305
1 SENATOR FARLEY: The current
2 banking chairman would excuse himself?
3 SENATOR STACHOWSKI:
4 Superintendent, excuse me, the current Banking
5 Superintendent, if he had to make a decision as
6 you stated earlier, he would be in charge of
7 overseeing this.
8 SENATOR FARLEY: Yes, he would.
9 SENATOR STACHOWSKI: So then who
10 would be in charge?
11 SENATOR FARLEY: The acting
12 deputy.
13 SENATOR STACHOWSKI: That was the
14 question.
15 SENATOR FARLEY: The acting
16 deputy. Very good question.
17 ACTING PRESIDENT WRIGHT: Senator
18 Solomon.
19 SENATOR SOLOMON: Mr. President,
20 would Senator Farley yield?
21 ACTING PRESIDENT WRIGHT: Senator
22 Farley, will you yield?
23 SENATOR FARLEY: Yes.
9306
1 ACTING PRESIDENT WRIGHT: Senator
2 yields.
3 SENATOR SOLOMON: Senator Farley,
4 in view of the fact that this has an impact on
5 the tax structure, your memorandum has fiscal -
6 SENATOR FARLEY: No, it does
7 not. It has no effect on our tax structure,
8 ours.
9 SENATOR SOLOMON: Well, let me
10 finish the question. The memorandum has fiscal
11 impact as minimal, and I'm trying to find out
12 what this "minimal" means in terms of our tax
13 structure if it has minimal impact as stated in
14 the memorandum.
15 SENATOR FARLEY: The formation -
16 this formation at most will only have a minimal
17 impact on New York's tax revenues. In reality,
18 it may prove to have a beneficial impact. The
19 type of entities affected by this bill are
20 basically holding companies for foreign banking
21 operations. As such, they do not have New York
22 source income. Therefore, they generally pay
23 only the minimum corporate franchise tax of
9307
1 $325.
2 It should be noted that there are
3 currently only three investment companies in
4 this state which are eligible for this and only
5 one of these even appears to be interested in
6 pursuing this option. The loss of the minimal,
7 that's 300 bucks, amount of revenue would be
8 partially offset by any application filing fees
9 that we required under our law.
10 In addition, the potential
11 reduction in federal taxes may result in
12 increased distribution to members which could
13 result in potential revenue increases to our
14 state income taxes. So I think it's a net
15 positive.
16 ACTING PRESIDENT WRIGHT: Senator
17 Solomon.
18 SENATOR SOLOMON: Well, Senator,
19 what you just said was more than a mouthful.
20 Someone as simple as -- from my simple area that
21 I come from.
22 SENATOR FARLEY: There's nothing
23 simple about you, Senator Solomon, I'm well
9308
1 aware of that.
2 SENATOR SOLOMON: O.K. Senator,
3 if I may, in terms of what I thought I heard you
4 just say is that they would now pay the
5 alternative minimum tax, corporate tax, and I'm
6 just curious if you could tell me what this one
7 company that shows particular interest in this
8 legislation currently pays.
9 SENATOR FARLEY: Now, they would
10 be taxed as a partnership so that it would be
11 taxed -- their personal income will be taxed at
12 the rate of what is it, 8.75, whatever our
13 maximum is. Those guys are usually at the
14 maximum.
15 SENATOR SOLOMON: It's 7-point -
16 SENATOR FARLEY: They'll be taxed
17 as a partnership now and so, therefore, their
18 personal income tax will be taxed. They'll be
19 taxed through their personal income tax.
20 SENATOR SOLOMON: What do they
21 currently pay, to the best of your knowledge?
22 SENATOR FARLEY: $325.
23 SENATOR SOLOMON: That's what
9309
1 they pay now, or that's what they would pay
2 after the passage of this bill.
3 SENATOR FARLEY: That's what they
4 pay now.
5 SENATOR SOLOMON: O.K. That's
6 what's confusing. Thank you.
7 ACTING PRESIDENT WRIGHT: Read
8 the last section.
9 THE SECRETARY: Section 14. This
10 act shall take effect immediately.
11 ACTING PRESIDENT WRIGHT: Call
12 the roll.
13 (The Secretary called the roll. )
14 THE SECRETARY: Ayes 56.
15 ACTING PRESIDENT WRIGHT: The
16 bill is passed.
17 Senator DeFrancisco, that
18 completes the calendar. Would you prefer to
19 return to the bills that were laid aside?
20 SENATOR DeFRANCISCO: Would you
21 please take up Calendar Number 241?
22 ACTING PRESIDENT WRIGHT: Excuse
23 me, Senator. May we recognize Senator Espada?
9310
1 SENATOR DeFRANCISCO: Yes, you
2 may.
3 ACTING PRESIDENT WRIGHT: Chair
4 recognizes Senator Espada on a resolution.
5 SENATOR ESPADA: Thank you, Mr.
6 President.
7 Certainly want to thank the
8 entire leadership of this house for the
9 opportunity to speak on the resolution that has
10 passed this house earlier. It has to do with
11 the All Stars Talent Network who are seated up
12 in our gallery. We certainly welcome them.
13 They are representatives of one
14 of the best and most successful anti-violence
15 programs that this nation has to offer. They
16 take anger, frustration, stress from young
17 people in our inner city communities and turn it
18 upside down on its ugly head and give it a
19 beautiful shining face. They performed 500
20 shows in 11 years throughout this nation with no
21 funding from governmental sources, solely
22 supported by contributions of people in our
23 community.
9311
1 And so we take this opportunity
2 to congratulate them, to commend them and to
3 point out that the old African adage that it
4 takes an entire village to raise a child is most
5 apropos and they're living proof that it can
6 happen, and we certainly congratulate you for
7 all your efforts.
8 Thank you, Mr. President.
9 ACTING PRESIDENT WRIGHT: Thank
10 you, Senator Espada. You will note that the
11 resolution was previously passed. We welcome
12 all of these young individuals to the Senate
13 chambers today and our opportunity to recognize
14 and congratulate them on their efforts.
15 Thank you very much and enjoy
16 your day in the Capitol.
17 (Applause)
18 Senator DiCarlo.
19 SENATOR DiCARLO: Mr. President,
20 I would ask unanimous consent to be recorded in
21 the negative on Calendar 128.
22 ACTING PRESIDENT WRIGHT: Without
23 objection, Senator DiCarlo will be recorded in
9312
1 the negative on Calendar Number 128.
2 Senator Maziarz.
3 SENATOR MAZIARZ: Mr. President,
4 with unanimous consent, I'd like to be recorded
5 in the negative on Calendar 225 and 933.
6 ACTING PRESIDENT WRIGHT: Without
7 objection, Senator Maziarz is recorded in the
8 negative on Calendar -- excuse me. There were
9 two numbers, Senator.
10 SENATOR MAZIARZ: 225 and 933.
11 ACTING PRESIDENT WRIGHT: 133?
12 SENATOR MAZIARZ: 933.
13 ACTING PRESIDENT WRIGHT: Senator
14 DeFrancisco.
15 SENATOR DeFRANCISCO: I would
16 request unanimous consent to be recorded in the
17 negative on 228 and 125.
18 ACTING PRESIDENT WRIGHT: Without
19 objection, Senator DeFrancisco in the negative
20 on 228 and 125.
21 SENATOR DeFRANCISCO: Now, could
22 you call up Calendar 241.
23 ACTING PRESIDENT WRIGHT:
9313
1 Secretary will read.
2 THE SECRETARY: On page 7,
3 Calendar Number 241, by Senator Volker, Senate
4 Print 2445, an act to amend the Civil Practice
5 Law and Rules, in relation to limitations on
6 certain actions.
7 SENATOR PATERSON: Explanation.
8 ACTING PRESIDENT WRIGHT:
9 Explanation is requested by Senator Paterson.
10 Senator Volker.
11 SENATOR VOLKER: Senator
12 Paterson, you want me to explain?
13 Mr. President, this is a bill
14 that has been in the process of being worked on
15 for many, many years. In fact, there's several
16 members of this chamber who have introduced
17 similar legislation over the years and have been
18 in and reported out of my committee at one time
19 or another.
20 It is a -- in effect, a bill that
21 a number of professional groups have come
22 together on and agreed to, and that's the legis
23 lation that is presently before us.
9314
1 What it would provide is for a
2 change in the -- basically a change in the
3 statute of limitations for actions brought
4 against engineers, architects, surveyors or
5 construction contractors.
6 Presently, the -- there are two
7 statutes primarily involved. One, of course, is
8 the contract statute, statute of limitations
9 which is six years, and the negligence statute
10 or the tort statute which is three years after
11 the injury occurs or somebody becomes aware of
12 it.
13 What this bill would do is say
14 that, in an action for personal injury or
15 wrongful debt or property damage arising out of
16 a defect in design, planning, supervision or
17 construction, that the action against -- against
18 an engineer, architect, surveyor or contractor,
19 that the action must be brought within seven
20 years except if the action or the injury occurs
21 during the seventh year, then there is a
22 one-year extension.
23 Let me just say that that is not
9315
1 based on just conjecture. The -- the -- there
2 have been studies that have been done, actions
3 involving these kinds of claims, and the study
4 showed that about 85 percent of the claims that
5 arise in this area come in the first seven years
6 and then a small percentage occurs in the next
7 year because of those claims that were
8 discovered in that year, and that's how you get
9 the seven years and one additional year.
10 In addition to that, the bill
11 would require a certificate of merit in such
12 actions, and what this does is mirror the
13 present law, the malpractice law involving
14 doctors, dentists, I believe and podiatrists if
15 I'm not mistaken. So that's what this bill
16 basically does.
17 ACTING PRESIDENT WRIGHT:
18 Recognize Senator Paterson.
19 SENATOR PATERSON: Mr. President,
20 would Senator Volker yield for a couple
21 questions?
22 SENATOR VOLKER: Why, certainly.
23 ACTING PRESIDENT WRIGHT: Senator
9316
1 Volker, would you yield? Senator yields.
2 SENATOR PATERSON: Senator, there
3 are a number of issues that are raised by this
4 type of legislation. The initial one would be
5 the definition of a statute of repose as
6 compared to the statute of limitations.
7 In the statute of repose, what
8 we're really doing is setting a time period by
9 which we will allow for suits to be brought and
10 that period being seven years, whereas the
11 regular statute of limitations in tort
12 liability, with which we're more familiar, that
13 the clock starts running at the point of
14 injury.
15 So suppose we have an incident
16 where we have designed a building and certain
17 parts of the building are not used for a period
18 of time, because let's say they've been vacant
19 and haven't been sold, and at the point that
20 this area starts to be rented out now we start
21 to see where the defect is, the negligence or
22 even malfeasance of duty on the part of the
23 architect or the engineer.
9317
1 What I'm hoping is that I've
2 cited you an example where there is a wrongdoing
3 but there is no real way to measure it because
4 the statute of limitations has expired before
5 not only the injury is actually occurring but
6 before even the incident has taken place.
7 SENATOR VOLKER: Senator, let me
8 just say that, in accordance even with this
9 statute -- hold on a second.
10 ACTING PRESIDENT WRIGHT: Excuse
11 me a second.
12 Senator DeFrancisco.
13 SENATOR DeFRANCISCO: There will
14 be an immediate meeting of the Finance Committee
15 in the Capitol, Room 332; immediate meeting of
16 the Finance Committee, Room 332.
17 ACTING PRESIDENT WRIGHT:
18 Immediate meeting of the Finance Committee in
19 Room 332.
20 Senator Volker.
21 SENATOR VOLKER: Yeah. The
22 situation that you talk about, Senator, which
23 there's an old saying about -- well, there's a
9318
1 couple of old sayings. One talks about tough
2 situations in the law. Would probably be an
3 interesting situation should this eventually, as
4 it will by the way, this will eventually become
5 law. I think the liability issue is such a
6 powerful issue that the cost of construction in
7 the building trades is going to get so out of
8 hand in the next few years that I would predict
9 to you that a statute similar to this is going
10 to become law within a few years. Trial lawyers
11 and so forth aside, it's going to happen. I
12 don't think there's any question the country is
13 headed in that direction, but I think the
14 incidents or the problem that you describe is
15 one that probably will be litigated should this
16 legislation pass as to whether it would be
17 covered under -- under the so-called statute of
18 repose or statute of limitations.
19 I think the issue here is that
20 you have to have some sort of finality on these
21 cases and that waiting 20 to 30 to 40 years and
22 still being able to be sued in these matters
23 does not serve in the long term a public purpose
9319
1 and, very honestly, it may serve a purpose for
2 certain individuals but insurance rates which
3 are based on probabilities have just kicked the
4 costs almost out of control, and I think the
5 answer, Senator, is that that kind of situation,
6 I suppose, could occur and, as I say, it
7 probably might be a situation where somebody
8 could attempt to challenge the statute, but I
9 think the possibility of such a thing, if you
10 know the way modern designs are done,
11 inspections and all the rest of the things that
12 we deal with in our society today, you might
13 have an action against somebody else rather than
14 the building designer for not detecting it, in
15 any case, so I think the answer to that is that
16 it probably wouldn't -- probably wouldn't
17 apply.
18 SENATOR PATERSON: Mr.
19 President.
20 ACTING PRESIDENT WRIGHT: Senator
21 Paterson.
22 SENATOR PATERSON: Through you,
23 you said earlier that a number of our other
9320
1 colleagues have looked at this legislation.
2 Were they able to document that it is
3 unaffordable for architects and engineers and
4 the like, to be engaging in the construction of
5 buildings right now? I know what you said
6 before about suits arising 20 and 30 years
7 later, but there is kind of an expectation that,
8 when a building is erected, that it's going to
9 last for a number of years.
10 SENATOR VOLKER: I'm sorry,
11 Senator, I guess I was -- I missed what you
12 said, I'm sorry.
13 SENATOR PATERSON: I'm sorry.
14 ACTING PRESIDENT WRIGHT: Senator
15 Paterson, if you would repeat the question for
16 Senator Volker, please.
17 SENATOR VOLKER: I didn't hear
18 your question.
19 SENATOR PATERSON: Let me repeat
20 the question for you, Senator.
21 I'm asking if the architects and
22 engineers have documented that there has been
23 such an increase in their insurance premiums
9321
1 that they would need special protection at this
2 point as the doctors raised about ten years ago
3 based on the fact that they are -- it's
4 unaffordable for them to engage in their work?
5 SENATOR VOLKER: Senator, I don't
6 think it's necessarily unaffordable for them to
7 engage in their work, but what the problem is
8 that these people are so necessary to the kinds
9 of things that are done here, that it has
10 dramatically raised the cost of the architects
11 and engineers, and so forth, handling these
12 kinds of things and, as a result, what it does
13 is, although obviously you're going to have to
14 have these people because in many cases the law
15 mandates that you must have architects and
16 engineers to handle this sort of thing, the
17 problem is that it has dramatically, and I think
18 that has pretty clearly been shown over the last
19 few years and there's been -- certainly there's
20 been people that say well, if you really look at
21 it, 4- or 500 percent increase in insurance
22 rates is really not that enormous given the rate
23 increases in other areas; but the truth is that
9322
1 there has been a dramatic increase in the cost
2 of projects built into it because of the issue
3 of liability, and that, I think, is virtually
4 irrefutable.
5 I think there are people that
6 would say, Well, that's something that's come
7 over a period of years, and that's true. It's
8 come over a period of 10 to 15 years and the
9 last couple years, by the way, as we begin to
10 debate these issues of liability insurance
11 companies have not been raising their rates as
12 dramatically, although as one vice-president of
13 an insurance company told me, one of the ways in
14 which some of these issues are being resolved is
15 many companies are saying, We just won't cover
16 those kinds of things.
17 I mean, you take municipal
18 liability, a number of the companies have just
19 got out of the coverage because they say it's
20 just not worth it. So I think the answer is,
21 Senator, that -- and it's pretty well documented
22 not that these people, not that architects and
23 engineers are not going to be available. It's
9323
1 not even that issue of professional engineers,
2 it's an issue of the long-term cost to society
3 and the cost to every individual that this
4 liability issue is doing to all of the people of
5 the state of New York.
6 ACTING PRESIDENT WRIGHT: Senator
7 Paterson.
8 SENATOR PATERSON: I understand
9 the concern that we -- that the professions have
10 on this particular issue. What I'm saying is
11 that seven years is a very short time when
12 you're talking about such projects as erecting a
13 building, to actually know that the building has
14 been constructed without some major defect
15 arising from a malfeasance of duty or from some
16 negligence.
17 If Senator Volker would continue
18 to yield.
19 SENATOR VOLKER: Sure.
20 ACTING PRESIDENT WRIGHT: Senator
21 continues to yield.
22 SENATOR PATERSON: Senator, the
23 Legislature is calling for a certificate of
9324
1 merit enabling the plaintiff to bring an action
2 in court. In previous pieces of legislation,
3 the only time I can think of off the top of my
4 head, when we've had a certificate of merit are
5 in medical malpractice cases.
6 Here we have a number of
7 records. We have documentation; we have
8 specific facts that can be compared with the
9 present case to arrive -- to arrive at a
10 decision as to whether or not a court case is
11 merited. I don't know that we necessarily have
12 that in the construction area or in the
13 specialized profession of engineering that there
14 is really a way necessarily that another
15 profession, you feel, can come in and say yes,
16 based on this criteria, we can actually bring a
17 lawsuit, and since it's so rare that we actually
18 allow this to happen only in medical cases which
19 are highly documented and highly specialized and
20 which bring with it a great degree of detail
21 that can be traced and perused later by the
22 professionals, my question to you is whether or
23 not, or actually why would we want to seek this
9325
1 remedy in this legislation where we don't really
2 have it as a matter of purpose in our law in
3 other areas?
4 SENATOR VOLKER: Senator, you're
5 right about the certificate of merit being used
6 in medical malpractice cases and more dental
7 malpractice, I believe, and podiatrists, and so
8 forth, in that area. The reason that there is a
9 -- the reason we're fighting that, Senator, I
10 think the same sort of issue is involved here
11 and let me just say that, as the statute clearly
12 says, the fact that you can bring the action, it
13 doesn't say that, because you don't have the
14 certificate of merit, that you can't bring the
15 action, but in order to move forward and the
16 reason is because a number of these cases are
17 based on something happens and there is, in
18 effect, what many of the actions move forward in
19 is, Well, somebody had to be negligent here.
20 Somebody had to do something, and we just assume
21 that it's -- it's an architect or an engineer
22 and, at some point down the line, the attorney
23 for the -- as you and I know, the attorney is
9326
1 going to have to prove something and what we're
2 really doing here is in this certificate of
3 merit is saying that the attorney has to go up
4 front with some sort of professional evidence
5 that the people or the person, the individual
6 being sued, had something to do with the
7 potential negligence.
8 One of the reasons for that,
9 Senator, is because you know how lawsuits go as
10 well as I do, and that is you bring all sorts of
11 individuals into it, even though they may really
12 have a remote liability, and I think the concept
13 of this certificate of merit is to allow a
14 professional to make some sort -- to provide
15 some sort of judgment up front so that if the
16 action against engineers or -- or architects or
17 whatever does not really pertain to them, that
18 you can actually get them out of the suit early,
19 save the insurance companies the liability
20 claims and not have to really drag a company
21 through years of litigation and, in the end,
22 find out that they really had nothing to do with
23 it in the first place and that, if there was
9327
1 some negligence, it had to do with somebody else
2 or some other entity or whatever.
3 I think that is the intent here,
4 and I think the issue is certainly serious
5 enough because of the public nature of this and
6 I don't think the certificate of merit is
7 anything, it's really so -- so onerous since a
8 good -- any good person who is bringing such an
9 action is going to do something, basically bring
10 such a -- such evidence in eventually anyway,
11 but maybe not until the time of the trial.
12 ACTING PRESIDENT WRIGHT: Senator
13 Paterson.
14 SENATOR PATERSON: Thank you very
15 much, Senator Volker.
16 Mr. President, on the bill.
17 ACTING PRESIDENT WRIGHT: Senator
18 Paterson, on the bill.
19 SENATOR PATERSON: I understand
20 what Senator Volker is saying, but there was
21 still a very serious and tragic incident
22 happened in my office a couple of years ago and
23 one of the employees in the building was unable
9328
1 to work and is still unable to work, on Work
2 men's Compensation and, as a result of that
3 case, I remember suggesting to this individual
4 that because they couldn't really sue the state
5 on this issue, they had to find the manufacturer
6 or somebody that was responsible for that defect
7 and, in a sense, I was probably making a
8 suggestion that may really have been the reason
9 that the engineers and professionals have this
10 problem.
11 It was a suggestion that, in a
12 sense, you draw everybody into the lawsuit as
13 much as possible and what Senator Volker is
14 trying to do through this legislation is to
15 limit it.
16 I just think this bill has gone a
17 little bit too far. Seven years is a very short
18 period of time. There are some buildings that
19 you wouldn't even know what the defect is
20 because they haven't even rented the space out
21 in the first seven years, and I think that to
22 some degree what this legislation does is, it
23 really cuts off all of the potential suits and
9329
1 raises a very high standard for which the suit
2 can be commenced, and that is the accomplishment
3 of the certificate of merit, which is not as
4 easy as I think the sponsor suggests.
5 I understand that what is trying
6 to be accomplished may be a cap on recovery or
7 something, but there are, in my opinion, some
8 serious questions with this bill.
9 Thank you.
10 ACTING PRESIDENT WRIGHT: Chair
11 recognizes Senator Abate.
12 SENATOR ABATE: Would Senator
13 Volker yield to a question?
14 ACTING PRESIDENT WRIGHT: Senator
15 Volker, will you yield?
16 SENATOR VOLKER: Yes.
17 ACTING PRESIDENT WRIGHT: Senator
18 yields.
19 SENATOR ABATE: The questions I
20 asked were really trying to explore the merits
21 of this bill and to clarify the language of the
22 bill. I came to this chamber really undecided
23 about the language of the bill.
9330
1 You said earlier, Senator Volker,
2 that no other group gets protection such as
3 this, or someone else said that on the floor.
4 Is there any other legislation that provides
5 similar protection?
6 SENATOR VOLKER: You're talking
7 about certificate of merit. That's the same
8 thing. The certificate of merit is involved in
9 medical and dental malpractice.
10 ACTING PRESIDENT WRIGHT: Senator
11 Abate.
12 SENATOR VOLKER: Because one of
13 the ways, if I might just say it, and the issue
14 -- and I remember it because I was here. I've
15 been here long enough to remember a lot of
16 things, I guess, but I remember as that issue
17 developed, and the issue developed because of
18 some of these various -- these same reasons in
19 fact, the enormous costs and the fact that in
20 the long haul, you were going to have to, in a
21 trial, bring in this kind of proof, and one of
22 the reasons for bringing in the certificate of
23 merit and medical and dental malpractice was to
9331
1 cut down the numbers of defendants and the cost
2 and, in effect, to exclude some of the liability
3 companies that were dragged through some of
4 these suits maybe for eight or ten years and
5 then find out that they had very little or
6 nothing to do with the actual negligence action,
7 and I think what you're trying to do here is -
8 and the certificate of merit, quite clearly, in
9 the long run could help some of the so-called
10 plaintiffs because they had found out very early
11 where they stand on a number of these kinds of
12 issues.
13 ACTING PRESIDENT WRIGHT: Senator
14 Abate.
15 SENATOR ABATE: Maybe I'm missing
16 a point, but I thought this legislation is not
17 mandating a certificate of merit but mandating a
18 statute of repose -
19 SENATOR VOLKER: That's right.
20 Yes.
21 SENATOR ABATE: -- which would,
22 in effect, act as a statute of limitation -
23 SENATOR VOLKER: That's true.
9332
1 SENATOR ABATE: -- in certain
2 cases prevent an injured tenant or consumer from
3 bringing suit.
4 SENATOR VOLKER: Correct.
5 SENATOR ABATE: So I see -- and
6 that's how I'm troubled. I'm sympathetic
7 towards many of these architects and engineers
8 that have to stay in business, and their concern
9 is 30, 40 years down the road, a design of their
10 building, why are they held liable, and the cost
11 of their doing business is prohibitive because
12 of that.
13 But I guess my problem is -- I'm
14 further concerned -- is there no distinction
15 between negligence and gross negligence here?
16 So if, in fact, nine years have elapsed, and
17 under this current legislation I am a consumer,
18 whether I'm a tenant of the building, either a
19 commercial tenant or a residential tenant, and
20 in fact the design -- or the architect was
21 engaged in gross negligence. We're not even
22 talking about simple negligence. I would, as a
23 consumer, be foreclosed from entering into any
9333
1 lawsuits.
2 So while I support the concept,
3 I'm very concerned on how broad this legislation
4 is, so I'm very troubled by it and I'm trying to
5 work out where I should be.
6 Would you consider down the road
7 separating out gross negligence from this?
8 SENATOR VOLKER: I don't know how
9 you would do that, Senator. Let me just say is
10 that this is -- this is -- you are smack up
11 against the problem that is always there with
12 statute of limitations.
13 Remember, in the criminal area,
14 we only exclude one crime from the statute of
15 limitations and that's murder. In many other
16 very serious crimes, we have a statute; and if
17 you can uncover evidence after seven years, you
18 can't bring an action against a person, for
19 instance, for some very serious crimes.
20 The truth is the same in other
21 civil statutes of limitations; for instance,
22 contracts, which a lot of these cases actually
23 revolve around contract which is a six-year
9334
1 statute of limitations, keep in mind because
2 contracts -- when they sue, they not only sue
3 for negligence, they also sue on the contract,
4 generally speaking, one way or another, except
5 that they may be barred because of the six-year
6 statute of limitations. So you -
7 My counsel just points out to me,
8 if you allow gross negligence or allow that to
9 be an exclusion on the statute, you might just
10 as well not have the statute because everyone is
11 going to allege gross negligence; and then the
12 issue at the trial obviously would be, "What is
13 the difference between regular negligence and
14 gross negligence?" and you won't really have
15 done anything.
16 So I think if you are going to
17 develop a statute of limitations or statute of
18 repose, whatever you want to call it, you have
19 to set some limitation and the way they arrive
20 at that limitation, as I said, was a study of
21 the cases, and about 85 percent of the cases
22 involving lawsuits against architects,
23 engineers, and professional contractors, and so
9335
1 forth, involve the first seven years of the
2 building's construction and, Senator, I would
3 say to you, as time has gone on, the observation
4 that is done, the inspections that are done on
5 buildings and on bridges, and so forth, has
6 become so much more sophisticated that the
7 possibility of something totally escaping for
8 more than seven years is extremely remote, and
9 it seems to me that we have to set some sort of
10 determination for the common good, and I think
11 that's what this is about.
12 This is not about architects' and
13 engineers' fees as such. This is about what the
14 public is paying because of the broad liability,
15 and it is a public issue, obviously, of epic
16 proportions. It's being debated in Washington
17 right now, and -- as I think we all know, and
18 it's -- so that's what this is really about.
19 ACTING PRESIDENT WRIGHT: Senator
20 Abate. Do you continue to yield, Senator
21 Volker?
22 SENATOR VOLKER: Sure.
23 ACTING PRESIDENT WRIGHT: Senator
9336
1 yields.
2 SENATOR ABATE: Clearly, one of
3 the issues is the consumer, the smaller person
4 on this ladder who may be foreclosed from engag
5 ing a lawsuit, but there's another constituent,
6 the individual that owns the building, the real
7 estate owner. What positions have they taken on
8 this bill?
9 SENATOR VOLKER: Frankly,
10 Senator, we haven't heard from them.
11 Keep in mind that the owner of
12 the building is in a contract situation, though,
13 so that there is already a six-year statute of
14 limitations in that area, so I guess the answer
15 is that this bill, as such, wouldn't have a
16 major impact on them, except somebody could
17 argue -- I suppose someone could argue it would
18 actually extend the statute of limitations from
19 six to seven years if you really followed this
20 through and technically another year after
21 that. Of course, if it was strictly a
22 contractual kind of thing, it would be barred by
23 six years but, if there was something that
9337
1 occurred in that seventh year, certainly that
2 owner of that building would try somehow to get
3 covered under this statute, because obviously it
4 would be advantageous to him.
5 SENATOR ABATE: No further
6 questions.
7 ACTING PRESIDENT WRIGHT: Senator
8 Solomon.
9 SENATOR SOLOMON: Mr. President.
10 If Senator Volker will yield?
11 ACTING PRESIDENT WRIGHT: Senator
12 Volker, will you yield?
13 SENATOR VOLKER: Yes.
14 ACTING PRESIDENT WRIGHT: Senator
15 yields.
16 SENATOR SOLOMON: Senator, do you
17 have any information at hand which indicates
18 what percentage of actions are commenced within
19 seven years -
20 SENATOR VOLKER: Yes.
21 SENATOR SOLOMON: -- for
22 architectural malpractice?
23 SENATOR VOLKER: I think that was
9338
1 the -- yeah, 87. If you add the extra year,
2 that is seven years and then the extra year, it
3 becomes between 85 and 90 percent. Now, 85
4 percent is the number that they used of actions
5 that are commenced within seven years and then
6 there is a -- there is a -- if you add the one
7 extra year, it then moves up another two or
8 three percent, so that you're actually talking
9 close to 90 percent of the actions would be
10 covered by the seven-year statute, plus the
11 additional year.
12 SENATOR SOLOMON: If the
13 additional year is caused by the certificate of
14 merit requirement?
15 SENATOR VOLKER: If the injury
16 occurs during the seventh year -
17 SENATOR SOLOMON: You have
18 another year.
19 SENATOR VOLKER: -- then you have
20 one more year.
21 SENATOR SOLOMON: From that date
22 of injury. Okay.
23 ACTING PRESIDENT WRIGHT: Senator
9339
1 Solomon.
2 SENATOR SOLOMON: If Senator
3 Volker will yield?
4 SENATOR VOLKER: Sure.
5 ACTING PRESIDENT WRIGHT: Senator
6 Volker, will you yield to one further question?
7 SENATOR VOLKER: Sure.
8 ACTING PRESIDENT WRIGHT: Senator
9 yields.
10 SENATOR SOLOMON: I'm inclined to
11 support this bill. The thing that worries me
12 more than anything else is the certificate of
13 merit. If you could tell me why there was a
14 need or they felt that there was a need for the
15 certificate of merit in this case, I would
16 appreciate that.
17 SENATOR VOLKER: Well, I think
18 the certificate of merit in the medical
19 malpractice legislation -- by the way, there are
20 certain provisions in the bill that would allow
21 for some latitude in providing a certificate of
22 merit, if it's unable to be obtained or
23 whatever. If you look at the bill, you will see
9340
1 that there's some limitations there so that you
2 can't have somebody that's -- for one reason or
3 another, it's not possible or unable to do it,
4 it wouldn't stop and exclude somebody from being
5 sued, but the reason for it is, very honestly,
6 the same reason as in medical and dental mal
7 practice and that is that you have a situation
8 here where you have, very often, multiple
9 defendants involved, and very often the
10 professional architect or engineer is not even
11 -- may not even be the source of any kind of
12 negligence at all, and the reason for the
13 certificate of merit is to determine early,
14 based on some real scientific and based on some
15 professional information, whether that
16 individual or those individuals actually have
17 any place in the lawsuit, and it not only
18 obviously makes it easier for the professional
19 engineers and architects, and so forth, but it
20 allows the insurance companies that are
21 obviously involved with those people to exit
22 early from the suit if it's possible.
23 The other part of the thing is,
9341
1 as you well know, if it turns out that there
2 isn't any real evidence of their potential
3 involvement, the people who are bringing the
4 suit are going to have that evidence anyway as
5 part of the certificate of merit.
6 ACTING PRESIDENT WRIGHT: Senator
7 Dollinger.
8 SENATOR DOLLINGER: Will the
9 sponsor yield to just a couple of questions?
10 ACTING PRESIDENT WRIGHT: Senator
11 Volker, will you yield?
12 SENATOR VOLKER: Sure.
13 ACTING PRESIDENT WRIGHT: Senator
14 yields.
15 SENATOR DOLLINGER: Senator, my
16 concern with this bill is the possibility of
17 contractual indemnification from the owner of
18 the building -- or to the owner of the building
19 from the architect. I note in your bill on page
20 2, it says that "No action for recovery of
21 damages or injury to the person or for wrongful
22 death or for damaged property nor any action for
23 contribution or indemnity for damages sustained
9342
1 on account of the injury."
2 My question is this: Does that
3 language void an action brought by the owner
4 against the architect on the basis of a
5 contractual obligation to indemnify which would
6 last more than six years? For example, as you
7 probably know, Senator, when I hire Senator
8 Abate to be my architect and I'm designing a
9 tower, we agree that as part of her
10 responsibilities to me she will indemnify me in
11 the event of Senator Onorato falling through the
12 stairwell, and that could happen 20 years from
13 now, but the contractual obligation to indemnify
14 me still exists.
15 He brings an action against me as
16 the owner. I say, "You're right. I probably
17 should have maintained it," but I also claim it
18 is a flaw on the part of Senator Abate's design
19 and she has posted a policy with me that's good
20 20 years into the future.
21 My question is this: Does my
22 ability to implead or to ask for contribution or
23 indemnification from the architect, which is a
9343
1 contractual obligation, is that voided by this
2 statute?
3 SENATOR VOLKER: No. First of
4 all, I represent Senator Onorato, but on page
5 2 -
6 SENATOR DOLLINGER: We won't pay
7 those exorbitant fees, Senator.
8 SENATOR VOLKER: On page 2 -- now
9 that we're getting paid, at least we're getting
10 something for this.
11 Page 2, Section 3, "The
12 limitations prescribed by this section shall not
13 apply to actions brought: (1) in contractual or
14 professional privity with the engineer,
15 architect, surveyor," and so forth, and it goes
16 on in that section, and that's why that section
17 is there, so that just the scenario that you
18 just suggested would not occur if this bill
19 would become law.
20 SENATOR DOLLINGER: So the owners
21 of property can protect the eventual injured
22 user as well as their own liability by
23 contractual indemnification from the -
9344
1 SENATOR VOLKER: Exactly.
2 SENATOR DOLLINGER: Okay. I
3 think that's critical, at least from my
4 understanding, because that would both give the
5 owner the possibility of obtaining a longer term
6 coverage as well as providing additional
7 protection for the eventual user who might be
8 hurt.
9 My second question is -
10 ACTING PRESIDENT WRIGHT: Senator
11 Dollinger.
12 SENATOR DOLLINGER: I brought
13 this up in committee, and I just want -
14 ACTING PRESIDENT WRIGHT: Senator
15 Volker, do you continue to yield?
16 SENATOR VOLKER: Why, certainly.
17 ACTING PRESIDENT WRIGHT: Senator
18 yields.
19 SENATOR DOLLINGER: Thank you,
20 Mr. President.
21 SENATOR ONORATO: Before you go
22 on to the next question, do I get paid?
23 SENATOR VOLKER: Whichever one of
9345
1 us represents you, I'm sure you'll get paid.
2 ACTING PRESIDENT WRIGHT: Senator
3 Onorato, we resolved that question earlier.
4 Senator Volker.
5 SENATOR DOLLINGER: ... plaintiff,
6 Senator Volker. We found another one.
7 My concern with the certificate
8 of merit is, what happens -- and, again, if you
9 can just address this in the bill on the record,
10 perhaps even just for the purposes of
11 establishing some kind of statutory history.
12 What happens to the lawyer who gets the case and
13 says, "I need documents from the defendant, from
14 the punitive defendant, either from the
15 architect or from the owner in order to be able
16 to give them to my expert so that my expert will
17 render the certificate of merit opinion
18 necessary to bring the action?" Just, if you
19 could, describe for me under the bill how you
20 address that specific problem.
21 SENATOR VOLKER: That's why we
22 put it on page 3 -- and as my counsel points out
23 to me, it's also current law. But we added in
9346
1 -- and I think it's 3, "The attorney was unable
2 to obtain the consultation required in this
3 subdivision, because the attorney had made three
4 separate good faith attempts with three separate
5 physicians and as architects or professional
6 engineers."
7 In other words, we have a -- and
8 if you look at that whole section, it relates to
9 the need for the certificate of merit but allows
10 the attorney to have some way so that if he is
11 unable to obtain it, even though he attempts to,
12 that the attorney would not be barred from
13 continuing with the action.
14 SENATOR DOLLINGER: Just so I
15 understand that, Mr. President, if I can clarify
16 that with Senator Volker?
17 ACTING PRESIDENT WRIGHT: Senator
18 Volker, do you continue to yield?
19 SENATOR VOLKER: Certainly.
20 ACTING PRESIDENT WRIGHT: The
21 Senator yields.
22 SENATOR DOLLINGER: The scenario
23 that I just described; that is, I can't get from
9347
1 the defendant the documents and records
2 necessary to get my architect or engineer to
3 evaluate the work of Senator Abate, or whoever
4 the architect or engineer is, if I can show that
5 I made a good faith attempt to get the defendant
6 -- not just any other party, but the
7 defendant -- to give me the documents necessary
8 to file the -- prepare the certificate of merit,
9 under those circumstances, I would, in essence,
10 have a waiver from this provision to provide it
11 prior to the litigation and would have a
12 sufficient opportunity to get discovery from the
13 defendants in order to determine the merits of
14 going forward.
15 SENATOR VOLKER: Absolutely.
16 That's on page 4 of the bill, the last page of
17 the bill. That talks about the attorney makes a
18 claim under paragraph 3, and the attorney was
19 unable to obtain the required consultation with
20 the architect or professional engineer. The
21 court may, upon request of the defendant made
22 prior to compliance by the plaintiff through
23 provisions, and so forth, require the attorney
9348
1 to divulge to the court the names, and so forth,
2 refusing such consultation.
3 In other words, what the language
4 does in this bill is that if the attorney is un
5 able to comply with the certificate of merit be
6 cause of either the -- being unable to get the
7 professionals involved to give him the informa
8 tion he needs or he can't deal with the defense
9 attorney -- or the -- I mean the -- yes, the
10 defense attorney, then we have a way in this
11 bill that you would not exclude the possibility
12 of the action because you couldn't get the
13 certificate of merit.
14 SENATOR DOLLINGER: Mr.
15 President, just on the bill.
16 ACTING PRESIDENT WRIGHT: Senator
17 Dollinger.
18 SENATOR DOLLINGER: Those are
19 really the two major concerns I have with this
20 bill. I appreciate Senator Volker's answer. It
21 seems to me that if you got contractual
22 indemnity that this bill does not affect the
23 right of an owner to obtain contractual
9349
1 indemnity for a thousand years, if necessary.
2 That principle will protect the eventual user,
3 will also provide protection from the owner and,
4 as I hear Senator Volker explaining the
5 certificate of merit, we have also provided that
6 in the event he doesn't get documents from a
7 reluctant defendant or a noncooperative
8 defendant, be it architect or owner, the
9 plaintiff will nonetheless have the ability to
10 file the action without the certificate of merit
11 and then have a period of time in which, based
12 on court disclosure, disclosure of documents and
13 disclosure of evidence, that the plaintiff will
14 have an opportunity to then obtain the
15 certificate, file it with the court and then the
16 action can go forward.
17 I think that that kind of
18 pretrial, extensive discovery up front is, at
19 least from my point of view, good legal practice
20 and that lawyers ought to be evaluating cases
21 trying to get as much information as possible
22 prior to the case, both for their own good
23 because they don't want to put a lot of fees
9350
1 into a contingent fee case that may not produce
2 a result, but this seems to be a balancing
3 between the two of those.
4 I have to admit this is a close
5 question for me. I don't like the concept of
6 cutting off people's ability to recover but,
7 frankly, under the circumstances, this seems to
8 me to be a reasoned step. It's a close call for
9 me. I'm probably going to vote in favor of it.
10 ACTING PRESIDENT WRIGHT: Read
11 the last section.
12 THE SECRETARY: Section 6. This
13 act shall take effect on the first day of
14 January.
15 ACTING PRESIDENT WRIGHT: Call
16 the roll.
17 (The Secretary called the roll.)
18 ACTING PRESIDENT WRIGHT:
19 Results.
20 THE SECRETARY: Those recorded in
21 the negative on Calendar 241 are Senators Abate,
22 Connor, Paterson, Smith and Waldon. Ayes 53,
23 nays 5.
9351
1 ACTING PRESIDENT WRIGHT: The
2 bill is passed.
3 Senator Kuhl, what's your
4 pleasure?
5 SENATOR KUHL: Yes, Mr.
6 President. Would you call up Calendar 702,
7 please.
8 ACTING PRESIDENT WRIGHT:
9 Calendar 702. Secretary will read.
10 SENATOR PATERSON: Mr. President.
11 ACTING PRESIDENT WRIGHT: Senator
12 Paterson.
13 SENATOR PATERSON: This bill was
14 laid aside by Senator Gold. Can we hold it just
15 a moment? He is in the Finance Committee.
16 ACTING PRESIDENT WRIGHT: Senator
17 Kuhl.
18 SENATOR KUHL: Mr. President.
19 Would you lay that bill aside awaiting Senator
20 Gold's returning to the chamber, and could you
21 call up Calendar Number 922, please.
22 ACTING PRESIDENT WRIGHT: Okay.
23 The bill is laid aside.
9352
1 Calendar 922. The Secretary will
2 read.
3 THE SECRETARY: On page 27,
4 Calendar Number 922, by Senator Cook, Senate
5 Print 2964, an act to amend the Tax Law, in
6 relation to imposing a sales and compensating
7 use tax.
8 ACTING PRESIDENT WRIGHT: Senator
9 Waldon has requested an explanation.
10 Senator Cook.
11 SENATOR COOK: Mr. President.
12 This bill simply provides that items sold within
13 prison commissaries would be sales taxable as
14 are items sold any place else in the state.
15 SENATOR WALDON: Would the
16 Senator yield to a question or two?
17 SENATOR COOK: Sure.
18 ACTING PRESIDENT WRIGHT: Senator
19 Cook will yield.
20 SENATOR WALDON: Senator, are you
21 saying that there is no sales tax now on these
22 items?
23 SENATOR COOK: That's correct.
9353
1 SENATOR WALDON: And if I may
2 continue, Mr. President?
3 ACTING PRESIDENT WRIGHT: You
4 may.
5 SENATOR WALDON: Are you also
6 saying that the cost of each item would go up by
7 the amount of the tax per item?
8 SENATOR COOK: Yes, Senator.
9 SENATOR WALDON: I don't want to
10 -- if I may continue, Mr. President?
11 ACTING PRESIDENT WRIGHT: You
12 may, Senator Waldon.
13 SENATOR WALDON: I don't want to
14 appear inane, but do you have any idea -- and
15 ignorant. Do you have any idea how much each
16 prisoner makes per day while in correctional
17 facilities of the State of New York?
18 SENATOR COOK: Mr. President, I'm
19 not sure that's relevant. I don't think we
20 charge sales tax in stores depending upon what
21 the income is of the people who are buying the
22 items. I think it's taxable because it's
23 taxable.
9354
1 SENATOR WALDON: That wasn't -
2 if I may continue, Mr. President? That wasn't
3 the question.
4 ACTING PRESIDENT WRIGHT: Senator
5 Waldon.
6 SENATOR COOK: I guess, Mr.
7 President, my question is I don't know what the
8 relevance of the question is to the issue at
9 hand.
10 SENATOR WALDON: Are you saying
11 -- Mr. President, if I may continue?
12 ACTING PRESIDENT WRIGHT:
13 Proceed, Senator Waldon.
14 SENATOR WALDON: Are you saying,
15 Senator, that despite your perception of the
16 relevance of the question that I've asked, you
17 refuse to ask it because I asked it?
18 SENATOR COOK: Well, no, Senator,
19 no. The point is that I don't know. I suppose
20 it varies on what the particular prisoner does.
21 I assume there are some prisoners who work
22 rather regularly, for example, in the kitchen
23 and may receive income on an ongoing basis or
9355
1 maybe other people do maintenance jobs and don't
2 work quite as many hours and their income
3 varies.
4 The point is that, if you are
5 buying something in a store, nobody in the store
6 asks you what your income is. They tell you
7 this is the price on the item, and this is the
8 sales tax on it. So I just don't understand the
9 relevance.
10 SENATOR WALDON: If I may
11 continue, Mr. President. Will the Senator
12 continue to yield?
13 ACTING PRESIDENT WRIGHT: Senator
14 Cook, do you continue to yield?
15 SENATOR COOK: Sure.
16 ACTING PRESIDENT WRIGHT: The
17 Senator yields. Senator Waldon.
18 SENATOR WALDON: The learned
19 Senator from Delaware County, can you tell us
20 how much this would increase the coffers of the
21 various counties in which these -
22 SENATOR COOK: Senator, I think
23 the number we have in total is -- I'm sorry.
9356
1 The State's share is estimated at $640,000.
2 Counties, for the most part, collect a slightly
3 smaller sales tax than does the state. So my
4 guess is that the gross amount of this tax
5 collected by both the state and the counties
6 would be probably a million dollars.
7 ACTING PRESIDENT WRIGHT: Senator
8 Waldon.
9 SENATOR WALDON: Thank you very
10 much, Mr. President.
11 Thank you, Senator.
12 ACTING PRESIDENT WRIGHT: There
13 is a local fiscal impact note at the desk.
14 Read the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect 30 days after it shall
17 have become a law.
18 ACTING PRESIDENT WRIGHT: Call
19 the roll.
20 (The Secretary called the roll.)
21 THE SECRETARY: Ayes -
22 SENATOR COOK: Mr. President, may
23 I explain my vote?
9357
1 ACTING PRESIDENT WRIGHT: Chair
2 recognizes Senator Cook to explain his vote.
3 SENATOR COOK: Mr. President.
4 With apologies to Senator Waldon, I do find I
5 have a local fiscal impact note. The local
6 impact is estimated at $480,000.
7 With that, I cast my vote in the
8 affirmative.
9 ACTING PRESIDENT WRIGHT: Senator
10 Cook is recorded in the affirmative.
11 Results.
12 THE SECRETARY: Ayes 56, nays 2,
13 Senators Espada and Waldon recorded in the
14 negative.
15 ACTING PRESIDENT WRIGHT: The
16 bill is passed.
17 Senator Kuhl, what's your
18 pleasure? We'll stand at ease for a few
19 minutes? No.
20 SENATOR KUHL: Any housekeeping
21 at the desk to be taken care of? Why don't we
22 take that up right now.
23 ACTING PRESIDENT WRIGHT: Senator
9358
1 Farley.
2 SENATOR FARLEY: Thank you, Mr.
3 President.
4 On behalf of Senator Stafford,
5 Mr. President, I wish to call up his bill, Print
6 Number 4217, which was recalled from the
7 Assembly and which is now at the desk.
8 ACTING PRESIDENT WRIGHT:
9 Secretary will read.
10 THE SECRETARY: Calendar Number
11 1032, by Senator Stafford, Senate Print 4217, an
12 act authorizing the Town of Dannemora, Clinton
13 County, to discontinue use as parklands.
14 SENATOR FARLEY: Mr. President, I
15 now move to reconsider the vote by which this
16 passed.
17 ACTING PRESIDENT WRIGHT: The
18 Secretary will call the roll on reconsideration.
19 (The Secretary called the roll on
20 reconsideration.)
21 THE SECRETARY: Ayes 58.
22 ACTING PRESIDENT WRIGHT: The
23 bill is before the house.
9359
1 Senator Farley.
2 SENATOR FARLEY: Mr. President, I
3 now offer the following amendments to the bill.
4 ACTING PRESIDENT WRIGHT:
5 Amendments received.
6 Senator Paterson.
7 SENATOR PATERSON: Mr. President,
8 may we open the roll on Calendars Number 728 and
9 1269 to allow Senator Waldon to vote? I'm
10 sorry, Mr. President. We haven't done Calendar
11 1269 yet.
12 ACTING PRESIDENT WRIGHT:
13 Senator, I'm informed at the desk that neither
14 one is on the active list or passed at this
15 point in time yet.
16 SENATOR PATERSON: We haven't
17 brought them up yet.
18 ACTING PRESIDENT WRIGHT: That is
19 correct.
20 SENATOR PATERSON: I'm sorry, Mr.
21 President.
22 (Whereupon, at 1:15 p.m., the
23 Senate was briefly at ease.)
9360
1 ACTING PRESIDENT WRIGHT: The
2 Senate will come to order.
3 Senator Kuhl.
4 SENATOR KUHL: Yes, Mr.
5 President. There has been placed on the list of
6 every member -- member's desk -- excuse me, on
7 the desk of every member, a list, what's called
8 an active list. It's a supplemental active list
9 to the one which we're very, very close to
10 completing, and what I would like to do is to
11 have you take up the second active list for the
12 day on a noncontroversial call.
13 So if you could have the
14 Secretary begin the active list for Calendar
15 Number 689, that would be fine.
16 ACTING PRESIDENT WRIGHT:
17 Secretary will read.
18 THE SECRETARY: On page 17,
19 Calendar 689, by Senator Trunzo, Senate Print
20 3577A, an act to amend the Civil Service Law, in
21 relation to providing for binding arbitration.
22 ACTING PRESIDENT WRIGHT: Read
23 the last section.
9361
1 THE SECRETARY: Section 4. This
2 act shall take effect immediately.
3 ACTING PRESIDENT WRIGHT: Call
4 the roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 58.
7 ACTING PRESIDENT WRIGHT: The
8 bill is passed.
9 THE SECRETARY: Calendar Number
10 1063, by Senator Maziarz.
11 SENATOR SMITH: Lay it aside,
12 please.
13 ACTING PRESIDENT WRIGHT: Lay it
14 aside.
15 THE SECRETARY: Calendar Number
16 1097, by Senator Tully.
17 SENATOR SMITH: Lay it aside,
18 please.
19 ACTING PRESIDENT WRIGHT: Lay it
20 aside, please.
21 THE SECRETARY: Calendar Number
22 1131, by Senator Maziarz, Senate Print 4435B, an
23 act to amend the Vehicle and Traffic Law, in
9362
1 relation to fees received by county clerks.
2 ACTING PRESIDENT WRIGHT: Read
3 the last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect on the 120th day.
6 ACTING PRESIDENT WRIGHT: Call
7 the roll.
8 (The Secretary called the roll.)
9 THE SECRETARY: Ayes 58.
10 ACTING PRESIDENT WRIGHT: The
11 bill is passed.
12 THE SECRETARY: Calendar Number
13 1170, by Senator Nozzolio, Senate Print 5017A,
14 an act to amend the Correction Law, in relation
15 to providing notification to law enforcement
16 officials.
17 ACTING PRESIDENT WRIGHT: Read
18 the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect immediately.
21 ACTING PRESIDENT WRIGHT: Call
22 the roll.
23 (The Secretary called the roll.)
9363
1 THE SECRETARY: Ayes 58.
2 ACTING PRESIDENT WRIGHT: The
3 bill is passed.
4 THE SECRETARY: Calendar Number
5 1187.
6 SENATOR SMITH: Lay it aside,
7 please.
8 ACTING PRESIDENT WRIGHT: Lay it
9 aside.
10 THE SECRETARY: Calendar Number
11 1259, by Senator Saland, Senate Print 4746A, an
12 act in relation to authorizing the city of
13 Beacon, county of Dutchess, to opt out of the
14 provisions of Chapter 602.
15 SENATOR SMITH: Lay it aside,
16 please.
17 ACTING PRESIDENT WRIGHT: Lay it
18 aside.
19 THE SECRETARY: Calendar Number
20 1261, by Senator Holland, Senate Print 932, an
21 act to amend the Mental Hygiene Law, in relation
22 to the placement of state-owned community
23 residences.
9364
1 ACTING PRESIDENT WRIGHT: Read
2 the last section.
3 THE SECRETARY: Section 2. This
4 act shall take effect immediately.
5 ACTING PRESIDENT WRIGHT: Call
6 the roll.
7 (The Secretary called the roll.)
8 THE SECRETARY: Ayes 58.
9 ACTING PRESIDENT WRIGHT: The
10 bill is passed.
11 THE SECRETARY: Calendar Number
12 1262, by Senator Kuhl.
13 SENATOR SMITH: Lay it aside,
14 please.
15 ACTING PRESIDENT WRIGHT: The
16 bill is laid aside.
17 THE SECRETARY: Calendar Number
18 1265, by Senator Kuhl, Senate Print 5293, an act
19 to amend the Vehicle and Traffic Law, in
20 relation to permitting the use of certain racks.
21 ACTING PRESIDENT WRIGHT: Read
22 the last section.
23 THE SECRETARY: Section 2. This
9365
1 act shall take effect immediately.
2 ACTING PRESIDENT WRIGHT: Call
3 the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 58.
6 ACTING PRESIDENT WRIGHT: The
7 bill is passed.
8 THE SECRETARY: Calendar Number
9 1266, by Senator LaValle.
10 SENATOR SMITH: Lay it aside,
11 please.
12 ACTING PRESIDENT WRIGHT: Lay it
13 aside.
14 THE SECRETARY: Calendar Number
15 1269, by Senator Holland, Senate Print 2044, an
16 act to amend the Social Services Law, in
17 relation to recovery of certain medical
18 assistance expenses.
19 SENATOR SMITH: Lay it aside,
20 please.
21 ACTING PRESIDENT WRIGHT: Lay it
22 aside.
23 THE SECRETARY: Calendar Number
9366
1 1270, by Senator Velella, Senate Print 2586, an
2 act to amend Chapter 576 of the Laws of 1975,
3 relating to authorizing the Commissioner of
4 Education.
5 SENATOR SMITH: Lay it aside,
6 please.
7 ACTING PRESIDENT WRIGHT: Lay it
8 aside.
9 THE SECRETARY: Calendar Number
10 1271, by Senator Santiago -
11 ACTING PRESIDENT WRIGHT: There
12 is a home rule message at the desk.
13 THE SECRETARY: -- Senate Print
14 3306, an act authorizing the City of New York to
15 reconvey its interest in certain real property
16 acquired by in rem tax foreclosure in the
17 borough of Brooklyn.
18 ACTING PRESIDENT WRIGHT: Read
19 the last section.
20 THE SECRETARY: Section 5. This
21 act shall take effect -
22 ACTING PRESIDENT WRIGHT: Call
23 the roll.
9367
1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes 58.
3 ACTING PRESIDENT WRIGHT: The
4 bill is passed.
5 THE SECRETARY: Calendar Number
6 1273, by Senator Kuhl, Senate Print 3831, an act
7 providing for Thomas A. Cassidy credit for
8 past -
9 SENATOR SMITH: Lay it aside,
10 please.
11 ACTING PRESIDENT WRIGHT: Lay it
12 aside.
13 THE SECRETARY: Calendar Number
14 1274, by Senator Hannon, Senate Print 3866, an
15 act to amend the Education Law, in relation to
16 experimental alternative institutional support
17 programs.
18 ACTING PRESIDENT WRIGHT: There
19 is a local fiscal impact note at the desk.
20 Read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect July 1.
23 ACTING PRESIDENT WRIGHT: Call
9368
1 the roll.
2 (The Secretary called the roll.)
3 THE SECRETARY: Ayes 58.
4 ACTING PRESIDENT WRIGHT: The
5 bill is passed.
6 THE SECRETARY: Calendar Number
7 1275, by Senator Kuhl, Senate Print 3868, an act
8 to require the New York State and local
9 employees retirement system to accept retirement
10 applications.
11 SENATOR SMITH: Lay it aside,
12 please.
13 ACTING PRESIDENT WRIGHT: Lay it
14 aside.
15 THE SECRETARY: Calendar Number
16 1277, by Senator Maltese, Senate Print 3910, an
17 act to amend the Tax Law, in relation to
18 exempting certain parts, tools, supplies and
19 services relating to tangible personal property.
20 ACTING PRESIDENT WRIGHT: There
21 is a local fiscal impact note at the desk.
22 Read the last section.
23 THE SECRETARY: Section 9. This
9369
1 act shall take effect immediately.
2 ACTING PRESIDENT WRIGHT: Call
3 the roll.
4 (The Secretary called the roll.)
5 THE SECRETARY: Ayes 58.
6 ACTING PRESIDENT WRIGHT: The
7 bill is passed.
8 THE SECRETARY: Calendar Number
9 1279, by Senator Seward, Senate Print 4568, an
10 act to amend the Civil Service Law, in relation
11 to granting residents of the city of Ithaca in
12 the town of Ithaca a preference in appointment.
13 ACTING PRESIDENT WRIGHT: Read
14 the last section.
15 THE SECRETARY: Section 2. This
16 act shall take effect immediately.
17 ACTING PRESIDENT WRIGHT: Call
18 the roll.
19 (The Secretary called the roll.)
20 THE SECRETARY: Ayes 58.
21 ACTING PRESIDENT WRIGHT: The
22 bill is passed.
23 THE SECRETARY: Calendar Number
9370
1 1280, by Senator Libous, Senate Print 4630, an
2 act to amend the Mental Hygiene Law, in relation
3 to limiting the use of state funds for payment
4 of compensation to certain officers and
5 employees of providers of services.
6 ACTING PRESIDENT WRIGHT: Read
7 the last section.
8 THE SECRETARY: Section 4. This
9 act shall take effect immediately.
10 ACTING PRESIDENT WRIGHT: Call
11 the roll.
12 (The Secretary called the roll.)
13 THE SECRETARY: Ayes 58.
14 ACTING PRESIDENT WRIGHT: The
15 bill is passed.
16 THE SECRETARY: Calendar Number
17 1282, by Member of the Assembly Brennan,
18 substituted earlier today, Assembly Print 2788,
19 an act to amend the Mental Hygiene Law, in
20 relation to the employees of the Mental Hygiene
21 Legal Service.
22 ACTING PRESIDENT WRIGHT: Read
23 the last section.
9371
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT WRIGHT: Call
4 the roll.
5 (The Secretary called the roll.)
6 THE SECRETARY: Ayes 58.
7 ACTING PRESIDENT WRIGHT: The
8 bill is passed.
9 THE SECRETARY: Calendar Number
10 1284, by Member of the Assembly Dinowitz,
11 substituted earlier today, Assembly Print 5975,
12 an act to amend the Mental Hygiene Law, in
13 relation to service as president of boards of
14 visitors of hospitals and schools.
15 SENATOR SMITH: Lay it aside,
16 please.
17 ACTING PRESIDENT WRIGHT: Lay it
18 aside.
19 THE SECRETARY: 1285, by Senator
20 Hannon, Senate Print 5026A, an act to amend the
21 Executive Law, in relation to enacting the
22 engineers' and architects' Good Samaritan Act.
23 SENATOR SMITH: Lay it aside.
9372
1 ACTING PRESIDENT WRIGHT: Lay it
2 aside.
3 THE SECRETARY: Calendar Number
4 1286, by Senator Saland, Senate Print 5106A, an
5 act to amend the Social Services Law and the
6 Education Law, in relation to the protection of
7 pupils in public school settings from abuse and
8 maltreatment.
9 SENATOR SMITH: Lay it aside,
10 please.
11 ACTING PRESIDENT WRIGHT: Lay it
12 aside.
13 THE SECRETARY: Calendar Number
14 1288, by Senator Maltese, Senate Print 5273, an
15 act to amend the Vehicle and Traffic Law, in
16 relation to parking violations and red light
17 camera violations.
18 ACTING PRESIDENT WRIGHT: Read
19 the last section.
20 THE SECRETARY: Section 3. This
21 act shall take effect immediately.
22 ACTING PRESIDENT WRIGHT: Call
23 the roll.
9373
1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes 58.
3 ACTING PRESIDENT WRIGHT: The
4 bill is passed.
5 THE SECRETARY: Calendar Number
6 1289, by Senator Cook, Senate Print 5282, an act
7 to provide for retirement service credit in the
8 New York State and local police and fire
9 retirement system for Richard C. Paolino.
10 ACTING PRESIDENT WRIGHT: There
11 is a home rule message at the desk.
12 Read the last section.
13 THE SECRETARY: Section 3. This
14 act shall take effect immediately.
15 ACTING PRESIDENT WRIGHT: Call
16 the roll.
17 (The Secretary called the roll.)
18 THE SECRETARY: Ayes 58.
19 ACTING PRESIDENT WRIGHT: The
20 bill is passed.
21 THE SECRETARY: Calendar Number
22 1290, by Senator Rath, Senate Print 5359, an act
23 to amend the Civil Practice Law and Rules and
9374
1 the Executive Law, in relation to extending the
2 statute of limitations on actions by a victim.
3 SENATOR DOLLINGER: Lay it aside.
4 ACTING PRESIDENT WRIGHT: Lay it
5 aside.
6 THE SECRETARY: Calendar Number
7 1291, by member of the Assembly Kaufman,
8 substituted earlier today, Assembly Print 3411,
9 an act authorizing the city of New York to
10 reconvey its interest in certain real property
11 acquired by in rem tax foreclosure in the
12 borough of the Bronx.
13 ACTING PRESIDENT WRIGHT: There
14 is a home rule message at the desk.
15 Read the last section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT WRIGHT: Call
19 the roll.
20 (The Secretary called the roll.)
21 THE SECRETARY: Ayes 58.
22 ACTING PRESIDENT WRIGHT: The
23 bill is passed.
9375
1 Senator Kuhl, that completes the
2 reading of the noncontroversial calendar.
3 SENATOR SEWARD: Mr. President.
4 ACTING PRESIDENT WRIGHT: Senator
5 Seward.
6 SENATOR SEWARD: I would ask
7 unanimous consent to be recorded in the negative
8 on two bills we passed earlier today, Calendar
9 Number 225 and Calendar Number 806.
10 SENATOR KUHL: No objection.
11 ACTING PRESIDENT WRIGHT: Without
12 objection, Senator Seward will be recorded in
13 the negative on Calendar Number 225 and Calendar
14 Number 806.
15 ACTING PRESIDENT WRIGHT: Senator
16 Holland.
17 SENATOR HOLLAND: Mr. President,
18 with unanimous consent, could I be recorded in
19 the negative on 125 and 806?
20 ACTING PRESIDENT WRIGHT: Without
21 objection, Senator Holland is recorded in the
22 negative on Calendar 125 and 806.
23 Senator Saland.
9376
1 SENATOR SALAND: Mr. President, I
2 would like to place a sponsor's star on Calendar
3 1259, Senate 4746A.
4 ACTING PRESIDENT WRIGHT:
5 Sponsor's star will be placed on Calendar Number
6 1259.
7 Senator Rath.
8 SENATOR RATH: Yes, Mr.
9 President. Without objection, I would like to
10 be recorded in the negative on Calendar 689.
11 ACTING PRESIDENT WRIGHT: Without
12 objection, Senator Rath will be recorded in the
13 negative on Calendar Number 689.
14 Senator Dollinger.
15 SENATOR DOLLINGER: Mr.
16 President, could I have unanimous consent of the
17 house to be recorded in the negative on Calendar
18 Number 831?
19 ACTING PRESIDENT WRIGHT: Without
20 objection, Senator Dollinger will be recorded in
21 the negative on Calendar Number 831.
22 Senator Kuhl.
23 SENATOR KUHL: Mr. President,
9377
1 could you call up Calendar Number 1063, please.
2 ACTING PRESIDENT WRIGHT:
3 Calendar Number 1063. Secretary will read.
4 THE SECRETARY: Calendar Number
5 1063, by Senator Maziarz, Senate Print 4018A.
6 SENATOR SMITH: Explanation.
7 ACTING PRESIDENT WRIGHT: Senator
8 Maziarz, an explanation has been requested by
9 Senator Smith.
10 SENATOR MAZIARZ: Yes, Mr.
11 President. The county of Orleans, I believe it
12 was three years ago, asked this body, and this
13 body approved, to implement an extra one percent
14 in their sales tax, bringing their sales tax to
15 8 percent.
16 They estimate -- the county
17 legislature estimates that they have been able
18 through the imposition of this additional one
19 percent sales tax to hold down the property
20 taxes by approximately 25 percent in the County
21 of Orleans.
22 There was a unanimous -- I want
23 to stress "unanimous," Mr. President -
9378
1 resolution passed by the Orleans County
2 Legislature asking me to bring this resolution
3 before this body.
4 ACTING PRESIDENT WRIGHT: Read
5 the last section.
6 THE SECRETARY: Section 3. This
7 act shall take effect immediately.
8 ACTING PRESIDENT WRIGHT: Call
9 the roll.
10 (The Secretary called the roll.)
11 THE SECRETARY: Ayes 58.
12 ACTING PRESIDENT WRIGHT: The
13 bill is passed.
14 Senator Kuhl.
15 SENATOR KUHL: Would you call up
16 Calendar Number 1262, please.
17 ACTING PRESIDENT WRIGHT:
18 Secretary will read.
19 THE SECRETARY: Calendar Number
20 1262, by Senator Kuhl, Senate Print 5087A, an
21 act to amend the Retirement and Social Security
22 Law, in relation to authorizing the Keuka Lake
23 Watershed Improvement Cooperative.
9379
1 SENATOR SMITH: Explanation,
2 please.
3 ACTING PRESIDENT WRIGHT: Senator
4 Smith has requested an explanation.
5 Senator Kuhl.
6 SENATOR KUHL: Yes, Mr.
7 President. This is a local bill. It is being
8 requested by seven municipal governments.
9 Several years ago, about five,
10 Keuka Lake, which is one of the Finger Lakes -
11 it's shaped like the thumb and the first finger,
12 the Y in your hand -- became -- and the
13 residents surrounding the lake became extremely
14 concerned about the long-term quality of the
15 water. They were running into problems with
16 runoff from the hills, soil erosion, from septic
17 tanks that were not working, and potentially the
18 downgrading of the quality of the water in the
19 lake which would affect things like fishing,
20 recreational use, swimming, and most of the
21 residents around the lake actually use the water
22 as drinking water.
23 And while they may have systems
9380
1 like ultraviolet systems and other kinds of
2 filtration systems to purify it, certainly, if
3 the quality of the water becomes degraded, then
4 essentially there is a tremendous economic loss
5 and personal usage loss of the Lake.
6 These seven municipalities, which
7 are the towns of the two counties and a couple
8 of villages, decided that there was the need for
9 a cooperative effort to essentially establish
10 rules and regulations for people who live around
11 the water body itself and also for people who
12 were in what's called the Keuka Lake watershed.
13 What these communities decided to do was to form
14 an entity to try to control the environment as
15 it relates to this body of water.
16 So they formed an organization
17 called the -- or, what is commonly referred to
18 as KWIC, or the Keuka Lake Watershed Improvement
19 Cooperative, and they unanimously entered into
20 an agreement that would start to establish a
21 methodology by which they would administer
22 certain types of regulations that would control
23 the watershed.
9381
1 What they have done at this point
2 is, each municipality has, voluntarily through
3 their own municipal board, established
4 resources, finances, money, to hire a small
5 staff in the form of one watershed inspector.
6 They decided to, rather than take on every issue
7 of decision with the environment at one time,
8 they would approach it on a piecemeal basis and
9 start with septic system control at first.
10 So they hired a watershed
11 inspector who, in fact, goes around and approves
12 applications, where there's new construction
13 goes in and looks at the plans, approves them or
14 disapproves them, and then follows up on the
15 actual implementation. Where there are reports
16 of, say, sewage being directly dumped into the
17 water, this watershed inspector investigates
18 and, in fact, will follow up with enforcement of
19 the rules and regulations that are in place.
20 A problem has surfaced in that an
21 individual can not participate in the New York
22 State Retirement System unless they are employed
23 by a municipality. This proposal would allow
9382
1 for the employee of this cooperative group of
2 seven municipalities to be included in the New
3 York State retirement system, and that's what
4 the bill is all about.
5 ACTING PRESIDENT WRIGHT: Read
6 the last section.
7 Senator Smith.
8 SENATOR SMITH: Yes. Thank you
9 for that explanation.
10 Can I ask one question, Mr.
11 President?
12 ACTING PRESIDENT WRIGHT: Senator
13 Kuhl, do you yield?
14 SENATOR KUHL: Be happy to.
15 ACTING PRESIDENT WRIGHT: Senator
16 Kuhl yields.
17 SENATOR SMITH: Senator, could
18 you tell me if there is any fiscal implication
19 for the state?
20 SENATOR KUHL: Not that I'm aware
21 of. Not that I'm aware of.
22 SENATOR SMITH: Another question
23 please, would you?
9383
1 ACTING PRESIDENT WRIGHT: Senator
2 Smith.
3 SENATOR KUHL: Be happy to yield.
4 SENATOR SMITH: Thank you. Could
5 you tell me, would the counties bear the expense
6 of KWIC?
7 SENATOR KUHL: Not the counties
8 alone, Senator. There are villages. There's
9 the village of Penn Yan, the village of
10 Hammondsport, the county of Yates, the county of
11 Steuben, and there are several towns that
12 surround or are involved in the watershed who,
13 cooperatively, based on their population
14 contribute to the pot of KWIC, and so that they
15 cooperatively share in the cost and they would
16 be cooperatively and jointly contributing to the
17 retirement system on behalf of or the
18 responsibility of the employer.
19 SENATOR SMITH: Once again, thank
20 you, Mr. President.
21 ACTING PRESIDENT WRIGHT: Senator
22 Stachowski.
23 SENATOR STACHOWSKI: If Senator
9384
1 Kuhl will yield?
2 ACTING PRESIDENT WRIGHT: Senator
3 Kuhl, will you yield?
4 SENATOR KUHL: Happy to yield.
5 ACTING PRESIDENT WRIGHT: Senator
6 yields.
7 SENATOR STACHOWSKI: I'm sorry I
8 got here late, and I don't know if you covered
9 any of this, but I had a couple questions
10 yesterday in Rules on this particular bill, and
11 one of the questions was -- and maybe you
12 covered it in your explanation. Like I said,
13 I'm sorry. I just came in from Finance.
14 There was -- in the bill, I
15 thought I read where people were going to go
16 retroactively all the way back to Tier I, where
17 if they were never state employees and anyone
18 who currently just comes into the state
19 retirement system enters at the current tier,
20 and I believe in that bill, people go into Tier
21 I, Tier II, Tier III and Tier IV. Why wouldn't
22 all these people automatically be in Tier IV
23 since they weren't in the retirement system
9385
1 until this bill will pass?
2 SENATOR KUHL: Senator
3 Stachowski, I didn't cover that in my
4 explanation, but there is currently one employee
5 of Keuka Lake Watershed Improvement Cooperative
6 or Commission, and that individual has prior
7 experience in the New York State Retirement
8 System and was a Tier I employee.
9 So the bill is meant to continue
10 that person with the same benefits that they
11 were in their previous employment, and it's not
12 aimed at any other employee.
13 ACTING PRESIDENT WRIGHT: Senator
14 Stachowski.
15 SENATOR STACHOWSKI: If Senator
16 Kuhl will continue to yield?
17 ACTING PRESIDENT WRIGHT:
18 Senator, do you continue to yield?
19 SENATOR KUHL: Be happy to.
20 ACTING PRESIDENT WRIGHT: Senator
21 yields.
22 SENATOR STACHOWSKI: Then the
23 other part of that would be that the rest of the
9386
1 people that will go in will go in as Tier IV
2 members; is that correct?
3 SENATOR KUHL: Whatever the tier
4 is at the time of their entry, yes, Senator.
5 SENATOR STACHOWSKI: Thank you.
6 ACTING PRESIDENT WRIGHT: Senator
7 Dollinger.
8 SENATOR DOLLINGER: Two quick
9 questions, if the sponsor will yield?
10 ACTING PRESIDENT WRIGHT: Senator
11 Kuhl, will you yield?
12 SENATOR KUHL: Yes, be happy to.
13 ACTING PRESIDENT WRIGHT: Senator
14 yields.
15 SENATOR DOLLINGER: Is the
16 agreement to support KWIC an intermunicipal
17 agreement? Is it a signed contract between all
18 the communities?
19 SENATOR KUHL: That's correct,
20 Senator.
21 SENATOR DOLLINGER: Okay, and
22 again, through you, Mr. President, just one
23 other question.
9387
1 What other state laws would apply
2 to this individual, the Civil Service rules and
3 regulations? Is there any -- we're going to put
4 them in the retirement system, but he or she is
5 sort of out there working for an independent
6 agency? Are they governed by other state
7 rules? Is KWIC's future hiring, if they need
8 more people, done pursuant to the Civil Service
9 Law, or is it just an independent agency without
10 complying with those?
11 SENATOR KUHL: It's really an
12 independent entity, if you will, Senator, that
13 was created as a result of the intermunicipal
14 agreement of the municipalities involved. As
15 far as I know, Civil Service is not a
16 requirement in this particular case. Certainly
17 there are other laws that apply to the towns in
18 their operative participation, but nothing that
19 I know that relates to individual employees.
20 SENATOR DOLLINGER: Mr.
21 President, I think this is a good idea.
22 ACTING PRESIDENT WRIGHT: Senator
23 Dollinger.
9388
1 SENATOR DOLLINGER: I think it's
2 a good community cooperative effort. My concern
3 is more about what happens in the future, but
4 we'll deal with that as it comes up.
5 SENATOR KUHL: Read the last
6 section.
7 ACTING PRESIDENT WRIGHT: Read
8 the last section.
9 THE SECRETARY: Section 2. This
10 act shall take effect immediately.
11 ACTING PRESIDENT WRIGHT: Call
12 the roll.
13 (The Secretary called the roll.)
14 THE SECRETARY: Ayes 58.
15 ACTING PRESIDENT WRIGHT: The
16 bill is passed.
17 SENATOR GOLD: Mr. President.
18 ACTING PRESIDENT WRIGHT: Senator
19 Gold.
20 SENATOR GOLD: Yes, Mr.
21 President. I was at a committee meeting, and
22 with unanimous consent, could I be recorded in
23 the negative on Calendar 241?
9389
1 ACTING PRESIDENT WRIGHT: Without
2 objection, Senator Gold will be recorded in the
3 negative on Calendar Number 241.
4 Senator Kuhl.
5 SENATOR KUHL: Mr. President,
6 would you call up Calendar Number 728, by
7 Senator Levy, please.
8 ACTING PRESIDENT WRIGHT:
9 Secretary will read.
10 THE SECRETARY: Calendar Number
11 728, by Senator Levy, Senate Print 973C, an act
12 to amend the Vehicle and Traffic Law, in
13 relation to operation of a motor vehicle by
14 persons under the age of 21.
15 SENATOR PATERSON: Explanation.
16 SENATOR LEVY: Yes, Senator.
17 ACTING PRESIDENT WRIGHT: Senator
18 Levy.
19 SENATOR LEVY: Senator Paterson,
20 this is the .02 zero-tolerance legislation for
21 operators of motor vehicles under the age of 21,
22 and it provides for administrative suspension
23 for operating a motor vehicle after having
9390
1 consumed alcohol. It is very similar to the
2 bill that we passed last year overwhelmingly in
3 this chamber and, as I'm sure you know, it is
4 illegal for young people under the age of 21 in
5 this state to be consuming alcohol.
6 Twenty-seven other states plus
7 the District of Columbia have enacted laws
8 similar to this bill, and our neighbors in New
9 Jersey and Massachusetts have such laws, and
10 there are bills on the desks of the Governors of
11 Connecticut and Rhode Island to enact similar
12 legislation to this bill.
13 Now, let me just point out, and
14 then I'll be happy to yield to your questions,
15 Senator, that under-age operators comprise 5
16 percent of New York State's drivers. They are
17 involved in 100 percent greater percentage of
18 fatal alcohol-related accidents in the state of
19 New York. 11 percent of those fatalities
20 involve drivers under 21 who have consumed
21 alcoholic beverages.
22 What this bill would do, Senator,
23 is, from a concept standpoint, really extend the
9391
1 concept underlying last year's prompt suspension
2 law to operators of motor vehicles under the age
3 of 21 who have a BAC of between .02 and .07.
4 ACTING PRESIDENT WRIGHT: Senator
5 Paterson.
6 SENATOR GOLD: Mr. President.
7 ACTING PRESIDENT WRIGHT: Senator
8 Gold.
9 SENATOR GOLD: Yes. Senator Levy
10 said he was happy to yield to Senator Paterson.
11 I just want the record to indicate that no one
12 in the chamber right now is happier than Senator
13 Onorato.
14 ACTING PRESIDENT WRIGHT: Thank
15 you, Senator Gold.
16 Senator Paterson.
17 SENATOR PATERSON: If Senator
18 Levy would happily yield for a question?
19 ACTING PRESIDENT WRIGHT: Senator
20 Levy, will you continue to yield?
21 SENATOR LEVY: Certainly.
22 ACTING PRESIDENT WRIGHT: Senator
23 Levy.
9392
1 SENATOR PATERSON: Senator Levy,
2 your bill defines the redress for those who are
3 found with blood alcohol levels of .02 to .07
4 and, of course, the legal limit is 1.0, and so
5 that just begs the obvious question, what is
6 going to happen with those individuals who test
7 from .07 to 1.0 -- to .1? I'm sorry.
8 SENATOR LEVY: Senator, as you
9 know, in New York State, .07 or over is driving
10 while your ability is impaired, .10 and above is
11 driving while intoxicated. Those are both
12 alcohol -- both alcohol-related offenses.
13 What this bill will do between
.02
14 and .07, because young people under 21 according
15 to the law are not to be imbibing alcohol, will
16 provide for an administrative suspension of
17 their operating privilege if they are determined
18 to have a BAC of between .02 and .07.
19 SENATOR PATERSON: Okay.
20 Actually, you've answered the question, Senator
21 Levy. If you would yield for another question?
22 SENATOR LEVY: Yes, certainly.
23 ACTING PRESIDENT WRIGHT: Senator
9393
1 Levy, will you continue to yield?
2 Senator yields.
3 SENATOR PATERSON: Is it possible
4 that younger people who might be taking cough
5 medicine or use mouthwash or something else that
6 really would not even alert them to the fact
7 that there is some alcohol content, that that
8 might raise the blood alcohol level to .02,
9 which is really rather low, and, therefore,
10 subject some younger people who are not trying
11 to drive while intoxicated or even drive while
12 drinking to suspension of their licenses? In
13 other words, is .02, in a sense, too low a
14 threshold, whereby it might be achieved through
15 some other source than an alcoholic beverage?
16 SENATOR LEVY: Senator Paterson,
17 other states have gone forward with a zero BAC.
18 The concern that you raise, because the chemical
19 test to detect BAC can detect BAC of .02 and
20 above, that is the reason we have used the .02
21 standard in this bill, to eliminate the concern
22 that you have raised unlike other states that go
23 with a zero BAC.
9394
1 SENATOR PATERSON: And finally,
2 Senator Levy, am I correct that you said earlier
3 that although younger people constitute 5
4 percent of the driving while intoxicated
5 incidents that occur in New York State, that it
6 is -- in other words, they are 5 percent of that
7 number of drivers, that they actually are
8 involved in double the number of accidents?
9 SENATOR LEVY: They are involved
10 in 11 percent of the fatal auto crashes in this
11 state where alcohol has been involved in those
12 crashes, or greater than 100 percent greater
13 than the percentage they represent of total New
14 York State drivers.
15 SENATOR PATERSON: Well, I think
16 that pretty much establishes the strong need for
17 this legislation. I thank the Senator for
18 answering my questions.
19 ACTING PRESIDENT WRIGHT: Senator
20 Marchi.
21 SENATOR MARCHI: I find myself in
22 a rather curious position, because anything that
23 Senator Levy has on his agenda I'm in full
9395
1 support, and especially measures that he has
2 introduced on DWI and so many other approaches
3 that have materially reduced the incidence of
4 fatalities on the highways.
5 But we're back to the 18 and the
6 21. I have never believed in the 21-year-old
7 threshold, regardless of statistics, because
8 when we were keeping statistics and comparing
9 the record of New York State as against other
10 states, the record uniformly, in my experience,
11 showed that New York had a better record. There
12 were those who were going into licensed
13 premises, weren't crossing some sort of a macho
14 threshold to prove their manhood by drinking
15 somewhere. It was something that took place
16 under more normal circumstances.
17 I remember being a Commander at
18 sea with seamen and approaching any one of a
19 number of ports on both the Atlantic and the
20 Pacific where the casualties were frightful in
21 terms of drinking too much, and all with the
22 exception of New York. I didn't have that
23 problem in New York. If the seamen went ashore,
9396
1 they were more likely to come back sober than
2 they were any other states.
3 What it does, I believe -- and
4 this does not dispute the fact that the
5 youngsters do have a higher incidence of alcohol
6 -- have a higher incidence of fatalities on the
7 highways, and this is true irrespective of
8 whatever law is in vogue -- is that it breeds a
9 sense of cynicism.
10 The average youngster throughout
11 the United States with their false IDs, and it's
12 not even a question of trying to enforce, the
13 subterfuges and the circumventions are rank from
14 the Atlantic to the Pacific. I don't think this
15 engenders any confidence, any belief that this
16 builds up a respect for law among young people.
17 This is a law which so many of them take great
18 pride, and they become cynical about the law. I
19 don't know whether that cynicism is attached to
20 other things that we do, but I believe that it
21 certainly is not a good character builder.
22 Yes, even the law that the
23 Senator has proposed would make a great deal of
9397
1 sense, I guess, if it were applied to everybody,
2 but this simply does not meet the test in my
3 book.
4 I remember writing a letter to
5 the Catholic Weekly, who praised Governor Cuomo
6 for signing the 21-year drinking age bill, and I
7 wrote a letter to the Catholic Weekly, and I
8 said that I didn't think the founder of my
9 religion when he performed his miracle at the
10 marriage feast of Cana also checked the ID cards
11 of those who were attending the wedding. It's
12 sobriety that counts, and for far too long I
13 believe that people in our country feel that
14 there is something naughty about drinking, and
15 they also feel that there is something wrong if
16 you don't drink.
17 The mature attitude would be you
18 drink if you'd like to within reason or you
19 don't drink at all. But if you don't drink -- I
20 don't know, how many of you remember the old
21 movies? I haven't been to the movies in years,
22 but someone would walk up to the -- it could be
23 Gary Cooper or one of the stars of the time, and
9398
1 he would order a glass of milk. Everybody would
2 turn around and look at him, and then somebody
3 would shove him, and he would pull his guns out
4 and shoot all the bulbs out. That's the
5 mentality, that he couldn't go up and ask for a
6 glass of milk, where you can in many countries
7 ask for a glass of milk and nobody will look
8 down their noses if you do that. So it's not
9 quite right not to drink and it's not quite
10 right to drink.
11 Sobriety is the ultimate test,
12 and I don't think that legislation of this
13 nature helps it. I say this with greatest
14 deference and apologies to my friend Senator
15 Levy, because he has done so much in this field
16 and so much of it has really showed the country,
17 really, how to approach this problem in a
18 positive way, in a constructive way, but this is
19 one point where I disagree.
20 ACTING PRESIDENT WRIGHT: Senator
21 DiCarlo.
22 SENATOR DiCARLO: Thank you, Mr.
23 President. I'm going to vote no on this bill,
9399
1 and I feel I have to explain the reason why.
2 It's not because I don't believe in punishing
3 people for illegal acts. It's not because I'm
4 soft on DWI. As a matter of fact, this week
5 we're going to be hopefully passing my Deadly
6 Driver Reform Act again this year, which would
7 be the toughest DWI, unlicensed, unregistered
8 driver bill in the country.
9 I agree with Senator Marchi to a
10 great extent. If we were passing legislation
11 that affected all of society equally, I might be
12 supportive. If I were here a number of years
13 ago when they passed the 21 drinking age, I
14 think I would have voted no. I don't think we
15 should be passing laws against individuals and
16 groups in this state. I think we should be
17 passing laws that impact on everybody equally.
18 Somebody who is 20 years old and goes home to
19 their parents or their grandparents and has
20 Sunday dinner and a glass of wine, I don't think
21 it's right that two hours later when they are on
22 the road they lose their license.
23 I think we go a little bit too
9400
1 far in this state. We should be tough on those
2 who flaunt the law, tough on those who are truly
3 a danger in society, but I think when you go too
4 far you minimize those crimes that are truly
5 heinous. We should be keeping those drunks off
6 the road forever, for good, but somebody who
7 goes out after having a glass of wine with their
8 parents or their grandparents on a Sunday
9 afternoon, an hour and a half, two hours later,
10 for this to be treated in this manner, I think,
11 is just not the right thing to do. Let's be
12 tough on those who are truly a danger to society
13 but let's not single out a small group of
14 individuals many of whom are very responsive and
15 responsible in society even if they happen to be
16 between the ages of 18 and 21.
17 ACTING PRESIDENT WRIGHT: Chair
18 recognizes Senator Hoffmann.
19 SENATOR HOFFMANN: I listened
20 with great interest to Senator Marchi's comments
21 on the box in the other room, and it brought
22 back to my memory a debate that we had quite a
23 few years ago in this chamber when this state
9401
1 raised the drinking age to 21.
2 At that time, Senator Marchi and
3 I were among those who voted in opposition to
4 raising the drinking age to 21 and, in fact, the
5 Senior Senator from Staten Island and I
6 attempted to have the state of New York enjoin
7 the South Dakota lawsuit because South Dakota
8 was the only state in the nation that was at
9 that time challenging the federal government's
10 blackmail, the blackmail of every state in the
11 nation to raise the drinking age in order to
12 received continued federal highway assistance,
13 two totally unrelated issues that had been
14 linked by a federal regulation, not legislation
15 but a regulation that forced 50 states in the
16 nation to change their laws relative to behavior
17 by people in the age group of 18 to 21.
18 It troubled me then and it
19 troubles me now that we somehow single out
20 people in that age group as less worthy citizens
21 and we make an assumption that they are
22 incapable of exercising adult responsibility
23 when, in fact, they have done nothing by their
9402
1 own actions to indicate that. They have done
2 nothing as a group of people to indicate that
3 they are irresponsible drinkers, period; and
4 they have certainly done nothing to indicate by
5 their behavior that they are irresponsible to
6 operate motor vehicles when having consumed a
7 tiny portion of alcohol through -- unbelievable
8 as it may sound -- even mouthwash consumption in
9 normal oral hygiene activity or through the
10 consumption of a cough syrup that contains
11 alcohol. Both of these could actually trigger a
12 test which would put a person out of compliance
13 with the law should this law pass.
14 I continue to be appalled that as
15 a state and as a nation we allowed our entire
16 category of young people in the 18- to 21-year
17 age category to be deemed unworthy to consume
18 alcoholic beverages in the first place, and now
19 to further create this rather minuscule
20 prohibition that would allow them to be arrested
21 and subjected to criminal penalties that no
22 other category of New York State citizens would
23 face, I think would be a terrible travesty of
9403
1 justice, so I will vote no, and I will urge my
2 colleagues to vote no as well.
3 ACTING PRESIDENT WRIGHT: Senator
4 Dollinger.
5 SENATOR DOLLINGER: Mr.
6 President, I rise to speak in favor of this
7 bill. I've listened intently to Senator
8 Hoffmann and Senator DiCarlo and Senator Marchi,
9 and I understand that the policy debate about
10 when we prohibit the consumption of alcohol,
11 whether it's 18 or 21 or whatever age we create,
12 involves a certain arbitrary quality and,
13 frankly, oftentimes involves setting limits for
14 the state's exercise of its authority and its
15 power.
16 But the one thing we have done,
17 without question, is we have banned the
18 consumption of alcohol by those -- the purchase
19 of alcohol by those under age 21. In doing
20 that, we sent a message to a generation unlike
21 the one that was sent to me.
22 I agree with Senator Hoffmann
23 there may be even some consistency in changing
9404
1 it from generation to generation. But,
2 nonetheless, a prior Legislature, not one that I
3 participated in, said that if you buy or
4 purchase alcohol under age 21 you are breaking
5 the law, and if you are served alcohol under the
6 age 21 outside the context of the family, which
7 I think is still an exception, you are breaking
8 the law.
9 What this bill does is this
10 simply says that you can't afford the single
11 irresponsible act of an individual between 18
12 and 21, not the irresponsible act of consuming
13 alcohol -- some of them may choose to do that -
14 but driving an automobile while doing it. We
15 can't tolerate one instance of that
16 irresponsibility.
17 The memo from RID that talks
18 about the two high school seniors and football
19 players from Saratoga County who died in a crash
20 after celebrating their team's victory -
21 ACTING PRESIDENT WRIGHT: Senator
22 DeFrancisco, why do you rise?
23 SENATOR DeFRANCISCO: Would
9405
1 Senator Dollinger yield to a question?
2 SENATOR DOLLINGER: I'd be glad
3 to, Mr. President.
4 ACTING PRESIDENT WRIGHT: Senator
5 will yield.
6 SENATOR DeFRANCISCO: Senator
7 Dollinger, is it any less irresponsible for a
8 person aged 65 to get behind a wheel after
9 having drank one or two glasses of alcohol?
10 SENATOR DOLLINGER: It is
11 irresponsible for them to get behind the wheel,
12 that is correct.
13 SENATOR DeFRANCISCO: So do you
14 support amending this bill to include 65-year
15 olds? Well, let's put voting age people, other
16 than the limits we have now 18 to 21.
17 SENATOR DOLLINGER: I'm not sure
18 I understand the question.
19 ACTING PRESIDENT WRIGHT: Senator
20 Dollinger, do you continue to yield?
21 SENATOR DOLLINGER: I'll continue
22 to yield. I just don't -
23 ACTING PRESIDENT WRIGHT: Senator
9406
1 DeFrancisco.
2 SENATOR DeFRANCISCO: Do you
3 support amending this bill to include all voting
4 age people whether you are 18 to 21 or 65 or 45,
5 that they also would have their licenses taken
6 away if found with .02 percent alcohol?
7 SENATOR DOLLINGER: Mr.
8 President, my personal preference would be I
9 wouldn't have any problem with that, no.
10 SENATOR DeFRANCISCO: Thank you.
11 ACTING PRESIDENT WRIGHT: Senator
12 Dollinger.
13 SENATOR DOLLINGER: My personal
14 view, my view about that age group between 18 to
15 21, those who are barred by law from consuming
16 alcohol, I think we can draw a more rigid line
17 for them and impose a more rigid penalty because
18 of the uncontroverted evidence that in that age
19 group their conduct, their irresponsible conduct
20 has more disastrous consequences.
21 I think all we're doing is taking
22 our law, making it conform to what we know is
23 the practical reality, which is, under 21 you
9407
1 can't drink, by law, but yet, if you do and if
2 you're caught driving an automobile, you are
3 going to pay a more severe penalty. I think
4 that sends a message to our kids, one of mine
5 who is about to enter that age group, that
6 driving while drinking is absolutely, totally,
7 completely irresponsible, not something that
8 should start between 18 and 21 and continue
9 beyond 21. It shouldn't start at all.
10 I think we can send that
11 message. We do that by this statute. I urge
12 its approval.
13 ACTING PRESIDENT WRIGHT: Senator
14 DeFrancisco.
15 SENATOR DeFRANCISCO: Yes. I'm
16 going to vote against this bill for many of the
17 reasons that were discussed earlier. It just
18 bothers me that you have a situation where those
19 individuals who have no representation in their
20 age group on this body, those between 18 and 21,
21 get the brunt of some of the social problems.
22 If we ever carved out a class of
23 individuals and said that only as to these class
9408
1 of individuals we are going to apply a certain
2 law and those class of individuals were any
3 class other than 18- to 21-year-old children,
4 young adults, we would have the most vigorous
5 debate that this chamber has ever seen, and to
6 say that the 18- to 21-year-old person is
7 considered to be less responsible, that's a
8 broad generalization, that we would never even
9 consider speaking about any other group in those
10 terms.
11 There are responsible people in
12 every group and irresponsible people in every
13 group. Individuals may be at home having a
14 glass of wine or something with dinner with the
15 approval of their parents and to suggest that we
16 have a standard of .02 -- which I'm not even
17 sure if that's the standard within which there's
18 going to be a legitimate test because there's a
19 standard deviation where these tests have an
20 error to them, whether or not that even fits in
21 with that standard deviation to make it a
22 legitimate test.
23 So, for each of these reasons, I
9409
1 feel that I have to vote against this bill, and
2 no doubt somebody out there somewhere is going
3 to say I'm not tough on DWI. But if you want to
4 be tough on DWI, you got to be tough on every
5 body, not just one small class of individuals
6 who have that same broad section of irrespons
7 ible or responsible people in them, and I would
8 urge others to vote in the same way.
9 ACTING PRESIDENT WRIGHT: Chair
10 recognizes Senator Sears.
11 SENATOR SEARS: Thank you very
12 much, Mr. President. I rise on this bill
13 because I'm not quite sure I understand what
14 we're doing here.
15 You know, in May, around May the
16 8th, we celebrated 50 years of the end of World
17 War II in Europe, and here in a month or so, in
18 August I believe it is -- I don't know the exact
19 date -- we will celebrate 50 years of the end of
20 the war in Japan; and if you have read the
21 papers and you have read what's happened back in
22 those years, when we had the Memorial Day
23 celebration just a few short weeks ago, and it
9410
1 come out in the newspapers again to remind the
2 people of this country that a lot of those
3 people that were killed over there in Europe at
4 Normandy, Iwo Jima, you name it, they were 18
5 and -- between 18- and 21-year-old kids, gave
6 their lives for this country.
7 Now, on the 50th anniversary of
8 this celebration of all the people that got
9 killed, but, of course, we won the war, now
10 we're going to pass legislation that says if you
11 want to go into the armed services at 18 or 19
12 and you are accepted and you get caught under
13 the provisions of this law, these are the things
14 that we're going to do to our youngsters to tell
15 them that they are not responsible.
16 But they were responsible when
17 the time came; and again it could happen, who
18 knows, that these same people of this age might
19 be asked to fight another war, and this is what
20 we're going to impose upon these children.
21 I urge everybody in this chamber
22 to vote against this terrible legislation, which
23 I feel is a terrible affront to anybody that
9411
1 ever served in the armed service of this country
2 during the major wars and to anybody who might
3 in the future.
4 I vote no.
5 ACTING PRESIDENT WRIGHT: Senator
6 Dollinger.
7 SENATOR DOLLINGER: I have a
8 question for Senator DeFrancisco, but he is
9 departed. I will waive, Mr. President.
10 ACTING PRESIDENT WRIGHT: Read
11 the last section.
12 SENATOR LEVY: To explain my
13 vote, Mr. President.
14 THE SECRETARY: Section 14. This
15 act shall take effect on the first day of
16 November.
17 ACTING PRESIDENT WRIGHT: Call
18 the roll.
19 (The Secretary called the roll.)
20 ACTING PRESIDENT WRIGHT: Chair
21 recognizes Senator Levy to explain his vote.
22 SENATOR LEVY: Yes, Mr.
23 President. As we all know, in this state young
9412
1 people from 16 are eligible and, in fact,
2 operate motor vehicles in different parts of
3 this state. In the 27 states that have enacted
4 this law, fatalities involving young people
5 under the age of 21 where they've killed
6 themselves or killed someone else has dropped by
7 one-third, and this group 16 through and
8 including 20 is involved in double, better than
9 double the number of fatalities in comparison to
10 the total number of registered operators of
11 motor vehicles between the ages of 16 and
12 including 20. That is the reason that we're
13 doing this legislation, to save lives and to
14 save serious maiming injuries.
15 ACTING PRESIDENT WRIGHT: Senator
16 Kuhl to explain your vote.
17 Senator Dollinger to explain your
18 vote.
19 SENATOR DOLLINGER: Mr.
20 President, just to explain my vote.
21 Senator Levy couldn't have said
22 it better. This will save lives. I also reject
23 Senator DeFrancisco's -- I would have asked him
9413
1 a question if he was here -- his comparison that
2 we're treating a class of people -- we're
3 assuming that they are irresponsible.
4 We're not assuming that they are
5 irresponsible. We're not assuming they're an
6 irresponsible class. We're simply saying that
7 if you are 18, 19 years old and you have that
8 glass of wine at home, you better think twice or
9 three times before you get behind the wheel of a
10 car because the blood alcohol content will be
11 much lower. That will send a message that they
12 need to be a little bit more responsible
13 because, as Senator Levy points out, in this age
14 group, this is where most of fatalities occur.
15 It is simple social science.
16 We've got the facts to support it. This is a
17 good bill. It will save lives in this state;
18 and, frankly, one of the reasons why I'm going
19 to vote for it because my 16-year-old may be one
20 of them.
21 ACTING PRESIDENT WRIGHT: Senator
22 Dollinger in the affirmative.
23 Senator DiCarlo to explain his
9414
1 vote.
2 SENATOR DiCARLO: Thank you, Mr.
3 President. You know, let's change the laws in
4 this state and say that if we were being honest
5 with ourselves that you did not reach the age of
6 adulthood until 21. Let's change the laws in
7 this state to say that you can't be drafted
8 until you are 21 or enter the armed services.
9 Let's say in the State of New York, you can't be
10 married until you're 21.
11 Let's be honest with ourselves
12 and let's stop playing games with this and
13 singling out a lot of innocent people who are
14 not breaking the laws, who are not a danger to
15 society. If we did that, if we made this law
16 across the board for all people in the state of
17 New York, not just singling out some people who
18 are not represented in this chamber, I would
19 support it.
20 If you said you had a blood
21 alcohol level of .02 and that was against the
22 law to drive in this state, then I would support
23 this bill. But it's wrong to say that these
9415
1 individuals 18 to 21 who can do everything else
2 in the state of New York legally but it's
3 somehow a sin to have a glass of wine on an
4 occasion at home, it's somehow wrong when it's
5 right for everybody else in this state is just
6 bad legislation, and I think we're all kidding
7 ourselves here.
8 I vote no.
9 ACTING PRESIDENT WRIGHT: Senator
10 DiCarlo in the negative.
11 Senator Solomon.
12 SENATOR SOLOMON: Thank you, Mr.
13 President. To explain my vote.
14 SENATOR SOLOMON: I originally
15 voted against raising the drinking age to 21
16 until we had a gun put to our head by the Reagan
17 Administration, which, in fact, said we were
18 going to lose $400 million in state aid unless
19 the state of New York raised the drinking age.
20 But I want to point out as I did
21 several days ago on a piece of legislation,
22 where I had spoken about the fact that it's
23 interesting that they were going to open liquor
9416
1 stores on Sundays because of Christmas and New
2 Year's, yet in my community liquor stores are
3 closed in parts of my district every Saturday
4 during the year, yet they're not allowed to open
5 on Sundays, in addition to other Jewish
6 holidays.
7 In my community, a large part of
8 the population gets married at the age of 18,
9 and they go to weddings of even their brothers
10 or sisters or relatives at the age of 18 or 19.
11 Under this bill, they are not going to be
12 allowed to have a glass of wine at their
13 brother's wedding or their sister's wedding or
14 their relative's wedding and drive home, because
15 if they get stopped, they might fall under the
16 purview of this legislation, and I think what
17 we're doing is we're again discriminating
18 against people. And, yes, there are some
19 statistics that point to, in fact, deaths among
20 this group.
21 But, again, it's a particular
22 concern for me. Drunk driving is not a
23 particular problem in this community that I'm
9417
1 talking about; however, they fall under the laws
2 of the state of New York under these specific
3 laws if we enact this piece of legislation, and
4 it's inherently unfair to people between the
5 ages of 18 to 21.
6 I'm going to vote no.
7 ACTING PRESIDENT WRIGHT: Senator
8 Solomon recorded in the negative.
9 Continue the roll.
10 Senator Paterson, you want to be
11 recognized?
12 SENATOR PATERSON: If Senator
13 Libous would yield to me for just a second?
14 ACTING PRESIDENT WRIGHT: Senator
15 Libous yields.
16 Senator Paterson.
17 SENATOR PATERSON: We would like
18 to have a slow roll call on this issue.
19 ACTING PRESIDENT WRIGHT: A
20 request for a slow roll. Are there five? There
21 are five Senator standing.
22 SENATOR LEVY: Lay the bill
23 aside.
9418
1 ACTING PRESIDENT WRIGHT: The
2 bill is laid aside at the request of the
3 sponsor.
4 ACTING PRESIDENT WRIGHT: Senator
5 Kuhl.
6 SENATOR KUHL: Yes, Mr.
7 President. Would you call up Calendar Number
8 1078, by Senator Bruno, please.
9 ACTING PRESIDENT WRIGHT:
10 Secretary will read.
11 THE SECRETARY: Calendar Number
12 1078, by Senator Bruno, Senate Print 3219B, an
13 act to legalize, validate, ratify and confirm
14 certain actions of the city of Saratoga Springs.
15 ACTING PRESIDENT WRIGHT: We have
16 a home rule message at the desk.
17 Read the last section.
18 THE SECRETARY: Section 3. This
19 act shall take effect immediately.
20 ACTING PRESIDENT WRIGHT: Call
21 the roll.
22 (The Secretary called the roll.)
23 THE SECRETARY: Ayes 59.
9419
1 ACTING PRESIDENT WRIGHT: The
2 bill is passed.
3 THE SECRETARY: Senator
4 Hoffmann.
5 SENATOR HOFFMANN: Mr. President,
6 I was out of the chamber earlier today when a
7 vote was taken. I request unanimous consent to
8 be recorded in the negative on Calendar 128.
9 ACTING PRESIDENT WRIGHT: Without
10 objection, Senator Hoffmann will be recorded in
11 the negative on Calendar 128.
12 SENATOR HOFFMANN: Thank you.
13 ACTING PRESIDENT WRIGHT: Senator
14 Kuhl.
15 SENATOR KUHL: Yes, Mr.
16 President. Also I would like to have the record
17 reflect that I was out of the chamber yesterday
18 when Calendar Number 1248 was called and had I
19 been present, I would have voted in the negative
20 on that bill.
21 ACTING PRESIDENT WRIGHT: The
22 record shall so reflect. Senator Kuhl would
23 have voted in the negative on 1248.
9420
1 Senator Kuhl.
2 SENATOR KUHL: Mr. President,
3 could you call up Senator Velella's bill,
4 Calendar Number 702, please.
5 ACTING PRESIDENT WRIGHT:
6 Senator, if you may, I will recognize Senator
7 Montgomery first.
8 Senator.
9 SENATOR MONTGOMERY: Thank you,
10 Mr. President. I would like unanimous consent
11 to be in the negative on Calendar 963.
12 ACTING PRESIDENT WRIGHT: Without
13 objection, Senator Montgomery will be recorded
14 in the negative on Calendar 963.
15 SENATOR MONTGOMERY: Thank you.
16 ACTING PRESIDENT WRIGHT: Thank
17 you. Senator Kuhl, we will now proceed.
18 Secretary will read.
19 THE SECRETARY: Calendar Number
20 702, by Senator Velella, Senate Print 3763, an
21 act to amend the Insurance Law, in relation to
22 agent determination reporting requirements.
23 SENATOR GOLD: Explanation.
9421
1 ACTING PRESIDENT WRIGHT:
2 Explanation has been requested by Senator Gold.
3 Senator Velella.
4 SENATOR VELELLA: Yes, Senator.
5 Under the present law when an agent, an
6 insurance agent, is terminated by a company,
7 they must file a report with the state Insurance
8 Department. Some of the matters that would be
9 contained in that report are barring gross
10 negligence on the part of the reporting company,
11 fraud or a -- or fraud would -- would -
12 Let me start over again. Barring
13 fraud or a gross negligence on the part of the
14 reporting agency to the Insurance Department, we
15 would hold them harmless, the reporting agency,
16 for any comments made in that report.
17 This is done in several other
18 sections of the law. It was omitted in the
19 section in which insurance agents are terminated
20 by the company so that if they made a statement
21 that ultimately and factually become erroneous
22 in reporting it to the state Insurance
23 Department, unless there was fraud or gross
9422
1 negligence on their part, they would not be
2 liable for civil liability.
3 ACTING PRESIDENT WRIGHT: Senator
4 Gold.
5 SENATOR GOLD: Senator yield to a
6 question?
7 SENATOR VELELLA: Yes.
8 ACTING PRESIDENT WRIGHT: Senator
9 Velella, will you yield?
10 SENATOR VELELLA: Yes.
11 ACTING PRESIDENT WRIGHT: Senator
12 yields.
13 SENATOR GOLD: Senator, I just
14 wanted to clarify something, because, as you
15 know, there is a memo in support, but there's
16 also a memorandum in opposition and, basically,
17 as I understand what your bill would do, it
18 basically would set up a kind of immunity for
19 the one who makes the report similar to, for
20 example, if you made a report against an
21 attorney and the charges turned out not to be
22 founded, or against other types of professionals
23 with other licensing departments. Isn't that
9423
1 correct?
2 SENATOR VELELLA: Or similar to
3 the other provisions we have in the Insurance
4 Law, where other reports are filed with the
5 Insurance Department, and the same provisions
6 apply, yes.
7 SENATOR GOLD: Well, Senator -
8 Senator, if you will yield to one more
9 question?
10 SENATOR VELELLA: Sure.
11 SENATOR GOLD: In trying to
12 justify a yes vote in my mind, it's easier for
13 me to get outside the Insurance Law and look at
14 it from the point of view that we would be
15 treating the agents no differently than other
16 licensed kinds of individuals, where, in order
17 to protect the profession itself, you allow
18 misstatements as long as they are not gross
19 negligence or fraudulent, et cetera, et cetera.
20 That would be no different than the way we treat
21 lawyers, doctors or anybody else; isn't that
22 correct?
23 SENATOR VELELLA: If that's the
9424
1 case, Senator. I'm not sure how we treat
2 lawyers and doctors. I'm sure of what we have
3 in the Insurance Law.
4 But that is the intent so that if
5 a particular statement is erroneous, absent bad
6 faith, fraud, or malice on the part of the
7 person making that statement, they would be
8 exempt.
9 ACTING PRESIDENT WRIGHT: Read
10 the last section.
11 THE SECRETARY: Section 2. This
12 act shall take effect immediately.
13 ACTING PRESIDENT WRIGHT: Call
14 the roll.
15 (The Secretary called the roll.)
16 THE SECRETARY: Ayes 59.
17 ACTING PRESIDENT WRIGHT: The
18 bill is passed.
19 Senator Skelos.
20 SENATOR SKELOS: Mr. President,
21 can we return to reports of standing
22 committees. I believe there is a report from
23 the Finance Committee.
9425
1 ACTING PRESIDENT WRIGHT: Without
2 objection, reports of standing committees.
3 Secretary will read.
4 THE SECRETARY: Senator Stafford,
5 from the Committee on Finance, reports the
6 following nomination: Walter G. Hoefer of East
7 Quoque, Director of the Office for the Aging.
8 ACTING PRESIDENT WRIGHT:
9 Recognize Senator Stafford to move the
10 nomination.
11 SENATOR STAFFORD: Mr. President,
12 once again, I'm standing today and stating what
13 a tremendous group of nominees appeared before
14 the Senate Finance Committee today, and I am
15 pleased to say that I'm saying it again and, as
16 in the past, we have excellent nominees, and the
17 first is Walter G. Hoefer, Director of the
18 Office for the Aging, who was most impressive as
19 were all the others.
20 And I now yield to Senator
21 DiCarlo.
22 ACTING PRESIDENT WRIGHT: Chair
23 recognizes Senator DiCarlo.
9426
1 SENATOR DiCARLO: Thank you, Mr.
2 President.
3 As the chairman of the Committee
4 on Aging, I'm pleased to say that we met earlier
5 today and unanimously supported the nominee.
6 I am pleased to forward the
7 nomination of Walter G. Hoefer of East Quogue,
8 Suffolk County, for the position of Director of
9 the State Office for the Aging.
10 As chairman of the Senate Aging
11 Committee, I have had the opportunity to meet
12 with Mr. Hoefer and discuss with him his role as
13 an advocate, as a coordinator, and as a forward
14 thinker in looking out for the concerns of the
15 elderly. He's a businessman, a former county
16 assistant administrator and budget officer.
17 Mr. Hoefer has successfully
18 managed an $8 million budget with the oversight
19 of five human resource services agencies
20 including Aging, Veterans, and Criminal
21 Justice. He also has a background in many other
22 areas having impact on the senior population of
23 this state, expertise which I believe will make
9427
1 him an effective director of the State Office
2 for the Aging.
3 I am very proud to put forward
4 his name, and I would ask that you now call upon
5 Senator LaValle.
6 ACTING PRESIDENT WRIGHT: Chair
7 recognizes Senator LaValle.
8 SENATOR LAVALLE: Thank you,
9 Senator DiCarlo.
10 Mr. President, colleagues, it
11 really gives me great pleasure to rise today to
12 speak on behalf of the nominee Walter Hoefer
13 from East Quogue.
14 First, let me say, as I think
15 each of you know, that there is probably no
16 greater or important constituency than our
17 senior population, and so I think Governor
18 Pataki has named a nominee that I have known for
19 the last 19 years, who is very, very bright,
20 articulate, is very caring, and I think is a
21 good communicator.
22 For the director of the aging
23 commission -- for Office for the Aging, I can
9428
1 think of no greater skill than one who can
2 communicate with that population, understands
3 the legislative process, understands the issues
4 that we have to deal with, and I can assure you
5 will be communicating and dealing and inter
6 acting with the -- certainly the Governor's
7 Office and members of the Legislature in trying
8 to deal with the population that is so near and
9 dear to all of us.
10 So I am confident that Walter
11 will meet his responsibilities as energetically
12 as he has met all of those endeavors that he has
13 been involved with back in Suffolk County. He
14 will use his sizeable intellect in sorting out
15 the issues and how to address those issues in
16 working with all those individuals who have
17 expertise, and I am confident that together,
18 working together, that we will solve many of the
19 problems and issues that deal with the aging
20 population, and I think Walter showed today in
21 the Finance -- in the Aging Committee that he is
22 able to deal with issues and balance the needs
23 of the constituency within the fiscal realities,
9429
1 and so it's, indeed, a pleasure to speak on his
2 behalf and I might add as a footnote, I think it
3 is the first nominee to come before this body
4 that would be from Peconic County, if there was
5 such an entity, in the east end of the great
6 county of Suffolk.
7 ACTING PRESIDENT KUHL: The Chair
8 recognizes Senator Farley on the nomination.
9 SENATOR FARLEY: Thank you, Mr.
10 President. I rise to support Walter Hoefer as
11 director of the Office for the Aging.
12 If I've had an interest in
13 anything, it's been in aging legislation over
14 the years. I was the first chairman of the
15 Aging Committee and served there for eight
16 years. I find it one of the most rewarding and
17 important areas that we work in in this chamber,
18 and I certainly feel that this young man is an
19 outstanding candidate.
20 Senator LaValle, who has been my
21 classmate and came into the Senate with me,
22 spoke so highly of this nominee that it is with
23 enthusiasm that I support him for director, and
9430
1 I compliment the Governor on this excellent
2 choice.
3 ACTING PRESIDENT KUHL: The
4 question is on the nomination of Walter G.
5 Hoefer of East Quogue to become the director of
6 the Office for the Aging.
7 All in those favor of the
8 nomination, signify by saying aye.
9 (Response of "Aye.")
10 Opposed, nay.
11 (There was no response.)
12 The nominee is confirmed.
13 We're very pleased to have Walter
14 Hoefer in the chamber with us, to your left, my
15 right.
16 Director, congratulations. Good
17 luck in your job.
18 (Applause.)
19 Secretary will read.
20 THE SECRETARY: Senator Stafford,
21 from the Committee on Finance, offers the
22 following nomination: Thomas A. Maul of
23 Schenectady, Commissioner of Mental Retardation
9431
1 and Developmental Disabilities.
2 SENATOR STAFFORD: Mr. President.
3 ACTING PRESIDENT KUHL: Senator
4 Stafford.
5 SENATOR STAFFORD: Commissioner
6 Maul appeared before our committee again. He
7 appeared about a year and a half ago, was
8 unanimously approved, and again today. He's
9 been doing a very, very fine job and, as all the
10 nominees, all have difficult jobs.
11 And I yield to Senator Libous,
12 the Senator from Binghamton.
13 ACTING PRESIDENT KUHL: Chair
14 recognizes Senator Libous.
15 SENATOR LIBOUS: Thank you, Mr.
16 President, and thank you, Senator Stafford.
17 Mr. President. Tom Maul has
18 served with distinction as the Commissioner of
19 OMRDD since 1993 and has been renominated to
20 that position today by Governor George Pataki.
21 Under Tom Maul's leadership,
22 OMRDD has become one of the most efficient and
23 effective agencies in the State of New York.
9432
1 OMRDD has improved the quality of care for
2 thousands of persons with mental retardation and
3 developmental disabilities by bringing them back
4 into contact with friends, family members and
5 their communities.
6 In addition to revitalization of
7 the service and the philosophy of this agency,
8 Commissioner Maul has also been responsible for
9 instituting measures that have saved our state
10 taxpayers million dollars.
11 I can go on and on and tell you
12 about the accomplishments of Tom Maul, and I can
13 read them from a list that is quite lengthy, but
14 I want to tell you how I know Tom Maul and how I
15 am so pleased that Governor Pataki has
16 renominated him.
17 You know, until you actually work
18 with a family who has a child or a relative with
19 a mental or physical disability, you really do
20 not know what type of lifestyle that they have
21 to go through, you don't know the kind of
22 sometimes difficult situations they go through
23 in trying to find help and relief for their
9433
1 loved one who is mentally retarded or who is
2 physically disabled.
3 You know, I said this on the
4 floor about a week ago. Those of us who get up
5 every morning and we just come to work, we kind
6 of take things for granted. We don't often just
7 pause to think about people with mental or
8 physical disabilities who maybe can't get up as
9 easy as we can or just walk into this chamber on
10 their own.
11 Tom Maul -- I have seen him
12 display the kind of warmth and sincerity that a
13 Commissioner needs to do in going out into the
14 community and taking sometimes very hostile
15 environments, where the citizens of our state
16 sometimes don't often understand the kinds of
17 programs we may be putting into the community,
18 and at the end of that meeting, after Tom Maul
19 spends time in speaking to both the citizens and
20 the parents, it's funny how all of a sudden that
21 project works, that project becomes a reality,
22 because this man has just a keen ability to pull
23 all types of people together.
9434
1 And, Mr. President, that's the
2 kind of person we needs to continue in OMRDD as
3 the Commissioner, because it is a very sensitive
4 area. It is an area that requires an individual
5 of very strong leadership, and one that can pull
6 all types of people together so that those
7 people with mental retardation and physical
8 disabilities can live as normal a life as you
9 and I.
10 Mr. President, it is indeed an
11 honor and a privilege to move the nomination of
12 Tom Maul for Commissioner of this office.
13 ACTING PRESIDENT KUHL: Chair
14 recognizes Senator Farley on the nomination.
15 SENATOR FARLEY: Thank you, Mr.
16 President. It is a pleasure for me to get up
17 and move the nomination of Thomas Maul, my
18 constituent and neighbor in Schenectady and
19 somebody who has had 30 years of superb public
20 service.
21 My friend and seat mate and
22 neighbor here, Tom Libous, has spoken so highly
23 of this man and the job that he's done for the
9435
1 people of the state of New York, particularly
2 those with disabilities. He has won awards and
3 served his profession as well as anybody that I
4 think that has ever come before us.
5 It is with a great deal of
6 pleasure and honor that I move his nomination,
7 and I urge the support of Thomas Maul to
8 continue in a job that he has so superbly done
9 over the years.
10 ACTING PRESIDENT KUHL: Senator
11 Spano on the nomination.
12 SENATOR SPANO: Thank you, Mr.
13 President. It's my pleasure to join with my
14 colleagues in seconding the nomination of Tom
15 Maul.
16 When he was first appointed just
17 a little over a year ago by the previous
18 governor, he was confirmed by the members of
19 this Senate in just about 24 hours, because we
20 recognized that he is someone who has served for
21 close to three decades in OMRDD, has been
22 involved in that agency from the days when we
23 had the rigid institution-like settings of
9436
1 Willowbrook, has seen the dismantling of those
2 type of facilities, and has been a part of that
3 agency and has been a part of the change of
4 building the community-based system of care all
5 across this state; most notably, working in
6 making sure that items like the Medicaid waiver,
7 which are so important, have been secured to
8 give us the maximum flexibility in spending the
9 dollars that we have.
10 So he is a person who is held in
11 high esteem by the advocates, by the people we
12 serve, by the members of this house, and it's my
13 pleasure, Mr. President, to join in the second
14 of the nomination of Tom Maul.
15 ACTING PRESIDENT KUHL: Senator
16 Stachowski on the nomination.
17 SENATOR STACHOWSKI: I also rise
18 to second the nomination of Tom Maul.
19 It's been a pleasure since he's
20 been the head of the Department to work with him
21 on the different issues, and I only wish that
22 some of the people who work for him in the field
23 had the same cooperative attitude and sense of
9437
1 how to deal with the community that he has.
2 I think that the fact that this
3 Governor's appointing Tom Maul after he was just
4 appointed by the other governor speaks for
5 itself as far as his qualifications go. I would
6 be remiss if I didn't get up and second anybody
7 who is as big a fan of the Buffalo Bills as Tom
8 Maul, so, obviously, the man has great taste and
9 good judgment also.
10 ACTING PRESIDENT KUHL: Senator
11 Larkin on the nomination.
12 SENATOR LARKIN: Thank you, Mr.
13 President. I don't want to rehash what's been
14 said here, but, you know, Tom Maul is the type
15 of an individual that when you call him up, he
16 doesn't wait five days or six days to call you
17 back. He not only calls you back, but he has
18 the party that you have been dealing with in a
19 conference call.
20 He is very responsive. We have
21 had many incidents that have arisen in our
22 district in the last four years, and I can tell
23 you that Tom has personally put himself into the
9438
1 middle of the project to insure that the
2 individuals that are going to be benefited by it
3 and those in the surrounding communities receive
4 a fair treatment, and his concern has always
5 been for that individual less fortunate than
6 some of us, and I tell you that we're very
7 fortunate in this state to have someone like Tom
8 Maul, and I am honored to second it.
9 ACTING PRESIDENT KUHL: The
10 question is -- excuse me. Senator Holland on
11 the nomination.
12 SENATOR HOLLAND: Mr. President.
13 I'm happy to second the nomination of Tom Maul
14 also. In the number of years I have known Tom,
15 I know he is very competent, does an absolutely
16 great job, and I echo what Senator Larkin says.
17 He is always available. He always returns your
18 call. He always works with you, and not only do
19 I know that but the groups in Rockland County he
20 supports, such as the ARC and Venture, know that
21 as well, and they support him and have been
22 supporting him all along.
23 It is my pleasure to second your
9439
1 nomination, Thomas.
2 ACTING PRESIDENT KUHL: Is there
3 any other Senator wishing to speak on the
4 nomination?
5 (There was no response.)
6 Hearing none, the question is on
7 the nomination of Thomas A. Maul of Schenectady,
8 New York, to become the Commissioner of Mental
9 Retardation and Developmental Disabilities.
10 All in favor of the nomination,
11 signify by saying aye.
12 (Response of "Aye.")
13 Opposed, nay.
14 (There was no response.)
15 The nominee is confirmed.
16 Commissioner Maul is joining us
17 here in the chamber.
18 Commissioner, congratulations and
19 good luck in your job.
20 (Applause.)
21 Secretary will read.
22 SENATOR LEICHTER: Mr. President.
23 ACTING PRESIDENT KUHL: Senator
9440
1 Leichter, why do you rise?
2 SENATOR LEICHTER: Mr. President,
3 may I have unanimous consent to be recorded in
4 the negative on Calendar 241.
5 ACTING PRESIDENT KUHL: Without
6 objection and hearing no objection, Senator
7 Leichter will be recorded in the negative on
8 Calendar Number 241.
9 Senator Leichter.
10 SENATOR LEICHTER: Mr. President,
11 could I also ask the record to reflect that
12 yesterday, on Calendar 1250, I was out of the
13 chamber when this bill passed on a fast roll
14 call. If I had been here, I would have asked to
15 be recorded in the negative.
16 ACTING PRESIDENT KUHL: Senator
17 Leichter, the record will reflect that you were
18 not in the chamber yesterday when the roll call
19 was called on Calendar Number 1250 but, had you
20 been here, you would have voted in the negative.
21 Secretary will read.
22 THE SECRETARY: Senator Stafford,
23 from the Committee on Finance, offers the
9441
1 following nomination: Jean Somers Miller of
2 Albany, Commissioner of Alcoholism and Substance
3 Abuse Services.
4 ACTING PRESIDENT KUHL: Senator
5 Stafford, on the nomination.
6 SENATOR STAFFORD: Thank you, Mr.
7 President.
8 Jean Somers Miller appeared
9 before us today, and I'm sure that she, as her
10 predecessors have done, add a great deal of life
11 into many, many years. In this day and age when
12 we're very interested in adding years onto life
13 -- and I'm not against that at all. In fact, I
14 have been an advocate. But on the other hand,
15 Commissioner Miller will be dealing with
16 individuals who will be receiving that life they
17 have lost.
18 Commissioner Miller has been
19 counsel to the Division of-- what's the name of
20 it? -- Alcoholism and Substance Abuse.
21 Ever since F.D.R., you get
22 confused with all these names and letters so you
23 have to make sure.
9442
1 But on a serious note, this
2 division, I'm sure, will do a great deal under
3 Commissioner Miller as it has in the past. She
4 is well educated and, as she mentioned, she in
5 later years decided to go to school, and I think
6 that's to be complimented. She, obviously, has
7 a law agree being a counsel.
8 But I would finally say that in a
9 very, very complex field it's always refreshing
10 for someone to say, "I will get you the answer,"
11 because there are many times -- and it's
12 important that we know how to get the answer,
13 and she has proven that she does.
14 And, with that, I yield to the
15 Senator from the north, Senator Wright.
16 SENATOR WRIGHT: I thank my
17 colleague from the North Country.
18 ACTING PRESIDENT KUHL: Chair
19 recognizes Senator Wright on the nomination.
20 SENATOR WRIGHT: Mr. President,
21 I'm pleased to rise as chair of the Senate
22 Committee on Alcoholism and Substance Abuse in
23 support of the nomination of Jean Miller as
9443
1 Commissioner.
2 New York State boasts one of the
3 largest and most advanced treatment systems
4 within the nation. New York State is currently
5 going through a consolidation of the alcohol and
6 substance abuse fields and will be moving ahead
7 on the issues of consolidating licensure,
8 consolidating credentials.
9 In this budget that we adopted
10 upon the recommendation of the Governor and
11 yesterday we passed legislation in this house
12 establishing the need for a study on the
13 effectiveness of the treatment programs that
14 will be conducted over a multi-year period and,
15 equally important, within this budget and
16 supported by the Governor and this house, we're
17 establishing an intensive treatment program at
18 the Willard facility that is very unique and may
19 serve well as a national model in terms of the
20 coordination of the alcohol treatment agency,
21 Corrections and Parole.
22 For all of those reasons, the
23 position of Commissioner is one of challenge in
9444
1 the next upcoming years and, as a result, we
2 need to bring to that agency someone who has the
3 experience and the background of having worked
4 in that agency. In Jean Miller the Governor has
5 found an individual. Jean has served as counsel
6 within the agency, has served as chief counsel.
7 She has also served as the Deputy Executive
8 Commissioner and since January of this year,
9 upon the designation of the Governor, has been
10 serving as the Acting Commissioner.
11 I think you can all see that on
12 the basis of that kind of background and
13 experience, she is eminently qualified to serve
14 in the role of Commissioner. I might also point
15 out for those of you who have had the
16 opportunity to review Jean's resume that she
17 also spent some time working as a staff member
18 of this house also, and so she brings that
19 background to her position also, an awareness of
20 the legislative process, if you will.
21 I have had the occasion to work
22 with Jean, both as counsel and most recently in
23 her capacity as Acting Commissioner. She has
9445
1 been extremely responsive to our concerns and
2 needs. As a result, I want to extend my
3 congratulations. I think Jean -- and I look
4 forward to her leadership and guidance -
5 exemplifies the bipartisan and professional
6 nature of the nominees that Governor Pataki has
7 recommended.
8 I'm very pleased to move the
9 nomination of Jean Miller for Commissioner of
10 Alcohol and Substance Abuse Services.
11 Thank you.
12 ACTING PRESIDENT KUHL: Chair
13 recognizes Senator Libous on the nomination.
14 SENATOR LIBOUS: Thank you, Mr.
15 President. I, too, rise to second the
16 nomination of Jean Miller.
17 My colleague and chairman of the
18 Alcoholism and Drug Abuse Committee, Senator
19 Wright, talked about Jean Miller's qualifica
20 tions and the kinds of things that it will take
21 to lead this agency over the coming years, but
22 Jean Miller said in the Finance Committee that
23 she came to the agency in 1989 and I, too, came
9446
1 to the Senate that year and became chairman of
2 this committee, and I can tell you that I had
3 the pleasure of working with her as counsel and
4 crafting a number of different things, including
5 the famous consolidation or merger of the two
6 agencies that at times got a little hectic from
7 the different people and the different groups
8 that we worked with. We also worked together in
9 crafting what we call the famous accountability
10 measures and bills to help correct some of the
11 flaws in the system at that time.
12 So, Mr. President, I think that
13 the Governor, once again, as mentioned earlier,
14 has picked an outstanding nominee to lead this
15 agency, and I just want to stand here and say
16 that I second this nomination.
17 ACTING PRESIDENT KUHL: Chair
18 recognizes Senator Volker on the nomination.
19 SENATOR VOLKER: Mr. President, I
20 also want to second the nomination of Jean
21 Somers Miller.
22 As Senator Padavan and I were
23 just discussing here, Senator Padavan was a long
9447
1 time chairman of Mental Hygiene through the '70s
2 and the '80s, into the early '80s, and I was his
3 -- the chairman of the Subcommittee on
4 Alcoholism until the subcommittee was, of
5 course, abolished when the new full committee
6 took over, and I have always had an immense
7 interest in the alcohol and drug area, and I
8 know of Jean's work in furthering the battle
9 against alcohol and drugs, and I would
10 especially like to thank her -- and Senator
11 Wright, rightfully, mentioned the issue of the
12 Willard -- former Willard Psychiatric Center,
13 that now is going to become the center of
14 alcohol and drug treatment for inmates in this
15 state, and I would like to, as I did in the
16 committee when she was sent to the floor, thank
17 her for the work that she did during the
18 negotiations with the Senate, the Assembly, and
19 the Governor on dealing with the Willard issue,
20 on the sentencing issue, and Jean and her staff
21 was extremely helpful.
22 This is a delicate matter, and
23 one I think is -- as Senator Wright said, that
9448
1 hopefully will set a standard for the country in
2 dealing with drug and alcohol addicted inmates.
3 So my congratulations to the
4 Governor for making such a fine appointment.
5 I wish you the best of luck, and
6 I know that you will do the job in the same
7 efficient manner that you have done in the
8 past. Good luck.
9 ACTING PRESIDENT KUHL: Senator
10 Oppenheimer on the nomination.
11 SENATOR OPPENHEIMER: Much has
12 been said of Jean Miller's competence and
13 capability in this position to which she is
14 being -- for which she is being nominated.
15 I would just like to mention
16 another facet, which is Jean is a very hard
17 worker, a very sincere human being who devotes
18 herself to her programs and her projects with
19 100 percent effort and, in addition, I know her
20 as a friend for many years, and she is a woman
21 who is sincere, rounded and a person who is
22 trustworthy and a very fine human being, and I'm
23 proud to be here to support her nomination.
9449
1 ACTING PRESIDENT KUHL: The
2 question is on the nomination of Jean Somers
3 Miller to become the Commissioner of Alcoholism
4 and Substance Abuse Services.
5 All those in favor of the
6 nomination, signify by saying aye.
7 (Response of "Aye.")
8 Opposed, nay.
9 (There was no response.)
10 The nominee is confirmed.
11 We're very pleased to have Jean
12 Somers Miller with us in the chamber.
13 Congratulations, Jean. Good luck
14 in your job.
15 (Applause.)
16 SENATOR STAVISKY: Mr.
17 President.
18 ACTING PRESIDENT KUHL: Senator
19 Stavisky, why do you rise?
20 SENATOR STAVISKY: Without
21 objection, may I be recorded in the negative on
22 Calendar Number 241.
23 ACTING PRESIDENT KUHL: Without
9450
1 objection. Hearing no objection, Senator
2 Stavisky will be recorded in the negative on
3 Calendar Number 241.
4 The Secretary -- the Secretary
5 will read.
6 THE SECRETARY: Senator Stafford,
7 from the Committee on Finance, offers the
8 following nomination: James W. McMahon of
9 Ballston Lake, Superintendent of State Police.
10 ACTING PRESIDENT KUHL: The Chair
11 recognizes Senator Stafford on the nomination.
12 SENATOR STAFFORD: Mr. President,
13 it's a pleasure to yield to the Majority Leader
14 who will move the confirmation of Superintendent
15 McMahon who has done a tremendous job. He
16 appeared before our committee for the second
17 time.
18 I yield to Senator Bruno.
19 ACTING PRESIDENT KUHL: Senator
20 Bruno, on the nomination.
21 SENATOR BRUNO: Thank you very
22 much, Senator Stafford.
23 Mr. President, my colleagues, it
9451
1 is an honor for me to stand in support of this
2 nomination of a gentleman who is as qualified as
3 the Superintendent before us.
4 He has served in the previous
5 administration. He is a true professional. He
6 puts the needs of the people ahead of his
7 personal needs. He is really representative of
8 the people, the 4,000 State Police, the people
9 that help him be effective in serving the public
10 and the people in New York State.
11 He brings credit to the force, I
12 think to the Governor that has the wisdom to
13 move this appointment and he brings credit to
14 his family and to himself and to all of the
15 people of New York State that he truly
16 represents.
17 So it's my privilege to rise in
18 support of Superintendent McMahon.
19 ACTING PRESIDENT KUHL: Senator
20 Nozzolio on the nomination.
21 SENATOR NOZZOLIO: Thank you, Mr.
22 President.
23 Mr. President, my colleagues, I
9452
1 certainly wish to echo the comments of our
2 Majority Leader, Senator Bruno, in praising the
3 qualifications of Superintendent James McMahon.
4 This is the second opportunity I
5 have had to serve on the Crime and Corrections
6 Committee when the Superintendent has come
7 before us, and in each case, I can tell you that
8 that vote is cast with a great deal of pride
9 because of the Superintendent's grasp of his
10 duty, the responsibility he shows to the people
11 of this state and his overall leadership
12 demeanor that I know is appreciated, not only by
13 members of the Legislature, but by the troops
14 who are out there serving the public day in and
15 day out placing their lives on the line because
16 I know in talking with many of them, they are
17 thrilled and have been thrilled with the
18 leadership Superintendent McMahon has shown
19 during these short 14 months of his tenure.
20 They know he is a man who has been with them and
21 is by all accounts in all of the greatest
22 respect a trooper's trooper.
23 I'm very pleased to second the
9453
1 nomination and urge my colleagues to support
2 this fine nominee and congratulate the Governor
3 for his choice of professionalism in the New
4 York State Police.
5 ACTING PRESIDENT KUHL: Senator
6 Hoffmann on the nomination.
7 SENATOR HOFFMANN: Thank you, Mr.
8 President.
9 I have had the pleasure over the
10 last 11 years of serving on the Crime and
11 Corrections Committee to come to know this
12 Superintendent and previous superintendents and
13 to have developed a working relationship on
14 behalf of my constituents, and one of the things
15 that is immediately apparent for any of us who
16 have had dealings with Superintendent McMahon is
17 that he has a true earnest interest in
18 maintaining a close relationship with local law
19 enforcement agencies. He is responsive to their
20 concerns. He recognizes the various command
21 officers across the state, greets them with
22 warmth, understands the problems they face, and
23 he has done a great deal to move the State
9454
1 Police forward as an assist mechanism for local
2 law enforcement.
3 It is this spirit of cooperation
4 that we should be fostering at the state level
5 in all aspects of government and we can be proud
6 of the leadership by Superintendent McMahon in
7 bringing this type of cooperation through the
8 State Police.
9 One of the more difficult
10 problems that the Superintendent has had to face
11 in his relatively short tenure is dealing with
12 an unfortunate persecution complex that some
13 members of the media have lodged against the
14 State Police. We might like to forget about it,
15 but it has become a source of ongoing concern
16 and suspicion in -- in some media outlets in the
17 state that there have been problems within the
18 past in the State Police due to only a couple of
19 individuals, but yet virtually everything the
20 State Police do today -- the State Police as an
21 entity does today can be greeted with some
22 suspicion by people who would like to make it
23 their issue to find some wrongdoing, and yet
9455
1 Superintendent McMahon has handled this with
2 remarkable aplomb. He has been totally
3 guileless, willing to speak candidly, openly, to
4 answer questions. He clearly has nothing to
5 hide and he is willing to show the utmost
6 respect for the men and women within the ranks
7 of the State Police and to very calmly and
8 sensibly explain the operations of the State
9 Police to those who are willing to listen.
10 So I continue to be very proud of
11 the job that he has done. He is truly a
12 leader. If leading by example is what we should
13 aspire to in law enforcement, then he stands as
14 an excellent example of what every law
15 enforcement official should be today. So I'm
16 pleased also to support the nomination of
17 Superintendent McMahon for continued tenure as
18 Superintendent of the State Police.
19 ACTING PRESIDENT KUHL: Senator
20 Larkin on the nomination.
21 SENATOR LARKIN: Mr. President, I
22 proudly rise to second the nomination of James
23 McMahon as Superintendent of State Police.
9456
1 My association with the
2 Superintendent goes back to the time he was his
3 own lieutenant in Monroe, New York, which is now
4 my district and at the time I was a town
5 supervisor with a very small police department
6 and not very well trained. I went to see Jim
7 McMahon and I said I had a problem. He didn't
8 try to figure out how to get around it. He
9 said, Let's sit down. Let's discuss it. We sat
10 around and reorganized the police department
11 which is now considered one of the best in the
12 counties, and all the officials that have dealt
13 with him, whether they be from the military at
14 West Point where he had tremendous responsibil
15 ities, and the Secret Service that are stationed
16 at Stewart, their comments were always of the
17 highest order.
18 He's a team player. He wants to
19 cooperate. He wants to assist. He wants law
20 enforcement to be the most respected that it can
21 be. In my area, they tell me, Jim McMahon is a
22 trooper's trooper.
23 I'm very proud to stand here and
9457
1 second the nomination of an individual extremely
2 qualified by his training and his experience and
3 commitment to the public safety of the people of
4 the state of New York.
5 ACTING PRESIDENT KUHL: Senator
6 Volker on the nomination.
7 SENATOR VOLKER: Mr. President,
8 it's certainly all been said, I guess, but I
9 want to give my endorsement of Jim who I have
10 known for many, many years.
11 In the administration of the
12 previous superintendent, Jim was sort of the
13 nuts and bolts and, as has been mentioned, I
14 think by Senator Hoffmann, one of the things
15 that Jim was asked to do by Tom Constantine was
16 to go out and try to get better relationships
17 with local departments, and having come from a
18 local department in the -- in days gone by,
19 there was a lot of problems with not only local
20 departments, but even more so with sheriff's
21 departments and as Jim McMahon knows well, one
22 of the areas where there's been a problem is my
23 own area of Buffalo where the sheriff's
9458
1 department and State Police sometimes, shall we
2 say, disagreed a little bit, but Jim was one of
3 the people who was dispatched to various places
4 to try to iron out problems and to try to
5 rationally come up with solutions to law
6 enforcement problems. Probably was more
7 successful than anybody I know of because he was
8 so well respected by not only the State Police
9 themselves, but also by the other law
10 enforcement officers who realized immediately
11 that he was a person who was more interested in
12 the integrity of the job and in solving problems
13 than he was in showing his own importance.
14 There's no question that he is
15 considered to be a trooper's trooper. I have
16 always said that -- and I guess having come from
17 a family -- my father once told me the story
18 that he and Malcolm Wilson went to the then
19 Governor Thomas E. Dewey and said to the
20 Governor during a fiscal crisis when the
21 administration was in the process of cutting the
22 State Police and limiting their salaries, and my
23 father said to Tom Dewey, "Look, either pay them
9459
1 or disband them and you're not going to disband
2 them, so you might just as well pay them" and,
3 of course, he did and the State Police as the
4 saying goes, the rest is history.
5 Probably the finest law
6 enforcement organization, I believe, in the
7 country, certainly the finest State Police
8 organization, and we're proud -- I am proud to
9 say that I know Jim McMahon as my friend and
10 that I know him as an excellent Superintendent.
11 The Governor couldn't have picked a better
12 gentleman than Jim McMahon, and I wish you the
13 best of luck in the future, Jim.
14 ACTING PRESIDENT KUHL: Senator
15 Farley on the nomination.
16 SENATOR FARLEY: Thank you, Mr.
17 President.
18 I rise to support the nomination
19 of Jim McMahon from Saratoga County and Ballston
20 Lake, even though I have the town of Ballston -
21 Senator Bruno and I share that county, whose
22 constituent he is, he's Senator Bruno's, but
23 he's very close to being mine.
9460
1 Not only that, I have heard
2 several times and it's hard to -- I don't want
3 to replow the ground that's been said about him,
4 but he's a trooper's trooper. I think I've
5 heard three or four Senators say that.
6 He is admired and respected by
7 his men and I think that's -- and his women that
8 serve in the -- one of the finest police forces
9 in the United States. I think it's a credit to
10 Jim McMahon that not only was he unanimously
11 confirmed in the other administration, but he's
12 a reappointment because of the job that he's
13 done.
14 He's an outstanding
15 Superintendent. He's a credit to the New York
16 State Police. He's been a career man who's had
17 a distinguished career and he's also a decent
18 person and a great family man with three
19 children, and it's with enthusiasm that I
20 support his nomination.
21 ACTING PRESIDENT KUHL: Senator
22 Dollinger on the nomination.
23 SENATOR DOLLINGER: Mr.
9461
1 President, I rise to second this nomination.
2 Before he was either involved in
3 a dispute between Senator Farley and Senator
4 Bruno over whose constituent he was, Jim McMahon
5 was born in the city of Rochester and raised in
6 the city of Rochester in a little neighborhood
7 called Bull's Head which is in the north part of
8 the 19th ward in the city of Rochester, and he
9 picked up his early education in the 19th Ward,
10 and I think it was a good one.
11 I would also point out that he is
12 probably among the half dozen most, in my
13 judgment anyway, celebrated graduates of Monroe
14 Community College, which is our community
15 college in Monroe County.
16 His resume, as Senator Nozzolio
17 suggests, is the height of professionalism,
18 rising from a trooper -- starting off as a
19 trooper and becoming the Superintendent. He's
20 been a role model for people in the State
21 Police. He's been a role model of public
22 servants and he will continue to be a strong
23 role model for my community in his continued
9462
1 growth and development as the Superintendent of
2 the State Police.
3 So my congratulations go out to
4 him, and I wish him well in his tenure.
5 ACTING PRESIDENT KUHL: Is there
6 any other Senator wishing to speak on the
7 nomination?
8 (There was no response.)
9 Hearing none, the question is on
10 the nomination of James W. McMahon of Ballston
11 Lake to be the Superintendent of State Police.
12 All those in favor of the nomination signify by
13 saying aye.
14 (Response of "Aye".)
15 Opposed, nay.
16 (There was no response.)
17 The nominee is confirmed.
18 The Superintendent is with us in
19 the chamber. Congratulations, Superintendent.
20 I thought there would be more people speaking,
21 but I forgot that the 65-mile-an-hour speed
22 limit had been raised -- it had been raised to
23 65.
9463
1 Congratulations.
2 (Applause.)
3 The Secretary will read.
4 THE SECRETARY: Senator Stafford,
5 from the Committee on Finance, offers the
6 following nomination: John L. Buono of
7 Castleton, Director of the Facilities
8 Development Corporation and member of the New
9 York State Medical Care Facilities Finance
10 Agency.
11 ACTING PRESIDENT KUHL: The
12 question is on the confirmation of John L. Buono
13 to be member -- a member of the state Medical
14 Care Facilities Finance Agency and also Director
15 of the Facilities Development Corporation. All
16 those in favor of the nomination signify by
17 saying aye.
18 (Response of "Aye".)
19 Opposed, nay.
20 (There was no response.)
21 The nominee is confirmed.
22 The Chair recognizes Senator
23 Bruno.
9464
1 SENATOR BRUNO: Mr. President,
2 can we at this time return to the controversial
3 calendar.
4 ACTING PRESIDENT KUHL: The
5 Secretary will read the controversial calendar.
6 THE SECRETARY: Calendar Number
7 1097, by Senator Tully, Senate Print 3848, an
8 act to amend the Environmental Conservation Law
9 and State Finance Law, in relation to enacting
10 the Voluntary Remediation Act of 1995.
11 SENATOR OPPENHEIMER:
12 Explanation, please.
13 ACTING PRESIDENT KUHL: Senator
14 Tully, an explanation of Calendar Number 11...
15 excuse me, 1097 has been asked for by Senator
16 Oppenheimer.
17 SENATOR TULLY: Yes, Mr.
18 President. This legislation amends the
19 Environmental Conservation Law by adding a new
20 Title 14 to Article 27. It establishes a
21 voluntary remediation program within the
22 Department of Environmental Conservation.
23 SENATOR OPPENHEIMER: Would the
9465
1 Senator please yield for a question?
2 ACTING PRESIDENT KUHL: Senator
3 Tully, do you yield to Senator Oppenheimer?
4 SENATOR TULLY: Yes, Mr.
5 President.
6 ACTING PRESIDENT KUHL: The
7 Senator yields.
8 SENATOR OPPENHEIMER: I don't
9 understand, Senator Tully, why this is
10 necessary, because the DEC already has the legal
11 authority to enter into agreements with private
12 parties for the -- for remediation of these
13 inactive hazardous waste sites, so I'm
14 questioning what's the need for this? Doesn't
15 it already exist, the opportunity for DEC to do
16 this?
17 SENATOR TULLY: Mr. President,
18 this deals particularly with sites that do not
19 pose an imminent danger to the public health or
20 the environment and only they can take part in
21 this remediation program. Presently, 20 other
22 states have implemented this type of legisla
23 tion, voluntary cleanup programs, including
9466
1 Massachusetts, Connecticut, New Jersey, Indiana
2 and Ohio.
3 SENATOR OPPENHEIMER: Thank you,
4 Senator.
5 I'm still not certain why -- why
6 it's necessary, because I believe it is also -
7 it's already possible under the DEC's legal
8 authority, but let me ask you another question.
9 ACTING PRESIDENT KUHL: Senator
10 Tully, do you continue to yield?
11 SENATOR TULLY: Yes, Mr.
12 President.
13 ACTING PRESIDENT KUHL: The
14 Senator continues to yield.
15 SENATOR OPPENHEIMER: Why should
16 someone who has contaminated their property be
17 held exempt from all future liability as long as
18 they participate in this voluntary cleanup
19 program?
20 SENATOR TULLY: This basically
21 applies, Mr. President, to situations dealing
22 with "brownfield" type operations where there
23 might have been an industrial area previously
9467
1 used with contamination and subsequently there
2 is a new owner who had nothing to do with the
3 original contamination and this is to provide
4 and allow them to participate voluntarily in the
5 cleanup.
6 ACTING PRESIDENT KUHL: Senator
7 Oppenheimer.
8 SENATOR OPPENHEIMER: Well, I
9 believe it is a lesser standard and that is not
10 being addressed.
11 Let me ask it another way. Why
12 should known polluters who voluntarily clean up
13 their property be held to the lesser standard of
14 cleanup than other polluters who are being
15 forced to comply with the laws?
16 SENATOR TULLY: That's a good
17 question, Mr. President. If they were the
18 polluters, I could understand the gravamen
19 behind the question, but since these are people
20 who have acquired it subsequent to whatever
21 alleged pollution took place, they are being
22 given this opportunity.
23 To respond further back to your
9468
1 original question, the covenant not to sue does
2 not apply to future liability to a condition or
3 to the extent of a continue that was present on
4 the site but not known to the department at the
5 time the certificate of completion was issued.
6 ACTING PRESIDENT KUHL: Senator
7 Oppenheimer.
8 SENATOR OPPENHEIMER: This
9 voluntary -- if the Senator would yield for
10 another question, please.
11 SENATOR TULLY: Yes, Mr.
12 President.
13 SENATOR OPPENHEIMER: A voluntary
14 remediation program that circumvents existing
15 hazardous waste cleanup programs, to my way of
16 thinking, the program permits a lesser standard.
17 Do you have any strong or quantifiable evidence
18 that the state or the federal Superfund program
19 has been an insurmountable obstacle to the
20 development of "brownfield" sites?
21 SENATOR TULLY: Well, currently,
22 state law, Mr. President, does nothing to
23 encourage voluntary cleanups of contaminated
9469
1 property from financial assistance to limiting
2 liability for cleanups, and I think the fact
3 remains that each and every one of us in our own
4 communities are aware of sites that deserve
5 cleanup and, in many cases, the funding is not
6 readily available to take care of that cleanup.
7 I think the fact that this legislation provides
8 for voluntary cleanup, it provides a financial
9 mechanism which allocates a quarter of a million
10 dollars from the 1986 Environmental Quality Bond
11 Act to DEC to start up the program is a
12 refreshing opportunity to preserve our
13 environment.
14 SENATOR OPPENHEIMER: Thank you,
15 Senator Tully.
16 On the bill.
17 ACTING PRESIDENT KUHL: Senator
18 Oppenheimer, on the bill.
19 SENATOR OPPENHEIMER: I think
20 most everyone would agree that the cleanup in
21 New York State of these contaminated sites has
22 moved much too slowly and, therefore, I think
23 many of us would agree that we should try and
9470
1 expedite them.
2 I think the problem with this
3 bill -- and I think that's why it has rated a
4 big three chimney stacks, which is about as bad
5 as you can get, is because of the way that it
6 has been chosen in this bill to lessen the
7 requirements for improving the quality of these
8 sites. It has lessened the environmental
9 protections on these sites and there are ways
10 that this could have been accomplished.
11 Voluntary compliance could have
12 been accomplished through other means, perhaps
13 through a tax break, perhaps through some
14 economic development source of funds. The fact
15 is that this bill chooses to do it through
16 lessening the protections of the environment and
17 I think it's unfortunate that these voluntary
18 cleanups will be held to a much lower
19 standard and -
20 ACTING PRESIDENT KUHL: Excuse
21 us, Senator Oppenheimer.
22 I want to thank you and Senator
23 Connor and the entire Senate Minority for making
9471
1 sure that a short stick is never present at the
2 podium again. We will control this chamber
3 (Laughter). There was a little giggling going
4 on in this chamber. I want to get some things
5 in order in this chamber. Please excuse the
6 interruption.
7 SENATOR OPPENHEIMER: I'm not
8 going to make any comment on lengths of things
9 anymore, but I must say that looks more like a
10 croquet mallet than it does like a -- okay.
11 Where was I?
12 I think we are rewarding the
13 polluters who now only have to remediate the
14 waste site at a much lower level and I think it
15 does harm to our environment, to our ecosystems
16 and what if, Lord forbid, the property use
17 changes from being commercial to being
18 residential, in which case, the cleanup -- the
19 earlier cleanup will have been totally
20 inadequate.
21 We support the idea that DEC
22 produce a voluntary -- voluntary cleanup bill
23 that will provide a degree of consistency and
9472
1 certainty that is beneficial. It would enable
2 some new cleanup money to come into the equation
3 which is essential. However, to diminish the
4 protection of human beings and of the
5 environment is atrocious and, therefore, we feel
6 this bill is very harmful and should be
7 rejected.
8 I will be voting no.
9 ACTING PRESIDENT KUHL: Senator
10 Espada.
11 SENATOR ESPADA: Would the
12 sponsor yield to a question?
13 ACTING PRESIDENT KUHL: Senator
14 Tully, do you yield to Senator Espada?
15 SENATOR TULLY: Yes, Mr.
16 President.
17 ACTING PRESIDENT KUHL: The
18 Senator yields.
19 SENATOR ESPADA: Thank you,
20 Senator Tully.
21 The bill on page 7, line 50
22 speaks to -- speaks to reasonable cost that
23 would be reimbursed to DEC for said cleanup, and
9473
1 my question is why that kind of discretionary
2 standard versus the more actual cost method of
3 reimbursing DEC?
4 SENATOR TULLY: Yes, Mr.
5 President. It's not really discretionary. If
6 you'll go further to page 8 of the bill and get
7 to line 46, "establishing the voluntary
8 remediation fund", you'll see that this program
9 requires that the owner/operator or prospective
10 operator in participating must include a
11 preliminary environmental assessment, and when
12 they enter into this agreement, part and parcel
13 of it is that it will be funded by this
14 voluntary remediation fund.
15 SENATOR ESPADA: The -- if I may,
16 Mr. President, the public involvement in this
17 voluntary program, could you explain what
18 provision has been made for -- for public
19 involvement and while we're on public
20 involvement, a related matter of notice to the
21 public, if you would, please?
22 SENATOR TULLY: The Department is
23 required to publish a notice requesting comments
9474
1 on any proposed remedial plan in the
2 Environmental Notice Bulletin, and this gives
3 the Department authority to hold a public
4 meeting if it finds that the comments received
5 raise substantive and significant issues
6 relating to the adequacy of the proposed
7 remedial plan.
8 Basically, Senator Espada, the
9 thrust behind this legislation is the fact that
10 there are many, many small towns in our state
11 that are losing jobs and population and when we
12 lose our competitive edge, so does the rest of
13 our state, and this is due, in no small part, to
14 the abandonment of previously used commercial
15 and industrial property which may contain
16 environmental contamination.
17 SENATOR ESPADA: Mr. President,
18 if we could continue for one more question.
19 ACTING PRESIDENT KUHL: Senator
20 Tully, do you continue to yield?
21 SENATOR TULLY: Yes, Mr.
22 President.
23 ACTING PRESIDENT KUHL: The
9475
1 Senator continues to yield.
2 SENATOR ESPADA: Senator Tully,
3 we're certainly cognizant and very appreciative
4 of your comments with respect to smaller towns,
5 but large inner city communities with industrial
6 sites, particularly my own. I represent an area
7 that has 40 waste stations, an incinerator,
8 medical waste plant, and I can go on.
9 The issue of lessening or
10 lowering of standards is of tremendous concern,
11 because this bill would set up a standard that
12 relies on the pre-release conditions on
13 relations -- on the proposed use rather than
14 some objective standards that take in nearby
15 uses, like, i.e., residential communities, so
16 the concern here is that if we rely on the
17 standards inherent in this bill, that they will,
18 in fact, be, if not a lessening of standards,
19 certainly we will ignore nearby uses and, in
20 particular, residential neighborhoods.
21 SENATOR TULLY: Thank you,
22 Senator Espada, and that's a good question. The
23 use is recorded in the land reference initially,
9476
1 and if the use changes, the standard changes as
2 well.
3 SENATOR ESPADA: Thank you,
4 Senator, for his responses.
5 ACTING PRESIDENT KUHL: The
6 Secretary will read the last -- excuse me.
7 Senator Leichter.
8 SENATOR LEICHTER: Senator Tully,
9 would you please yield?
10 ACTING PRESIDENT KUHL: Senator
11 Tully, do you yield to Senator Leichter?
12 SENATOR TULLY: Yes, Mr.
13 President.
14 ACTING PRESIDENT KUHL: The
15 Senator yields.
16 SENATOR LEICHTER: It's
17 remarkable, Mr. President, when this bill
18 originally initiated, this was no opposition
19 memo from EPL. There were only memos in support
20 from the Business Council and the Conference of
21 Mayors, but one little three smoke tack memo,
22 remarkable how it peaks the curiosity of some
23 people this this chamber, and I would be
9477
1 delighted to respond to Senator Leichter.
2 ACTING PRESIDENT KUHL: The
3 Senator yields.
4 SENATOR LEICHTER: Senator, my
5 curiosity, indeed, increases the more I look at
6 the bill, and that's why I rise to ask you a
7 question and maybe you can satisfy my
8 curiosity.
9 On page 7, Section -- Section 9,
10 beginning on line 24, what is the intent and
11 what is the meaning of that provision as you
12 read it?
13 SENATOR TULLY: That's a very
14 interesting question. So far, Senator Leichter,
15 this legislative intent question is always
16 fascinating. I'm trying to get to the bottom of
17 it for you. If you'll bear with me for a
18 moment.
19 SENATOR LEICHTER: Maybe I can
20 sharpen my -- my question, if that would help or
21 I could wait until -
22 SENATOR TULLY: If you would
23 sharpen your question, that would be even
9478
1 better. You'll probably sharpen the wits of
2 those surrounding me.
3 SENATOR LEICHTER: As I read
4 this, an affected person who implements a
5 voluntary remedial program and who's subject to
6 a covenant not to sue, is he, in a sense,
7 immunized then for claims that could be brought
8 for damages that have occurred as a consequence
9 of some act of pollution, of creating this
10 hazardous site that that person would otherwise
11 be responsible for?
12 SENATOR TULLY: Mr. President,
13 the covenant not to sue does not require the
14 future liability for a condition or the extent
15 of a condition that was present on the site but
16 not known to the Department at the time the
17 certificate of completion was issued, lest the
18 burden is on the affected party to ensue -
19 ensure that all contamination on the site is
20 discovered and included in the plan.
21 ACTING PRESIDENT KUHL: Senator
22 Leichter.
23 SENATOR LEICHTER: Senator, it
9479
1 may well be, as I read the consequence of a -
2 the covenant not to sue that we're giving
3 protection to the affected person for claims,
4 not by the Department. I have no problem if the
5 Department or the state of New York says,
6 "Listen, you voluntarily clean this up
7 according to a plan we approved, we're not going
8 to go after you. We're not going to sue
9 you." But you seem to go beyond that. You seem
10 to be taking away the rights of third persons,
11 of you and me, to sue for damages that have
12 occurred or to seek contribution and, frankly,
13 that troubles me.
14 SENATOR TULLY: I understand your
15 concern, Senator Leichter, and I might indicate
16 to you that you're fully familiar with the
17 provision in law that everyone has the right to
18 alienate their property, and if the property has
19 been examined, if an existing condition has been
20 corrected through voluntary remediation and if
21 the Department issues to the affected party a
22 certificate of completion and a covenant not to
23 sue, both of these are definitely transferable
9480
1 when you alienate the property and that's as it
2 should be.
3 SENATOR LEICHTER: But the -
4 Senator, if you could continue to yield.
5 ACTING PRESIDENT KUHL: Senator
6 Tully, do you continue to yield?
7 SENATOR TULLY: I do, Mr.
8 President.
9 ACTING PRESIDENT KUHL: The
10 Senator continues to yield.
11 SENATOR LEICHTER: What I'm
12 concerned about is that now this tortfeasor may,
13 as I read this, under some circumstances at
14 least may be shielded from being sued for the
15 wrongs that he did.
16 SENATOR TULLY: No, no. I think
17 there is a misunderstanding there, Senator
18 Leichter. If some new incident arises to create
19 a new contamination, that person is not
20 shielded. In many cases, the individual who is
21 getting the certificate of completion from the
22 DEC and the covenant not to sue was not in any
23 way involved in the first instance in the
9481
1 creation of the problem. They were someone who
2 acquired the property unknowingly and didn't
3 know that this condition existed. Now they
4 volunteer to clean it up so they can utilize the
5 property, develop some type of commercial
6 commerce, develop some jobs, and after they
7 clean it up, they now get the covenant not to
8 sue and the certificate of completion and I
9 think that's exactly what the bill is about.
10 SENATOR LEICHTER: Excuse me. If
11 you'll continue to yield, Senator.
12 ACTING PRESIDENT KUHL: The
13 Senator continues to yield.
14 SENATOR TULLY: I do, Mr.
15 President.
16 SENATOR LEICHTER: Senator, I
17 understand your sympathy to the person who's an
18 innocent party, he's acquired this property, but
19 as you define "affected person," that could also
20 be the polluter. I mean, you failed to
21 distinguish between the affected -- you could
22 have used language "affected person who is
23 responsible for the condition" or "affected
9482
1 person who acquires the land or was not
2 responsible", but you give the tortfeasor the
3 same protection, and that's the problem that I
4 have.
5 SENATOR TULLY: The tortfeasor,
6 Mr. President, would have no protection
7 whatsoever unless they clean the property up,
8 unless they got the certificate of completion
9 from the DEC, meaning if they have complied with
10 all the requirements that exist under the laws
11 of this state as they relate to the DEC.
12 SENATOR LEICHTER: Well, let me
13 ask you the specific question.
14 ACTING PRESIDENT KUHL: Senator
15 Tully, do you continue to yield?
16 SENATOR TULLY: Yes.
17 ACTING PRESIDENT KUHL: The
18 Senator continues -
19 SENATOR TULLY: I might say,
20 Senator Leichter, that the suit is only barred
21 for contribution from other responsible parties
22 because the affected party has paid his share -
23 his or her share in cleaning the contamination
9483
1 up.
2 SENATOR LEICHTER: Well, let me
3 -- let me see if I can phrase a -- an example
4 of what concerns me. You have an affected
5 party, and that affected party was a tortfeasor,
6 now enters into a remedial program, completes
7 the remedial program and gets a certificate,
8 that is a covenant not to sue, however that's
9 called.
10 Somebody now brings an action
11 because either their person or their property
12 was injured, and that person sues another
13 tortfeasor or alleged tortfeasor. That alleged
14 -- other alleged tortfeasor now tries to bring
15 in the affected party.
16 As I read this bill, that cannot
17 be done because you cannot have contribution.
18 SENATOR TULLY: That is not so,
19 Mr. President, as I indicated earlier, that the
20 covenant not to sue does not apply to future
21 liability for a condition present on the site
22 but not known to the Department at the time the
23 certificate of the completion was issued. If
9484
1 they issue a certificate of completion and they
2 say that this job has been cleaned up and
3 there's no longer any problem, then the burden
4 is on the affected party to ensure all
5 contamination on the site is discovered and
6 included in the plan.
7 SENATOR LEICHTER: Mr. President
8 -- Senator Tully, I'm dealing with a condition
9 that was known to the Department. Let's say
10 some hazardous material was put in there, but a
11 person whose condition or whose injury didn't
12 manifest itself until after the implementation
13 of the plan, so it's a pre-existing condition;
14 it's not a future liability. I understand
15 future liability, but this was a pre-existing
16 condition. The Department knew that this
17 hazardous material was in there, but this
18 particular person, let's say it was asbestos or
19 something, it took seven or eight years for the
20 condition to manifest itself, now he wants to
21 sue the affected person or he wants -- or he
22 wants to sue the affected person of somebody
23 else or he sues somebody else and that third
9485
1 party wants to bring in the affected person, but
2 you seem to be shielding the affected person
3 that, in my example, the affected person is the
4 tortfeasor. Should we give that sort of
5 protection?
6 SENATOR TULLY: Yes, Mr.
7 President. This is -- this legislation, in no
8 way is to release him from liability from the
9 injured party. The ban on contribution only
10 applies once he's cleaned up so far that the
11 other responsible party pays without
12 contribution from the volunteer.
13 SENATOR LEICHTER: Well, Senator,
14 just one other question on another section, if
15 you would continue to yield, please.
16 If you would look at number 7,
17 this would seem to shield the affected party
18 while he's implementing a voluntary remedial
19 program. Nobody can sue him to compel that he
20 do any action other than as provided in the plan
21 of remediation. Even another governmental
22 agency couldn't sue him; is that correct?
23 SENATOR TULLY: That's correct,
9486
1 Mr. President.
2 SENATOR LEICHTER: Here too,
3 Senator -- I just want to ask you. Are we
4 giving -
5 ACTING PRESIDENT KUHL: Senator
6 Tully, do you continue to yield?
7 SENATOR TULLY: Yes, I do, Mr.
8 President.
9 ACTING PRESIDENT KUHL: The
10 Senator continues to yield.
11 SENATOR LEICHTER: Senator, are
12 we giving protection to the affected person that
13 really goes beyond a reasonable incentive to get
14 him to do this cleanup voluntarily?
15 SENATOR TULLY: Mr. President, I
16 can see the argument being made if it were not
17 true that 20 other states have implemented
18 voluntary cleanup programs just as this one.
19 There's been no indication from the legislation
20 that's been activated in these states that there
21 are any of the problems that you're referring
22 to.
23 SENATOR LEICHTER: Senator, I may
9487
1 just ask you on this particular point, do
2 remedial -- voluntary remediation is one thing.
3 I think we all agree that that's something that
4 should be done and, in fact, the Department
5 presently has the power to enter into a
6 voluntary remediation plan. In those 20 states,
7 do they all have the same provisions that you
8 and I have just been discussing?
9 SENATOR TULLY: Most of the 20
10 states do, I'm advised by counsel, Senator
11 Leichter.
12 SENATOR LEICHTER: Thank you very
13 much, Senator Tully.
14 SENATOR TULLY: You're welcome.
15 SENATOR LEICHTER: I have no
16 problem with an effort to try to get more
17 voluntary remediation, and obviously to get
18 something to somebody to do voluntary
19 remediation, you got to give up something. It's
20 a compromise, and I can see having some
21 inducement, having the Department give up
22 certain rights protecting the affected person,
23 even if it's the tortfeasor, from certain action
9488
1 that the state would take.
2 What I'm concerned about in this
3 particular bill is that we give a degree of
4 protection, of immunization, to the affected
5 person and the affected person is not, as
6 Senator Tully first says, always an innocent
7 party who acquired the land. It may well be the
8 tortfeasor. It may be the person who dumped
9 those chemicals on the land who failed to abide
10 by proper environmental standards. Now while he
11 does the clean-up, nobody can sue him for
12 remediation.
13 Secondly, he -- as I read this,
14 he may not be sued for contribution by somebody
15 else who's alleged to be a tortfeasor for
16 pre-existing conditions. I just think that
17 we're giving away too much. That's my problem
18 with this particular bill. You say 20 states
19 have it, but you acknowledge that at least not
20 all of them have these far-reaching provisions.
21 I think it's a question, have we
22 struck a good deal? And I would say that we
23 bend over too far. I want to get voluntary
9489
1 remediation, but I don't want to give up as much
2 as this bill gives up.
3 And, therefore, I agree with
4 Senator Oppenheimer, that it's not a wise bill
5 and I'm going to vote against it.
6 ACTING PRESIDENT KUHL: Senator
7 Paterson.
8 SENATOR PATERSON: Mr. President,
9 if Senator Tully would just yield for one
10 question.
11 SENATOR TULLY: Yes, Mr.
12 President.
13 ACTING PRESIDENT KUHL: The
14 Senator yields.
15 SENATOR PATERSON: Senator Tully,
16 a number of these -- a number of these areas lie
17 in heavily minority districts and under
18 privileged areas. With a standard such as
19 voluntary remediation, do you think that we may
20 risk the possibility of individuals who don't
21 live in the afflicted area in a sense polluting
22 the area, sort of quasi-environmental racism, so
23 to speak, and really bringing a great deal of
9490
1 harm on those particular premises that the
2 polluter may not reside or may not feel that the
3 polluter has -- the individual has any real
4 connection with the population that lives
5 there?
6 SENATOR TULLY: Thank you,
7 Senator Paterson.
8 The point to be remembered with
9 respect to this legislation, I think, is that
10 only sites which do not pose an imminent danger
11 to the public health or the environment can take
12 part in the first instance in the voluntary
13 remediation program.
14 SENATOR PATERSON: Thank you,
15 Senator.
16 ACTING PRESIDENT KUHL: The
17 Secretary will read the last section.
18 THE SECRETARY: Section 7. This
19 act shall take effect on the 90th day.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 (The Secretary called the roll.)
23 ACTING PRESIDENT KUHL: Announce
9491
1 the results when tabulated.
2 THE SECRETARY: Those recorded in
3 the negative on Calendar 1097 are Senators
4 Abate, Connor, Espada, Jones, Leibell, Leichter,
5 Markowitz, Onorato, Oppenheimer, Paterson,
6 Stachowski and Stavisky. Ayes 48, nays 12.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 Senator Leichter, why do you
10 rise?
11 SENATOR LEICHTER: I ask for
12 unanimous consent to be voted in the negative on
13 Calendar 929, please.
14 ACTING PRESIDENT KUHL: Without
15 objection, Senator Leichter will be recorded in
16 the negative on Calendar Number 929.
17 Senator Gold, I see you
18 motioning. Would you want the same request?
19 SENATOR GOLD: 1097.
20 ACTING PRESIDENT KUHL: Without
21 objection, Senator Gold will be recorded in the
22 negative on Calendar Number 1097.
23 The Chair recognizes Senator
9492
1 Wright.
2 SENATOR WRIGHT: Mr. President, I
3 request unanimous consent to be recorded in the
4 negative on Calendar Number 225, Senate 90...
5 975-B.
6 ACTING PRESIDENT KUHL: Without
7 objection, Senator Wright will be recorded in
8 the negative on Calendar Number 225.
9 The Secretary will continue to
10 call the controversial calendar.
11 THE SECRETARY: Calendar Number
12 1187, by Senator Hoblock, Senate Print 5173-A,
13 an act to amend the Criminal Procedure Law and
14 the Penal Law, in relation to the definition of
15 juvenile offender.
16 SENATOR PATERSON: Explanation.
17 ACTING PRESIDENT KUHL: Senator
18 Hoblock, an explanation of Calendar Number 1187
19 has been asked for by the Acting Minority
20 Leader, Senator Paterson.
21 SENATOR HOBLOCK: Mr. President,
22 this bill amends the Criminal Procedure Law and
23 the Penal Law and extends the definition of
9493
1 juvenile offender for the violation of certain
2 crimes to include 12- and 13-year-olds.
3 Right now, the definition of a
4 juvenile offender for certain crimes are persons
5 14 or 15 years old who are found criminally
6 responsible. This extends the certain crimes to
7 juveniles that are 12 and 13 as well as 14 and
8 15.
9 ACTING PRESIDENT KUHL: Senator
10 Paterson.
11 SENATOR PATERSON: Mr. President,
12 if the sponsor would yield.
13 ACTING PRESIDENT KUHL: Senator
14 Hoblock, do you yield to Senator Paterson?
15 SENATOR HOBLOCK: Yes.
16 ACTING PRESIDENT KUHL: The
17 Senator yields.
18 SENATOR PATERSON: Thank you,
19 Senator.
20 I don't see any great desire on
21 the part of the Law Enforcement Council to pass
22 this legislation. I was wondering, Senator
23 Hoblock, if could you tell us who was actually
9494
1 advocating to include 12- and 13-year-olds under
2 the juvenile status?
3 SENATOR HOBLOCK: This proposal,
4 Senator Paterson, came from the chief
5 administrator of the courts upon the
6 recommendations of an advisory committee on
7 criminal law and procedure following a study
8 they did on the use -- on the possession and use
9 of firearms among juveniles.
10 SENATOR PATERSON: One thing, Mr.
11 President, that I would like to point out is
12 that I prefer this type of legislation a lot
13 more to the ones that we've seen earlier where
14 we kind of unilaterally started changing
15 particular laws to include, in some cases,
16 12-year-olds and 12- and 13-year-olds, but if
17 the sponsor would yield to another question.
18 ACTING PRESIDENT KUHL: Senator
19 Hoblock, do you continue to yield? The Senator
20 continues to yield.
21 SENATOR PATERSON: In this
22 particular bill, the firearms section of the
23 bill, isn't that separate from what the rest of
9495
1 the law would allow in terms of the
2 reclassification of juvenile offender status to
3 12- and 13-year-olds?
4 SENATOR HOBLOCK: I'm not sure if
5 I understand your question, Senator Paterson,
6 but what it does do is that it amends the
7 definition of juvenile offender, then adds a
8 number of sections of the Penal Law for which
9 those 12- or 13-year-olds will be held
10 criminally responsible.
11 SENATOR PATERSON: I guess what
12 I'm really asking, Senator, is the status going
13 to be uniform?
14 SENATOR HOBLOCK: Status
15 uniform?
16 SENATOR PATERSON: In other
17 words, are 12- and 13-year-olds going to be
18 classified this way for all offenses?
19 SENATOR HOBLOCK: For those
20 listed in this bill, yes.
21 SENATOR PATERSON: Right. So
22 what I'm asking you is why do we want to do this
23 in some ways and not in others; In other words,
9496
1 where we don't have a clear standard what age it
2 is that we're going to start classifying younger
3 persons as juvenile offenders.
4 SENATOR HOBLOCK: Well, the ages
5 of 12 and 13, adding to 14- and 15-year-olds
6 which is already in the bill was as a result of
7 these studies that were done about the
8 possession and use of firearms in these
9 particular age groups.
10 I think that we -- I don't know
11 how much studying we need to do, but you pick up
12 newspapers from around this state and you find
13 that, unfortunately, 12- and 13-year-old kids
14 are carrying weapons into the classroom and
15 carrying them on the streets and in other
16 places, and it's unfortunate that this is
17 occurring, but it is occurring, and what we need
18 to do is to give the courts the necessary
19 ability to process these types of cases in this
20 age group.
21 ACTING PRESIDENT KUHL: Senator
22 Paterson.
23 SENATOR PATERSON: But, Senator,
9497
1 the point I'm trying to make is that 12- and
2 13-year-olds, even though they are engaging in
3 the vehemently anti-social behavior that you
4 have just described, they are still 12 and 13.
5 In other words, the standard by which we are
6 actually holding them to based on their -- their
7 age is one that, in spite of the fact that there
8 are increases in these types of offenses, what I
9 would like to know is where -- the research does
10 not show that 12- and 13-year-olds are any more
11 mature than they have been in the past.
12 Obviously, pretty much quite to the opposite,
13 and what I'm saying is that we're now opening
14 the door to a panoply of crime that 12- and
15 13-year-olds can be linked to 14- and
16 15-year-olds and treated as adults. By the
17 adoption of this legislation, we are going to
18 now treat them as adults, and what I'm saying is
19 does the research demonstrate that they are
20 culpable or have the requisite knowledge that we
21 should be treating them as adults?
22 SENATOR HOBLOCK: As far as I
23 know, Senator Paterson, they do. You know,
9498
1 unfortunately as has been pointed out by the
2 chief administrator, that these 12- and
3 13-year-old kids that used to settle their
4 arguments not too long ago with their fists are
5 now using knives and other types of weapons, and
6 what this legislation does, it talks about
7 criminal possession of a weapon in the third
8 degree, criminal possession of a dangerous
9 weapon in various degrees, the use of a firearm
10 in various degrees. It would seem to me that if
11 a 12- or 13-year-old child is mature enough to
12 know how to use one of these weapons to bring
13 about some criminal action, then they're old
14 enough to be tried for that particular offense.
15 ACTING PRESIDENT KUHL: Senator
16 Paterson.
17 SENATOR PATERSON: Senator, the
18 Office of Court Administration did certainly
19 recommend this to be applied to 14- and
20 15-year-olds. Now, to reach down and include
21 12- and 13-year-olds -- and again, I would tell
22 you that you are making the case and you are
23 very much defining what the problem is, but what
9499
1 I'm saying is that a proliferation of these
2 types of violent situations doesn't necessarily
3 establish to me that the individuals involved
4 have the -- the understanding of what they're
5 doing at the level that they should fully be
6 treated as a result.
7 My question to you then is do you
8 know what DFY or any of the youth agencies feels
9 about this type of legislation?
10 SENATOR HOBLOCK: No, I really
11 haven't, Senator Paterson, but let me again
12 emphasize that, you know, if they're mature
13 enough and able to handle one of these weapons
14 and bring about some kind of an assault or
15 perhaps even a death, I think that's got to be
16 dealt with and unless you have some suggestions
17 on how we can try to deter these young people
18 from picking up these types of weapons, not only
19 possessing, but using them, instead of carrying
20 on as they used to, we're seeing that that is
21 being down -- brought down into these various
22 age categories. The statistics show that the
23 leading cause of death for teenage blacks has
9500
1 been the use of these types of weapons. The
2 third leading cause for white teenagers has been
3 the use of these weapons in these age
4 categories.
5 SENATOR PATERSON: Thank you,
6 Senator.
7 On the -- Mr. President, on the
8 bill.
9 ACTING PRESIDENT KUHL: Senator
10 Paterson on the bill.
11 SENATOR PATERSON: Senator
12 Hoblock has defined a very serious problem and I
13 think his initial attempt to address it should
14 be commended.
15 What he's saying is that this is
16 a problem that's gotten out of hand and he wants
17 to address it, and I think we can all understand
18 the fact that he wants to do that.
19 What we are saying, though, is
20 that young people, unfortunately, are characters
21 of mimicry. If it's 12- and 13-year-olds today,
22 I guess we wouldn't want it to be 10- and
23 11-year-olds tomorrow, but the fact that they're
9501
1 engaging in this kind of behavior, does not
2 necessarily mean that they would be held as
3 culpable as adults. It's standard in our
4 criminal justice system and has always been
5 through the history of the implementation of
6 criminal justice punishment that we have always
7 applied the punishment to the crime and also to
8 the knowledge of the criminal at the time that
9 the crime is committed, and I think that in many
10 situations we have individuals who we are
11 saddling with harsh and inhumane penalties when
12 they really could be dealt with in our
13 correctional facilities.
14 In answer to Senator Hoblock's
15 question, I don't know that I really have the
16 answer, Senator Hoblock. I really don't know,
17 to be perfectly honest with you, but we do have
18 a new Division for Youth Commissioner, Mr.
19 Johnson. We do have a whole agency that's been
20 set up. I would be very curious to understand
21 what they think about this, what their
22 recommendations are, and I think that that would
23 be something that would be aptly incorporated in
9502
1 the research that would go into putting this
2 bill forth. We don't want to do anything that
3 is going to harden some younger people who may
4 really be off course and, in a sense, could
5 actually be saved through the correct
6 remediation, and that is the reason that I raise
7 the issue of including 12- and 13-year-olds with
8 the 14- and 15-year-olds who we now treat as
9 adults.
10 ACTING PRESIDENT KUHL: Senator
11 Leichter, why do you rise?
12 SENATOR LEICHTER: Mr. President,
13 I wanted to ask Senator Hoblock to yield,
14 please.
15 ACTING PRESIDENT KUHL: Senator
16 Leichter, I do have a list.
17 SENATOR LEICHTER: Oh, I'm
18 sorry.
19 ACTING PRESIDENT KUHL: Senator
20 Abate is next on the list.
21 SENATOR ABATE: On the bill.
22 ACTING PRESIDENT KUHL: Senator
23 Abate on the bill.
9503
1 SENATOR ABATE: First, would
2 Senator Hoblock yield to a question?
3 ACTING PRESIDENT KUHL: Senator
4 Hoblock, do you yield to Senator Abate?
5 SENATOR HOBLOCK: Yes.
6 ACTING PRESIDENT KUHL: The
7 Senator yields.
8 SENATOR ABATE: What was your
9 rationale for combining -- I mean, there are two
10 major initiatives here. One is expanding the
11 list of felonies that relate to 14- and
12 15-year-olds. Now we have arson and robberies
13 and everything else, included in that list,
14 felony possession of weapons and the use of
15 those weapons; that's one issue. And then you
16 took on another very major issue is including
17 the 12- and 13-year-olds in that eligibility
18 group. Why did you do that together? Why did
19 you see it was necessary to do that?
20 SENATOR HOBLOCK: Well,
21 originally, the bill -- because now it's an "A"
22 print, the original bill had the first scenario
23 as you described adding to the 14- and
9504
1 15-year-olds. The "A" print added the 12 and 13
2 which was an attempt to conform with Senator
3 Larkin's legislation that we spoke about I
4 believe yesterday.
5 SENATOR ABATE: Aren't you -
6 would you continue to yield?
7 ACTING PRESIDENT KUHL: Senator
8 Hoblock, do you continue to yield?
9 SENATOR HOBLOCK: Sure.
10 ACTING PRESIDENT KUHL: The
11 Senator continues to yield.
12 SENATOR ABATE: I understand and
13 there's been a lot of discussion and debate
14 around particularly 14- and 15-year-olds and
15 expanding that category. There's been some
16 debate and discussion because of the rise in the
17 use of weapons, it may be appropriate to include
18 those additional charges, but there hasn't been
19 a lot of debate and hearing -- and particularly
20 when we're looking at reforming the entire
21 juvenile justice system, aren't you in effect
22 saying let's put the 12- and 13-year-olds, now
23 treat them as adults because there's no
9505
1 possibility of reforming how DFY operates their
2 facilities; there's no place now for juveniles
3 in Family Court? Aren't you, in one fell swoop,
4 saying reform isn't doing any good, so let's
5 push all these 12- and 13-year-olds into DOCS,
6 into the adult system? Let's treat them as
7 adults because there's no hope to rehabilitate
8 them in Family Court.
9 SENATOR HOBLOCK: First of all,
10 Senator, I'm not sure about the mandate. We're
11 talking about here the definition of a juvenile
12 offender. Obviously, they've got to be
13 determined to be a juvenile offender to begin
14 with, but it would seem to me if a 12- or
15 13-year-old child today -- and let's -- I think
16 we can agree that there are a number of them
17 that are very sophisticated at 12 or 13,
18 particularly in criminal activity and there's a
19 lot of 12- or 13-year-olds that obviously are
20 not, but those that are and choose to violate
21 these particular provisions of law and, if found
22 guilty as a juvenile offender, then perhaps
23 that's what we ought to be doing.
9506
1 I mean, it's unfortunate but,
2 yes, they are becoming much more mature at an
3 earlier age today, and I think that not only -
4 I don't think we need to sit down and need to
5 have a study and go through a number of hearings
6 and testimonies and all of that. I think we
7 witness it day in and day out, and just to say
8 that we're going to take every 12- or
9 13-year-old under this piece of legislation is
10 not absolutely true. What we are going to do is
11 take those sophisticated 12- or 13-year-olds
12 that choose to commit these particular offenses
13 and are found to be juvenile offenders that,
14 yes, they will be treated accordingly.
15 SENATOR ABATE: Is the
16 rationale -
17 ACTING PRESIDENT KUHL: Senator
18 Hoblock, do you continue to yield?
19 SENATOR HOBLOCK: Yes.
20 ACTING PRESIDENT KUHL: The
21 Senator continues to yield.
22 SENATOR ABATE: Thank you,
23 Senator.
9507
1 Is the rationale for including
2 the 12- and 13-year-olds because you do not feel
3 the sentences are long enough in Family Court?
4 These individuals could get 18 months even
5 beyond that up to 21. Do you feel that the
6 sentences are not sufficient and, therefore, you
7 want them prosecuted as adults so they can spend
8 longer periods of time incarcerated? Is that
9 the philosophy behind the changes?
10 SENATOR HOBLOCK: That's part of
11 it, Senator. I think, again, if they act like
12 an adult, they ought to be treated like an adult
13 in this particular arena in criminal activity,
14 yes, and perhaps -- perhaps they could be given
15 that additional assistance if we have them
16 longer than what they should be there.
17 SENATOR ABATE: Thank you,
18 Senator.
19 On the bill.
20 ACTING PRESIDENT KUHL: Senator
21 Abate on the bill.
22 SENATOR ABATE: I would be less
23 troubled by this legislation if the two issues
9508
1 were separated out, If what we had before us was
2 the inclusion of felony possession of weapon
3 charges for 14- and 15-year-olds, but this bill
4 goes well beyond that and now is including 12
5 and 13-year-olds to be eligible as adult
6 juvenile offenders, and the problem that I have
7 is at a time when we have a statewide debate
8 around the need for juvenile justice reform, we
9 are now single-handedly taking a very critical
10 piece from that debate.
11 I think we as the Senate -
12 because I think this is a very serious issue -
13 should not deal with juvenile justice reform
14 piecemeal. This should be done comprehensively,
15 and I would like this issue to be dealt with and
16 discussed in connection with other issues.
17 Should we be fingerprinting adult -- I'm sorry.
18 Should we be fingerprinting juvenile felons?
19 Should we be looking at the sentence length in
20 the Division For Youth facilities? Is 18 months
21 enough or should we be asking if 18 months is
22 sufficient, why are young kids only doing only
23 six months? Maybe we should be looking at what
9509
1 happens in Family Court and the Division For
2 Youth facilities before we transfer the 12- and
3 13-year-olds into the adult system. We should
4 be looking and discussing supervision after
5 release from a facility. Speedy trial issues,
6 treatment issues, rehabilitation issues,
7 resources in the Family Court, resources in
8 probation, drug treatment. There are a lot of
9 issues that need to be dealt with on a law
10 enforcement end, prevention end and treatment
11 end before we separate out and do in a very, I
12 think haphazard manner, an issue so important as
13 juvenile justice reform.
14 Again, if it were dealing with
15 the existing category of 14- and 15-year-olds, I
16 think that's a reasonable debate and discussion,
17 and I think a lot of the members across the
18 aisle, both sides of the aisle would support
19 that. I think this legislation goes too far and
20 we need to look at this issue comprehensively.
21 ACTING PRESIDENT KUHL: The
22 Secretary will read the last section.
23 SENATOR LEICHTER: Mr. President.
9510
1 ACTING PRESIDENT KUHL: Senator
2 Leichter, why do you rise?
3 SENATOR LEICHTER: Yes. Would
4 Senator Hoblock yield?
5 ACTING PRESIDENT KUHL: Senator
6 Hoblock, do you yield to a question?
7 SENATOR HOBLOCK: Yes.
8 ACTING PRESIDENT KUHL: The
9 Senator yields.
10 SENATOR LEICHTER: Yes, Senator.
11 I must say, I think that Senator Abate makes a
12 lot of sense and I am concerned, frankly, that
13 you would subject 12- or 13-year-olds to being
14 treated in the Criminal Court, but I'm surprised
15 at your memo which says the chief administrator
16 of the courts was the one who made -- who made
17 this request, and I'm not -- first of all, I'm
18 not sure the title, whom you refer to. Are you
19 saying this is an OCA bill?
20 SENATOR HOBLOCK: That's correct.
21 SENATOR LEICHTER: This bill was
22 proposed by the Office of Court Administration?
23 Because I don't see their memo here.
9511
1 SENATOR HOBLOCK: Yes, that's
2 correct.
3 SENATOR LEICHTER: That this came
4 up from Judge Milonas? I just haven't seen any
5 proposal of this sort ever before by -- by OCA.
6 I would -- I certainly accept your word, if you
7 say that's what it is. It just surprises me
8 coming in this form and, frankly, I'm also
9 surprised that OCA would make a recommendation
10 of this sort.
11 SENATOR HOBLOCK: I don't have a
12 letter, Senator Leichter, with me or any kind of
13 a cover memo, but that's -- that's the -- that's
14 the genesis of this.
15 SENATOR LEICHTER: Okay. Mr.
16 President, just briefly on the bill.
17 ACTING PRESIDENT KUHL: Senator
18 Leichter, on the bill.
19 SENATOR LEICHTER: I would just,
20 frankly, be dismayed if we give up on 12- or
21 13-year-olds to the extent of saying that
22 they're mature enough to be treated in the
23 Criminal Courts. Senator Hoblock certainly
9512
1 addresses a very serious problem. I don't think
2 there's anybody here who is saying that the
3 rising tide of violence among very young people
4 isn't a serious problem or doesn't have to be
5 dealt with, but it seems to me to deal with it
6 in the context of the Criminal Court when this
7 society and most other societies have recognized
8 what I think is indisputable that there are such
9 things as children who are not held to the same
10 level and standard of conduct and maturity as
11 people who are older who, at least in their
12 upper teens or have reached the age of maturity,
13 and to think that in some way by dealing with
14 this problem through the criminal courts that
15 we're going to be able to resolve it, to my
16 mind, frankly, is mind boggling and that's why I
17 was very surprised that OCA would come up and
18 say this is the way to deal with crimes among
19 the very young.
20 I just don't think it is. I
21 don't think we can give up on these young people
22 and think that by treating them as we treat -
23 as we treat mature people and holding them
9513
1 responsible under the Criminal Law is a way to
2 deal with this problem.
3 I think we're just going to make
4 the problem worse. I think we need to bring
5 resources. We need to bring effort to help to
6 deal with these young people, but certainly
7 you're not going to find that in the Criminal
8 Courts or I think that this is just not the
9 answer to the problem that we have.
10 ACTING PRESIDENT KUHL: Is there
11 any other Senator wishing to speak on the bill?
12 Senator Montgomery.
13 SENATOR MONTGOMERY: Thank you,
14 Mr. President.
15 I wonder if the sponsor would
16 yield for a couple of questions of
17 clarification.
18 ACTING PRESIDENT KUHL: Senator
19 Hoblock, do you yield to Senator Montgomery?
20 SENATOR HOBLOCK: Yes, I will.
21 ACTING PRESIDENT KUHL: The
22 Senator yields.
23 SENATOR MONTGOMERY: Thank you.
9514
1 Senator Hoblock, does this mean
2 then that the 12- and 13-year-olds would be
3 housed with adults; is that what happens?
4 SENATOR HOBLOCK: Senator
5 Montgomery, the memo in support of this
6 legislation says juvenile weapon offenses could
7 still be initiated in Family Court, and even if
8 charges were initially brought into Criminal
9 Court, juvenile offender actions could still be
10 removed to Family Court and then the
11 disposition, sentencing as an adult in those
12 types of facilities will occur in Family Court
13 as opposed to Criminal Court.
14 SENATOR MONTGOMERY: So the case
15 could still be brought to the Family Court?
16 SENATOR HOBLOCK: The case would
17 probably be brought initially in Criminal Court
18 but could be removed to Family Court.
19 SENATOR MONTGOMERY: I see. But
20 where does the young person end up?
21 SENATOR HOBLOCK: I'm sorry?
22 SENATOR MONTGOMERY: Where does
23 the young person end up?
9515
1 SENATOR HOBLOCK: That would
2 obviously depend on what court they're in and
3 the decision of the judge.
4 SENATOR MONTGOMERY: So if the
5 court proceeds in Criminal Court, they could
6 theoretically end up in DOCS as -- as an adult
7 criminal?
8 SENATOR HOBLOCK: They would no
9 doubt be lined up in some juvenile detention
10 facility.
11 SENATOR MONTGOMERY: All right.
12 Senator Hoblock, if you would continue to yield.
13 ACTING PRESIDENT KUHL: Senator
14 Hoblock, do you continue to yield? The Senator
15 continues to yield.
16 SENATOR MONTGOMERY: It is my -
17 my impression that one of the reasons that
18 12-year-olds end up being involved in criminal
19 activity is that they're like little mules, if
20 you know what I mean, and so, therefore, they
21 are acting on behalf of or in concert with some
22 -- some adult or some older person who would be
23 subject to the law. For that reason or -- let
9516
1 me just ask if there is any law which
2 criminalizes any person or business that has a
3 young child participating in crime on their
4 behalf including a business that sells weapons,
5 would they -- would they be in any way liable if
6 a young person happens to get one of these
7 weapons, these machine guns and -
8 SENATOR HOBLOCK: Not under this
9 legislation, Senator Montgomery.
10 SENATOR MONTGOMERY: Are there
11 any legislation in this state? Do we have any
12 such law that says that if a person or if any
13 weapon is sold and ends up in the hands of a
14 12-year-old that that business is going to be
15 held liable for the use of that weapon?
16 SENATOR HOBLOCK: No more than
17 what's under current law, which I understand
18 would be contributing to the delinquency of a
19 minor or something like that, but I don't know
20 of any particular law that specifically deals
21 with giving or selling a weapon.
22 SENATOR MONTGOMERY: That ends up
23 in the hands of a 12-year-old.
9517
1 SENATOR HOBLOCK: That's
2 correct. Now, as you may recall, Senator
3 Montgomery, we tried to increase the offenses
4 for the sale of drugs -
5 SENATOR MONTGOMERY: Yes, I'm
6 aware of that.
7 SENATOR HOBLOCK: -- to minors on
8 certain properties in the last couple of weeks
9 that a lot of people had objection to and I
10 would not be adverse to legislation penalizing
11 those that take that drastic step by putting
12 weapons into the hands of our young people.
13 SENATOR MONTGOMERY: Okay. Thank
14 you.
15 Mr. President, on the bill
16 briefly.
17 ACTING PRESIDENT KUHL: Senator
18 Montgomery, on the bill.
19 SENATOR MONTGOMERY: Obviously,
20 this bill is very troublesome and I don't have
21 in front of me the figures and I don't know if
22 anyone in the room has at the moment, but it
23 seems to me that while we are withdrawing
9518
1 support in the way of funding from prevention,
2 from youth programs, we do not have in the state
3 of New York, to my knowledge at this time, a
4 program or a funding stream that is directed to
5 fund programs for youth, and we do not have a
6 funding stream that is targeted at developing
7 youth facilities throughout the state for youth
8 recreational purposes, while at the same time -
9 -- and we do not have strong anti-gun control
10 legislation. We don't have on the books as
11 Senator Hoblock has just indicated any law that
12 says if you sell a weapon and that weapon ends
13 up in the hands of a 12-year-old, you will be
14 held liable for a crime. We don't have such a
15 law as that. And at the same time, we have
16 various streams of funding going into the
17 criminal justice system, 200 -- $250 million, I
18 believe it is, that we have just passed in our
19 budget to buy two prisons from New York City,
20 and we spend about $8 million every 24 hours on
21 DOCS and I see trailers, tractor -- I see
22 trailers up and down the highway transporting
23 prisoners and prisoners -- the items that
9519
1 prisoners manufacture and we have plenty of
2 activity around the prison system. Almost
3 70,000 people in the prison system, and here we
4 are today saying that we have no answers for
5 12-year-olds. They're not even teenagers. They
6 are not even yet teenagers. We have no answers
7 in this state for 12-year-olds except we're
8 going to put them in the DOCS system, that we're
9 already bankrupting ourselves on continuing to
10 expand. It's exploding.
11 We cannot -- Senator Hoblock -
12 Mr. President, we cannot afford to continue
13 along these lines. We will not have anything
14 except a huge, huge DOCS system consuming huge
15 amounts of money, and a major percentage of our
16 state budget going into this system and we won't
17 have a higher education system that is premiere
18 in this country and we won't have a premiere
19 health system and, you know, we won't have much
20 else in New York State to boast about except our
21 premiere DOCS system.
22 So this is very troublesome. I
23 -- I know that I'm talking to myself. I feel
9520
1 like I'm singing in the wind like the birds on
2 the highway that I pass up, but I feel compelled
3 to say it. This, to me, is just like a
4 conspiracy and I'm not one to believe in
5 conspiracy theories, but it is the closest thing
6 that I have seen to be a conspiracy to
7 essentially railroad as many young people as we
8 can, and we know who is in the DOCS. We know
9 who's there. It's African-American and Latino
10 primarily males, and we're just going to
11 continue to run them in there and run them
12 through there and cycle them through there and I
13 don't know, but it does not sound to me like a
14 humanitarian approach to our future or our
15 society.
16 So, Mr. President, I really -- I
17 feel so strongly about this. This is the wrong
18 thing to do. It is not -- it does not deter
19 crime because we're not talking about the source
20 of crime. We are just talking about doing
21 something very heinous with the little victims
22 who have already started off on the wrong track
23 and we're saying, there's nothing that we can
9521
1 do. We are not trying to intercede. We are
2 just going to throw you in with the rest of the
3 people who already have been in the system.
4 So I oppose it and I hope that
5 some of my colleagues will be against this awful
6 piece of legislation.
7 Thank you.
8 ACTING PRESIDENT KUHL: The Chair
9 recognizes Senator Volker.
10 SENATOR VOLKER: Mr. President, I
11 would try to contain myself a little bit. I get
12 a little irritated and I know that, Senator
13 Montgomery, you mean very well. I listened to
14 the debate earlier today on assault weapons and
15 I did not speak because I felt that it was
16 really a political issue and it wasn't a good
17 time to get into it.
18 We have the toughest gun laws in
19 the United States of America, in this state.
20 Don't let anybody kid you with all of this
21 nonsense. It isn't assault weapons that kill
22 people, by the way, it is other weapons that are
23 the main source of it and, by the way, Senator,
9522
1 you probably didn't have the opportunity because
2 I was here many years ago and I talked to this
3 little gentleman that you talked about who, at
4 12 years old, had killed about a dozen people.
5 He admitted when he was 14 he killed 14 people.
6 The person involved was the subject of a major
7 inquiry in 1978 and what brought on some of the
8 juvenile statutes in this state. I can assure
9 you some of the 12-year-olds that I met way back
10 when and that are around today are far more
11 dangerous than many of the people that have been
12 in our DOCS system for 20 or 30 years. It is a
13 scary situation.
14 But, Senator, you mentioned, we
15 don't have any youth facilities. We have them
16 all over the state, Senator. We spent millions
17 and millions of dollars on youth facilities. In
18 our budget that we just passed, there's still
19 millions of dollars for youth facilities and for
20 youth funding.
21 Senator, we spend about 30 times
22 as much on education in this state, something to
23 that effect as we spend on the Corrections
9523
1 Department. That's the way it should be. I'm
2 talking about overall funding, the state of New
3 York and local governments. The only reason I
4 mention that is we also, by the way, spend a
5 huge amount more on social services, mental
6 hygiene, and so forth. Yes, some of the funding
7 has been cut, but there's absolutely no
8 comparison between the amount of money that we
9 spend on education, on welfare, on all those
10 kinds of things. Prisons really represent a
11 comparatively miniscule amount, much too big,
12 but a comparatively miniscule amount.
13 Now, what Senator Hoblock is
14 talking about here is dealing with an aspect of
15 the criminal justice system which is in the
16 school and with guns that has become a
17 particular problem, and we have tried all sorts
18 of things to deal with this kind of thing, and
19 this doesn't say, by the way, these people are
20 going to the DOCS system. It does not
21 criminalize. It puts them in the juvenile
22 offender status, which is a different kind of
23 status. The problem is that we have tried all
9524
1 sorts of things.
2 Senator Abate, you talked about
3 it comprehensively. We have been looking
4 comprehensively at this issue for a long, long
5 time and there's just varying philosophies on
6 how we deal with it, but slowly but surely the
7 state is moving toward tougher penalties and a
8 more firm stance for younger people because,
9 unfortunately, the amount of young people who
10 are committing crimes in this state, serious
11 crimes, has become somewhat alarming. So we are
12 very concerned about it; but, Senator
13 Montgomery, to say -- and I know your
14 frustration because I know the kind of district
15 you have -- to say that we haven't tried all
16 sorts of programs and -- to deal with these
17 kinds of things is really I don't think quite
18 accurate and let me point out, we just had a
19 study done of the youth facilities in this state
20 and I think you know that it did not come out
21 very well, to the point where we are seriously
22 looking at shifting the secured facilities under
23 the aegis of DOCS because, frankly, it appeared
9525
1 that they were being managed much, much better
2 and we were able to get a much better result
3 from the DOCS facilities.
4 Now, that -
5 ACTING PRESIDENT KUHL: Senator
6 Montgomery -- excuse me.
7 SENATOR VOLKER: -- is being
8 reviewed. Now we have a new commissioner and
9 all of that, that's fine, but I must remind you,
10 these are not necessarily the little ones.
11 These are pretty tough people in many cases, and
12 you can't blame it on -- just on society because
13 many of the kids that come from single-parent
14 families turn out very well. They come from
15 difficult families, but some don't. Some of
16 these kids, by the way, are wealthy kids.
17 They're not necessarily poor kids.
18 ACTING PRESIDENT KUHL: Excuse
19 me. Senator Montgomery, why do you rise?
20 SENATOR MONTGOMERY: Would
21 Senator Volker yield for just one -
22 SENATOR VOLKER: Sure.
23 ACTING PRESIDENT KUHL: The
9526
1 Senator yields.
2 SENATOR MONTGOMERY: Senator
3 Volker, when I say "youth facilities", I'm
4 talking about youth cultural centers, centers
5 where youth can go and have cultural and
6 recreational and other kinds of activities. Are
7 those -- did we just spend millions of dollars
8 on constructing centers like that?
9 SENATOR VOLKER: Now, what you're
10 talking about is we have built in the past youth
11 facilities all over the state as I think you're
12 aware, but what you're saying is that there was
13 a -- the huge funding stream set up here a
14 couple years ago and, as I understand it in this
15 budget, that funding stream has been -- has been
16 frozen, that's true, but what I'm saying to you
17 is that there's been millions of dollars and
18 still continues to be spent on the youth in the
19 budget that just passed and we have already
20 provided an enormous amount of funding over the
21 years to try to deal with the issue of youths,
22 and what I'm pointing out is that you can't say
23 that we haven't made an attempt to deal with
9527
1 that.
2 It's like saying in a state -- in
3 the city of New York where for a long period you
4 couldn't even get a gun because they weren't
5 issuing licenses for guns, to say that somehow
6 we haven't been tough on the gun issue, it's
7 absolutely not true. That's all I'm saying and
8 I understand your concern. We have a concern, I
9 think all of us do, but I think the one thing
10 that you should -- it seems to be careful of is
11 -- is that these are not necessarily kids.
12 Despite the fact that they may be young in age,
13 some of them are extremely dangerous people, and
14 when we deal with these people and -- we had
15 better deal with them with a healthy respect
16 because, unfortunately, there are people that,
17 whether they're white or black or whatever they
18 are, and I can say people there's upstate and
19 downstate, all over the place, that I think we
20 have to deal with in a different manner than we
21 have in the past.
22 ACTING PRESIDENT KUHL: Senator
23 Montgomery.
9528
1 SENATOR MONTGOMERY: Mr.
2 President, I just wanted to see if Senator
3 Volker would yield. I wanted to ask him another
4 question related to -
5 ACTING PRESIDENT KUHL: Senator
6 Volker, do you yield to Senator Montgomery
7 again?
8 SENATOR MONTGOMERY: Senator
9 Volker, the -- there was a hearing in
10 Westchester County, I think, held by Senator
11 Oppenheimer, and one of the people who was very
12 much involved in after school programs -
13 there's an organization of after school programs
14 -- reported that there are some 600,000
15 children who have no place to go after school in
16 the state. Did we expand the funding for after
17 school programs in this state which, by the way,
18 after school programs take children in up until
19 the age of 12 in this state. Did we expand that
20 funding this year?
21 SENATOR VOLKER: Frankly, I don't
22 believe we did.
23 SENATOR MONTGOMERY: We didn't.
9529
1 SENATOR VOLKER: But I don't know
2 where that number of 600,000 after school
3 children, in fact, came from. Frankly, I never
4 saw that number, but I'm sure there are some
5 kids who don't have regular after school
6 programs. When you and I were younger, I don't
7 think we had any programs either. We just found
8 programs for ourselves, I guess, but it may well
9 be true that, I guess under the modern
10 circumstance, we're probably going to have to
11 look maybe for additional funding in many ways
12 which some cities are doing, but I don't think
13 there was an expansion of those programs, but
14 there are already programs statewide that -- I
15 don't know where that 600,000 figure would come
16 from, but I suppose there are a lot of kids that
17 don't have after school programs, but that
18 doesn't mean that we can necessarily justify the
19 fact that some of the kids and not others are
20 committing very serious crimes and I think
21 that's what Senator Hoblock was trying to deal
22 with.
23 ACTING PRESIDENT KUHL: Senator
9530
1 Montgomery.
2 SENATOR MONTGOMERY: Just
3 briefly, I just want to point out to the Senator
4 and my colleagues that a portion of those
5 children who now have no program to go to after
6 school, they are essentially latch key children,
7 some of those children end up on the streets.
8 Some of them are 10-, 11-, 12-year-olds and they
9 will eventually be swept into this program that
10 Senator Hoblock is proposing, and I just -- the
11 reason I raise this is because the further away
12 we move from the issue of prevention and the
13 issue of support for the family and support for
14 young people at a time when it makes a
15 difference, the more and more difficult it is
16 and the more costly it is to deal with them once
17 they have crossed over into the neverland of
18 criminal behavior and what have you.
19 So we need to know -- we need to
20 know how much money we're spending on
21 prevention, Senator Volker. We need to know how
22 many children don't have an after school to go
23 to. That should be the obligation. We don't -
9531
1 we should not only know how many 12-year-olds
2 commit heinous crimes. We should also know how
3 many 10- and 11-year-olds and 8- and 9-year-olds
4 that we can prevent from participating in that
5 kind of behavior and what we should be doing
6 about it. That is our responsibility too, and I
7 hope that we will begin to deal with that
8 because the front end is the most efficient way
9 to deal with young people, not just looking for
10 them on the back end when it's time for them to
11 go into prison, and we all know that they're
12 more likely to go if we do not invest in them up
13 front.
14 ACTING PRESIDENT KUHL: Senator
15 Gold, why do you rise?
16 SENATOR GOLD: Yeah. I wanted to
17 ask Senator Volker if he would yield to a
18 question.
19 ACTING PRESIDENT KUHL: Senator
20 Volker, do you yield to Senator Gold? The
21 Senator yields.
22 SENATOR GOLD: Senator, I just
23 want to clear the air on something which I don't
9532
1 understand. There was a remark made earlier by
2 Senator Bruno and since you made reference to
3 it, I want to ask you.
4 There are a number of times when
5 Senator Maltese, my dear friend from Queens,
6 brings bills to the floor which I don't agree
7 with, he's very sincere about concern issues and
8 in my voting no, I feel a little queasy about
9 it. Will people understand the issue? But I
10 have an opinion and Senator Maltese, who I
11 certainly do respect, has an opinion.
12 Now, Senator Bruno said earlier
13 today that the Dollinger motion had only one
14 purpose and that was to embarrass Republicans.
15 Will you explain to me how, if a member stands
16 up and votes his or her conscience and explains
17 intellectually how they feel, how is that an
18 embarrassment, Senator?
19 SENATOR VOLKER: Senator, let me
20 just say to you, we're talking about another
21 bill and what I was talking about -- what
22 Senator Bruno was talking about, the bill was
23 introduced after my committee went out of
9533
1 business. It was directly to Rules. To my
2 knowledge, it was never requested out of
3 committee. It was only introduced after it was
4 passed by the Assembly by a vote of just barely
5 76 votes and the Assembly Democratic Committee
6 is now sending letters all over the state trying
7 to drum up support, including to my district,
8 and listing Senator Dollinger, as the discussion
9 was -- the vote on this was going to be today.
10 Now, I mean, Senator, obviously
11 it has become a political issue. What I think
12 Senator Bruno was saying is that the issue
13 wasn't being brought to the floor; it was an
14 issue of a motion. That's all that was being
15 said.
16 Whether Senator Dollinger -- and
17 I sincerely believe that he has great feeling
18 for the issue, but the point I think Senator
19 Bruno was trying to make was that as far as this
20 particular motion -- he didn't say that he
21 wasn't sincere as far as the bill, but as far as
22 the particular motion was concerned -- it was a
23 political issue; that's all he was trying to
9534
1 say -- that was being tried to be made. That's,
2 I think, what he was talking about.
3 SENATOR GOLD: Thank you,
4 Senator.
5 ACTING PRESIDENT KUHL: Senator
6 Leichter, why do you rise?
7 SENATOR LEICHTER: I want to ask
8 Senator Hoblock to yield, because -
9 ACTING PRESIDENT KUHL: Senator
10 Hoblock, do you yield?
11 SENATOR LEICHTER: Senator, I
12 think a clarification is in order. We've
13 checked with OCA. This is not an OCA bill,
14 Senator. I did not believe it was an OCA bill
15 because I don't think OCA would come up with
16 this sort of a proposal. Moreover, Senator, it
17 wasn't on the form that OCA uses. It referred
18 wrongly to the chief administrator of the
19 courts. I don't believe that's the exact title,
20 but in any event, we have checked with OCA, it's
21 not an OCA bill and what I would like -- maybe
22 you have had a chance to check your records. I
23 appreciate that you, like me, are handed things
9535
1 by counsel, and so on, and sometimes there's
2 errors. I, by no means, mean to imply that this
3 was in any way intentional, and so on, but I
4 think the record ought to be made clear for this
5 chamber that this is not an OCA bill.
6 SENATOR HOBLOCK: Senator
7 Leichter, after you and I spoke, I did find in
8 my file a previous memo from OCA, because I
9 picked this bill up on OCA stationery setting
10 forth what's in this support memo.
11 SENATOR LEICHTER: But, Senator,
12 if you would be so good enough to yield.
13 ACTING PRESIDENT KUHL: Senator
14 Hoblock, do you continue to yield? The Senator
15 yields.
16 SENATOR LEICHTER: That's not the
17 bill that's before us.
18 SENATOR HOBLOCK: Yes, it is.
19 SENATOR LEICHTER: Well, Senator,
20 I submit to you it is not. Let me ask you about
21 the bill. I have two bills here that were
22 introduced on the same day. One is 5173, your
23 bill dated May 15th, 1995 and the other one is a
9536
1 bill that is before us, 5173-A, and 5173-A adds
2 12- and 13-year-olds. That was not in the
3 original bill.
4 SENATOR HOBLOCK: I think I
5 answered that to Senator Abate's question,
6 that's correct.
7 SENATOR LEICHTER: Was that done
8 at the request of OCA?
9 SENATOR HOBLOCK: No it wasn't.
10 I think I stated to Senator Abate that was done
11 to conform with Senator Larkin's legislation
12 which passed by OCA, and I didn't say this, OCA
13 had no objections, but I did answer the question
14 that there are two matters in this legislation
15 and I did mention that there were -- there was
16 an original print and an "A" print, and I did
17 state what they were about, that's correct.
18 SENATOR LEICHTER: Senator, but
19 that's not the issue. The issue is whether the
20 "A" print which is before us is an OCA bill.
21 OCA advises me that it is not.
22 SENATOR HOBLOCK: I think I said
23 that, Senator Leichter.
9537
1 SENATOR LEICHTER: No, you said
2 the opposite. You said exactly the opposite.
3 ACTING PRESIDENT KUHL:
4 Gentlemen, if you could, Senator Leichter, are
5 you asking Senator Hoblock to yield?
6 SENATOR LEICHTER: Yes. Senator,
7 will you yield?
8 ACTING PRESIDENT KUHL: Senator
9 Hoblock -- excuse me, Senator Leichter. I have
10 a big weapon up here this time.
11 Senator Hoblock, do you continue
12 to yield?
13 SENATOR HOBLOCK: Yes, I do.
14 ACTING PRESIDENT KUHL: The
15 Senator continues to yield.
16 SENATOR LEICHTER: Senator, you
17 distinctly said on a number of occasions that
18 the bill before us was an OCA bill. All I'm
19 trying to establish is that it is not an OCA
20 bill. If you say, "You're right, Leichter, it's
21 not an OCA bill", I'm satisfied.
22 SENATOR HOBLOCK: Senator
23 Leichter, perhaps you and I aren't communicating
9538
1 correctly. I don't know if you listened to my
2 answers to Senator Abate's questions about how
3 we got to the "A" print. When we got talking
4 about the juvenile offense or the offenses added
5 to the definition of "juvenile", that's when it
6 was said it's an OCA bill. Perhaps you and I
7 weren't communicating correctly. I'm telling
8 you again what it was I said before. Now, if
9 you choose not to accept that, I can't help it.
10 I'm just telling you what I said.
11 SENATOR LEICHTER: Senator, after
12 you had your discussion with Senator Abate -
13 and maybe I should have listened more closely -
14 but I got up and I asked you whether this was an
15 OCA bill because, frankly, it didn't have the
16 form of an OCA bill. I know Judge Milonas. I
17 didn't think he would put forward this sort of a
18 proposal that I find, frankly, appalling and
19 since it wasn't in the form in which bills
20 generally come from -- to us from OCA, I asked
21 you on the floor whether the bill before us was
22 an OCA bill. Your answer was yes.
23 SENATOR HOBLOCK: I probably did
9539
1 answer that in connection with those questions
2 and I apologize if I misled you, Senator
3 Leichter, and I apologize that the "A" print
4 that you did not understand when I answered the
5 question of how that came about.
6 SENATOR LEICHTER: Okay.
7 Senator -
8 SENATOR HOBLOCK: I think it was
9 clear -- I think it was clear the 12- or
10 13-year-olds was added as a result of trying to
11 conform with Senator Larkin's legislation.
12 SENATOR LEICHTER: Fine.
13 Senator, you owe me absolutely no apology.
14 SENATOR HOBLOCK: I'm not
15 apologizing, Senator Leichter. I'm just saying
16 there was a miscommunication, okay?
17 SENATOR LEICHTER: Okay.
18 Senator, I just want to make sure that my
19 colleagues are clear, as I am clear now and as I
20 believe you've made clear, that the bill we have
21 before us is not an OCA bill, and I think that's
22 significant and important, and if anybody was in
23 any way influenced in their consideration of
9540
1 this bill, whether this came from OCA, they
2 ought to be very clear and ought to understand
3 it is not an OCA bill.
4 That's -- having established
5 this, I am satisfied and having the floor, I
6 just want to say a couple of other things about
7 the bill and I thank you, Senator Hoblock.
8 ACTING PRESIDENT KUHL: Senator
9 Leichter on the bill.
10 SENATOR LEICHTER: Because I
11 think this is a radical departure from the way
12 we have tried to deal in our society with young
13 people and, frankly, I think it's almost a
14 savage response, if you will, to what is
15 undoubtedly a very serious problem and I don't
16 think, Senator Volker, that Senator Montgomery
17 in any way said that it wasn't a problem.
18 On the contrary, it's a very
19 serious problem, one that all of us, not only as
20 New York State legislators, as Americans, have
21 to be very concerned about as I refer to the
22 rising tide of crime and particularly the
23 growing violence where kids used to fight with
9541
1 their fists; they now pull out knives and guns,
2 and so on, and there are 12-year-olds, Senator
3 Volker, you're absolutely correct, that are
4 extremely dangerous, that action has to be taken
5 to separate them from society, but whether you
6 do that through the Criminal Court and treat
7 these people as adults, that's what we object
8 to, because we don't feel that's the way to do
9 it, and I think Senator Montgomery made, I
10 thought, a very persuasive, to my mind, an
11 indisputable point that what we need to do is to
12 keep children from becoming violent, and I would
13 hope that everybody would agree and then that's
14 where our resources should be put in.
15 I don't know. I think if I stay
16 here long enough -- I hope I don't, but if I
17 stay here much longer, I wouldn't be surprised
18 if the Republicans put forward the Islamic code
19 and we're going to have bills here soon calling
20 for cutting off peoples' hands and gouging out
21 their eyes. Really, you're going for the sort
22 of savagery that, frankly, I find appalling to
23 say a 12- or 13-year-old is going to be treated
9542
1 like an adult and be subject in the Criminal
2 Court to the processes and the penalties of a
3 mature person, I think is -- is a terrible
4 abdication of what has been, I think, a moral
5 standard that we have had in this state and in
6 this country.
7 ACTING PRESIDENT KUHL: The Chair
8 recognizes Senator Abate.
9 SENATOR ABATE: Yes. Would
10 Senator Hoblock yield to two more questions?
11 ACTING PRESIDENT KUHL: Senator
12 Hoblock, do you yield to Senator Abate?
13 SENATOR ABATE: Since I don't
14 believe this will be the end of this debate
15 today, there are a couple of other issues that
16 maybe you can help us with. Are there any other
17 states that now currently prosecute 12- and
18 13-year-olds and what are those states'
19 experiences?
20 SENATOR HOBLOCK: I'm not aware.
21 SENATOR ABATE: To my knowledge,
22 I'm not aware of any other state.
23 SENATOR HOBLOCK: Could very well
9543
1 be.
2 SENATOR ABATE: If you learn of
3 that experience, it would be very helpful if you
4 could share that. So we might be the first
5 state if we -- if this law was passed, we might
6 become the first state to prosecute 12- and
7 13-year-olds.
8 Let me -- the second question is
9 -- so I understand, I asked you the question
10 previously -- is what was the rationale for
11 moving the 12- and 13-year-olds from Family
12 Court into Criminal Court and I asked the
13 question, is it because the sentences are too
14 lenient in Family Court?
15 SENATOR HOBLOCK: That's part of
16 the reason and it was also, as I stated earlier,
17 to conform with the legislation we had talked
18 about, introduced and debated by Senator Larkin,
19 and also I was responding -- it's coincidental
20 that on the day that this 5173-A is dated is the
21 same date of a local newspaper article talking
22 about weapons found in schools in 52 and 57
23 counties.
9544
1 SENATOR ABATE: I'm not talking
2 about the weapons part. I'm talking about the
3 12- and 13-year-olds.
4 SENATOR HOBLOCK: You asked me
5 the question of how I arrived at it and I'm
6 trying to explain to you how I did that. It's
7 from those various sources that the amendment
8 was put in for 12- and 13-year-olds.
9 SENATOR ABATE: And the second
10 part -
11 ACTING PRESIDENT KUHL: Senator
12 Hoblock, do you continue to yield? The Senator
13 continues to yield.
14 SENATOR ABATE: I think we all
15 recognize these young people need to be
16 punished. It's really a question of where
17 they're punished, how they're punished and
18 effectively, so they can change the way they
19 think about themselves and the world about them.
20 If -- in fact, right now as
21 you're aware, the juvenile offenders can do up
22 to five years. If they are prosecuted as an
23 adult, they could do up to five years. If the
9545
1 sentences were lengthened as for a JD, a person
2 is prosecuted as a juvenile in Family Court and
3 the sentences were lengthened beyond 18 months
4 to as great as five years, what would be then
5 the rationale to prosecute the 12- and
6 13-year-olds as adults?
7 SENATOR HOBLOCK: Senator, I
8 think as I said before, you know, there are lots
9 of things that we can do. I think this juvenile
10 justice area has been discussed. I could
11 remember back 15 years ago when I was in the
12 Assembly it was discussed then too, and we're
13 having basically the same types of debate.
14 We're now having several years
15 later, we not only have the problem, it's
16 magnified in spite of all the efforts that are
17 being done. I think it has to be accomplished
18 on both ends, a lot of what Senator Montgomery
19 talked about and a lot of what we're talking
20 about. There's got to be a certain amount of
21 deterrence, that there are numbers of
22 sophisticated 12- and 13-year-olds as pointed
23 out in this article and the 14- -- over 14,000
9546
1 teachers and school staffs that have been
2 subject to violence in the schools, let alone
3 the other victims in the school grounds and
4 elsewhere. We can do -- we can build all of the
5 youth centers and all of the playgrounds and
6 everything else, it's not going to eliminate all
7 of it and we've got to do something about
8 treating these young people who are really not
9 young people.
10 We talk about these 12- and
11 13-year-olds as we know 12- and 13-year-olds,
12 and if a 12- or 13-year-old wants to commit an
13 adult crime, has the maturity to do it, then
14 perhaps we ought to start considering treating
15 them as adults for the punishment, and also to
16 worry about the victim, to worry about society a
17 little -- as much as we worry about the
18 offender. That's all I'm saying.
19 Am I going to stand here and tell
20 you that this is the answer? The problem is
21 going to go away? No. But neither is your
22 answer going to make the problem go away.
23 SENATOR ABATE: I guess I have
9547
1 two and a half questions, another half question
2 to follow up.
3 ACTING PRESIDENT KUHL: Senator
4 Hoblock, do you continue to yield?
5 SENATOR ABATE: Do you continue
6 to yield?
7 SENATOR HOBLOCK: Sure.
8 ACTING PRESIDENT KUHL: The
9 Senator continues to yield.
10 SENATOR ABATE: I want to put
11 aside the scope of punishment because let's make
12 the assumption that the scope of punishment is
13 the same in Family Court for the serious cases,
14 is the same in Family Court as it is in Criminal
15 Court. Let's say they both could get four
16 years, the person -- the same individual. So my
17 question is, isn't the Family Court which judges
18 are specifically trained to deal with youth, the
19 secured facilities that have been dealing with
20 youth, the youth providers that target youth in
21 that population, probation that works in Family
22 Court are particularly trained. You have a
23 whole system trained around adolescent behavior,
9548
1 what to do to prevent it, how to treat it, how
2 to provide transition services so when they go
3 back into their families and schools, they can
4 do better.
5 What about this bill or what
6 about your thinking if the scope of punishment
7 is the same, how can DOCS and Criminal Court be
8 better equipped to deal with this youth when
9 it's not their mission? They don't have the
10 same kind of training; they don't have the same
11 kind of experience. Now, I recognize there
12 needs to be reforms in Family Court and there
13 needs to be better management in DFY facilities,
14 et cetera, but if you can produce that better
15 management, why do you want to take the youth
16 out of a system that was organized around
17 dealing with youth and move them to an adult
18 system when you don't have to?
19 SENATOR HOBLOCK: Perhaps I
20 could try to answer that -
21 SENATOR ABATE: Still talking
22 about punishment. We're not saying these kids
23 are babies, let's let them off the hook. We
9549
1 won't do anything with them. We're saying how
2 do we be effective in punishing these young
3 people? In my assumption, we could be more
4 effective in punishing 12- and 13-year-olds in
5 Family Court.
6 SENATOR HOBLOCK: I'll try to
7 answer that two ways: One, this legislation
8 does not prohibit the initiation or removal of
9 these cases to Family Court and, number two, the
10 scenario that you describe as to all that's
11 available in Family Court is a perfect world,
12 and I can tell you that in my area, the
13 resources that you describe available in
14 juvenile court or Family Court and perhaps in
15 New York City and only in those courts and not
16 in the Criminal Court is not the case up here.
17 We have as many of those same
18 resources, if not more, in those criminal courts
19 because we're dealing with the same Probation
20 Department. We're dealing the same Division For
21 Youth individuals and people in that particular
22 arena. They go to Family Court. They go to
23 criminal court, same office. We don't have
9550
1 perhaps what you have in New York City. I know
2 this, that in this particular area, if not in
3 most areas upstate, those resources are
4 available.
5 SENATOR ABATE: Thank you very
6 much.
7 I'm not going to go on the bill
8 other than one comment to say then maybe we
9 should rethink where we put our resources. I
10 have been always an advocate, even though I have
11 been working at the back end of the system in
12 probation and correction that the money should
13 be put into the front end of the system and
14 every dollar spent in Family Court not only
15 saves families, saves lives, saves victims and
16 maybe we should reorder our priorities.
17 ACTING PRESIDENT KUHL: The
18 Secretary will read the last section.
19 THE SECRETARY: Section 5. This
20 act shall take effect 60 days after it shall
21 have become law.
22 ACTING PRESIDENT KUHL: Call the
23 roll.
9551
1 (The Secretary called the roll.)
2 ACTING PRESIDENT KUHL: Announce
3 the results when tabulated.
4 SENATOR GOLD: Slow roll call.
5 ACTING PRESIDENT KUHL: We have
6 two, three, four. One more member want a slow
7 roll call? I got four. Are there five members
8 in the chamber requesting a slow roll call?
9 One, two, three, four, five.
10 Thank you.
11 The Secretary will call the roll
12 slowly.
13 THE SECRETARY: Senator Abate.
14 SENATOR ABATE: No.
15 THE SECRETARY: Senator Babbush.
16 SENATOR BABBUSH: No.
17 THE SECRETARY: Senator Bruno.
18 (Affirmative indication.)
19 THE SECRETARY: Aye.
20 Senator Connor.
21 (Negative indication.)
22 THE SECRETARY: No.
23 Senator Cook.
9552
1 SENATOR COOK: Yes.
2 THE SECRETARY: Senator
3 DeFrancisco.
4 SENATOR DeFRANCISCO: Yes.
5 THE SECRETARY: Senator DiCarlo.
6 (There was no response.)
7 Senator Dollinger.
8 SENATOR DOLLINGER: Yes.
9 THE SECRETARY: Senator Espada.
10 ACTING PRESIDENT KUHL: Senator
11 Espada to explain his vote.
12 SENATOR ESPADA: Thank you, Mr.
13 President.
14 Very briefly, I had sat back,
15 heard the debate, and I think that Senator
16 Montgomery hit it right on the head. When she
17 didn't get into it necessarily -- she's not a
18 lawyer, neither am I -- issues of punishment,
19 degrees of punishment and what system, but, in
20 fact, she hit the nail on the head when she
21 talked about our priorities as a society.
22 There is a general glorification
23 of violence which we are all concerned about,
9553
1 not just in terms of inner city violence but
2 throughout New York State and America. There
3 are these savage inequalities, though, that
4 disturb me very greatly when our colleagues get
5 up and talk as though we have fully invested in
6 prevention when we are fully investing in the
7 kinds of youth opportunity centers and other
8 kinds of necessities that Senator Montgomery
9 talked about. She comes from a very, very poor
10 district, and so do I.
11 When I look at our budget line by
12 line, I go through it and the message is very
13 clear. Young people are not a priority in the
14 fiscal scheme of things in our budget or in our
15 deliberations. We talked about punishment. We
16 talked about how people should be in jail, a
17 build-up of jails as though we haven't done that
18 for the last ten years, a build-up in our prison
19 capacity in this state that almost doubles all
20 of the build-up throughout America in the last
21 decade. So we have tried that already.
22 What we haven't tried and what
23 people cannot get away with saying is that we
9554
1 have actually made young people and children a
2 priority. Children in this state, percentages
3 of children who are poor in this state rivals at
4 or exceeds that of any other state and perhaps
5 another -- any other country on this planet.
6 So the savage inequalities, the
7 misplaced priorities are an aspect to this whole
8 issue. If we did both at one time, we would
9 find that people on this side of the aisle could
10 be as macho and as tough on kids as you seem to
11 be, but the fact of the matter is that we're not
12 doing both. It's one, be tough, be punitive and
13 no investment in prevention and that is not a
14 level playing field that we can support.
15 We vote no.
16 ACTING PRESIDENT KUHL: Senator
17 Espada will be recorded in the negative.
18 The Secretary will continue to
19 call the roll.
20 THE SECRETARY: Senator Farley.
21 SENATOR FARLEY: Yes.
22 THE SECRETARY: Senator Galiber,
23 excused.
9555
1 Senator Gold.
2 SENATOR GOLD: No.
3 THE SECRETARY: Senator Gonzalez.
4 (There was no response.)
5 Senator Goodman.
6 (There was no response.)
7 Senator Hannon.
8 (There was no response.)
9 Senator Hoblock.
10 SENATOR HOBLOCK: Mr. President.
11 ACTING PRESIDENT KUHL: Senator
12 Hoblock to explain his vote.
13 SENATOR HOBLOCK: Very briefly,
14 Mr. President.
15 One thing that, as I hear
16 comments, I don't want to convey the impression
17 or if anyone is reading this legislation that
18 it's an attempt to take all 12- or 13-year-olds,
19 regardless of their criminality, no discretion,
20 mandatory that they be put into the criminal
21 justice/criminal court system, but rather this
22 legislation sets up the proviso that, if -- if
23 they are, then this is how they will be
9556
1 treated. It's not mandatory.
2 Those 12-, 13-, 14-, 15-year-olds
3 can still be treated in Family Court but not as
4 juvenile offenders.
5 ACTING PRESIDENT KUHL: Senator
6 Hoblock will be recorded in the affirmative.
7 The Secretary will continue to
8 call the roll slowly.
9 THE SECRETARY: Senator Hoffmann.
10 SENATOR HOFFMANN: No.
11 THE SECRETARY: Senator Holland.
12 SENATOR HOLLAND: Yes.
13 THE SECRETARY: Senator Johnson.
14 SENATOR JOHNSON: Aye.
15 THE SECRETARY: Senator Jones.
16 (Affirmative indication.)
17 Senator Kruger.
18 (There was no response.)
19 Senator Kuhl.
20 SENATOR KUHL: Aye.
21 THE SECRETARY: Senator Lack.
22 (There was no response.)
23 Senator Larkin.
9557
1 SENATOR LARKIN: Aye.
2 THE SECRETARY: Senator LaValle.
3 SENATOR LAVALLE: Aye.
4 THE SECRETARY: Senator Leibell.
5 SENATOR LEIBELL: Aye.
6 THE SECRETARY: Senator Leichter.
7 SENATOR LEICHTER: No.
8 THE SECRETARY: Senator Levy.
9 SENATOR LEVY: Aye.
10 THE SECRETARY: Senator Libous.
11 (There was no response.)
12 Senator Maltese.
13 SENATOR MALTESE: Aye.
14 THE SECRETARY: Senator
15 Marcellino.
16 SENATOR MARCELLINO: Aye.
17 THE SECRETARY: Senator Marchi.
18 SENATOR MARCHI: Aye.
19 THE SECRETARY: Senator
20 Markowitz.
21 SENATOR MARKOWITZ: To explain my
22 vote.
23 ACTING PRESIDENT KUHL: Senator
9558
1 Markowitz to explain his vote.
2 SENATOR MARKOWITZ: Thank you
3 very much.
4 First off, I wish my colleague
5 was in the room right now, Senator Volker. He
6 mentioned that we have one of the toughest
7 states in the nation as it relates to gun laws,
8 and that is true for some people who
9 legitimately attempt to gain a license and we do
10 have strict laws because some of those
11 entrepreneurs or other business interests may
12 not have a justifiable reason to want a firearm
13 and the police department of New York City or
14 anywhere else in the state of New York has a
15 right to be strict, but if you want a gun
16 illegally, New York is Dodge City. You could
17 buy a gun in almost any urban area easily,
18 quickly and cheaply. You ask kids in public
19 schools, whether they're in Bay Ridge or even
20 here in Albany, where one could purchase a gun
21 and it's amazing how they know faster than
22 perhaps law enforcement, and that is something
23 that we have to really give an awful lot of
9559
1 weight to.
2 The gun companies, manufacturers
3 know the amount of guns that they're selling in
4 the society. Certainly they have to realize
5 that those guns are not all going into the hands
6 of people that are using them legitimately. And
7 so we are a far way, a far, far way in providing
8 real gun control laws in our society.
9 Now, I bring this back to younger
10 people and this bill that Senator has been -
11 Hoblock has introduced. Senator, I wish that
12 this was the answer. None of us Republicans or
13 Democrats are in favor of 12- and 13-year-olds
14 acting in a violent way and going unpunished,
15 but the bottom line is that before a 12-, 13- or
16 14-year-old begins to shoot away, they begin to
17 show anti-social behavior before that, and then
18 what is society doing at the time that child
19 begins to show the kind of behavior that will
20 not lead to a conducive life?
21 What are we doing as a society;
22 and that is the problem, my fellow colleagues.
23 We are not doing nearly enough at all to try to
9560
1 prevent that younger person from beginning a
2 life that will surely lead to violence, not only
3 for the victims which we're all concerned about
4 but also the person who has committed the crime;
5 and so I would love to vote on a bill as I have
6 in many other instances in cracking down on
7 violent offenders. For sure, all of us feel
8 that way and our votes demonstrate that, but
9 until I'm convinced, Senator, that we're
10 providing enough assistance and that our school
11 system, our mental health facilities, our
12 school-based programs, our criminal justice
13 system, our youth groups are able to have the
14 resources necessary to identify those young
15 people that have begun to show anti-social
16 behavior and try to prevent it from coming to
17 this point where you want to pass this
18 legislation, I don't think we're doing our
19 society any justice.
20 ACTING PRESIDENT KUHL: How do
21 you vote?
22 SENATOR MARKOWITZ: I vote no.
23 ACTING PRESIDENT KUHL: Senator
9561
1 Markowitz will be recorded in the negative.
2 The Secretary will continue to
3 call the roll.
4 THE SECRETARY: Senator Maziarz.
5 SENATOR MAZIARZ: Yes.
6 THE SECRETARY: Senator Mendez.
7 ACTING PRESIDENT KUHL: Senator
8 Mendez to explain her vote.
9 SENATOR MENDEZ: To explain my
10 vote.
11 I am voting in the negative. The
12 assumption behind this bill is that practically
13 all 12- and 13-year-olds are incorrigible, that
14 practically all 12- and 13-year-olds are
15 carrying guns. I haven't seen any hard data to
16 that effect.
17 Yes, our society has been
18 increasingly becoming violent. Nobody has
19 mentioned here today the effect it has on kids,
20 these horrible movies that they sell violence
21 since the very first time the movie starts until
22 it ends. There are a lot of societal factors
23 influencing negative behavior on children. For
9562
1 one, in our public school system, something has
2 to be done because in the final analysis, kids
3 are not learning. Kids are not learning and
4 we're pouring monies into the school, regardless
5 how much the city of New York is short changed,
6 but the plain fact is that in any school system
7 where 40 percent of kids do not graduate,
8 something is horribly wrong.
9 I don't think that by being this
10 severe on this group of kids, 12- or 13-year
11 olds, we are resolving the problem. I think
12 that, in fact, we are -- we are simplifying the
13 nature of the problem so, therefore, I vote in
14 the negative.
15 ACTING PRESIDENT KUHL: Senator
16 Mendez will be recorded in the negative.
17 The Secretary will continue to
18 call the roll slowly.
19 THE SECRETARY: Senator
20 Montgomery.
21 SENATOR MONTGOMERY: Mr.
22 President.
23 ACTING PRESIDENT KUHL: Senator
9563
1 Montgomery, to explain her vote.
2 SENATOR MONTGOMERY: Yes, Mr.
3 President, I just thank you and I -- this is -
4 there is a bill -- there is a bill which would
5 allow ultimately a local school board to
6 override the Regents and allow commercial
7 television in classrooms. This would be the
8 Channel 1 in the classroom. Now, many of us are
9 adamantly opposed to it, but let me just say to
10 Senator Hoblock and my colleagues that Channel 1
11 would be advertising two minutes, four 30-second
12 spots, every single day in every classroom where
13 there was a television in any district, where
14 this program would be advertising $100 sneakers
15 and everything else that is top of the line for
16 young people to aspire to attain and to
17 possess.
18 So while we say we want to put
19 12-year-olds in the criminal court, run them
20 through the criminal court we, at the same time,
21 are saying that we're willing to entertain
22 having -- putting before them -- making it
23 possible to put before them this kind of
9564
1 advertising, this kind of enticement and this -
2 this kind of suggestion that these are the
3 important things for you to acquire. And how
4 does one acquire these things? You have to have
5 money. You have to have a way of getting
6 money. If your family doesn't have that money,
7 you figure out a way to get it.
8 So until we are willing to
9 address that part of it and to address the fact
10 that we have the highest murder rate in the
11 world because we have over 200 million guns on
12 the streets, then I'm not comfortable with
13 saying that we want to now send babies into
14 criminal court.
15 So I remain opposed to this. I
16 think it is immoral, and I hope that my
17 colleagues will reject this motion.
18 I vote no, Mr. President.
19 ACTING PRESIDENT KUHL: Senator
20 Montgomery will be recorded in the negative.
21 Secretary will continue to call
22 the roll slowly.
23 THE SECRETARY: Senator Nanula.
9565
1 SENATOR NANULA: No.
2 THE SECRETARY: Senator
3 Nozzolio.
4 SENATOR NOZZOLIO: Aye.
5 THE SECRETARY: Senator Onorato.
6 SENATOR ONORATO: Aye.
7 THE SECRETARY: Senator
8 Oppenheimer.
9 SENATOR OPPENHEIMER: I'll
10 explain my vote.
11 ACTING PRESIDENT KUHL: Senator
12 Oppenheimer, to explain her vote.
13 SENATOR OPPENHEIMER: Most of you
14 know that I'm normally interested in seeing that
15 punishment be commensurate with crime, so I'm
16 usually fairly strict on that punishment, but I
17 think to attribute the kind of adult punishment
18 to a child 12 and 13 years old only will assure
19 us that we're going to have hardened criminals
20 when they grow up.
21 I would support increasing the
22 punishment, but I would do it within the
23 juvenile justice arena and not with adults. The
9566
1 thought of 12-and 13-year-olds in a prison with
2 hardened criminals is a fairly scary thing and
3 frightens me, and I know that we would then
4 produce just more hardened criminals.
5 I'm going to be voting no.
6 ACTING PRESIDENT KUHL: Senator
7 Oppenheimer will be voting in the negative.
8 Secretary will continue to call
9 the roll.
10 THE SECRETARY: Senator Padavan.
11 SENATOR PADAVAN: No.
12 THE SECRETARY: Senator
13 Paterson.
14 SENATOR PATERSON: Yes -- no.
15 THE SECRETARY: Senator Present.
16 SENATOR PRESENT: Aye.
17 THE SECRETARY: Senator Rath.
18 SENATOR RATH: Aye.
19 THE SECRETARY: Senator Saland.
20 SENATOR SALAND: Aye.
21 THE SECRETARY: Senator
22 Santiago.
23 (There was no audible response. )
9567
1 Senator Sears.
2 SENATOR SEARS: Aye.
3 THE SECRETARY: Senator Seward.
4 SENATOR SEWARD: Aye.
5 THE SECRETARY: Senator Skelos.
6 SENATOR SKELOS: Aye.
7 THE SECRETARY: Senator Smith.
8 SENATOR SMITH: No.
9 THE SECRETARY: Senator Solomon.
10 SENATOR SOLOMON: No.
11 THE SECRETARY: Senator Spano.
12 SENATOR SPANO: Aye.
13 THE SECRETARY: Senator
14 Stachowski.
15 SENATOR STACHOWSKI: Yes.
16 THE SECRETARY: Senator
17 Stafford.
18 SENATOR STAFFORD: Aye.
19 THE SECRETARY: Senator
20 Stavisky.
21 SENATOR STAVISKY: Yes.
22 THE SECRETARY: Senator Trunzo.
23 (There was no response. )
9568
1 Senator Tully.
2 SENATOR TULLY: Yes.
3 THE SECRETARY: Senator Velella.
4 SENATOR VELELLA: Yes.
5 THE SECRETARY: Senator Volker.
6 SENATOR VOLKER: Yes.
7 THE SECRETARY: Senator Waldon.
8 SENATOR WALDON: Yes.
9 THE SECRETARY: Senator Wright.
10 SENATOR WRIGHT: Aye.
11 ACTING PRESIDENT KUHL: Secretary
12 will call the absentees.
13 THE SECRETARY: Senator DiCarlo.
14 SENATOR DiCARLO: Aye.
15 THE SECRETARY: Senator
16 Gonzalez.
17 (There was no response. )
18 Senator Goodman.
19 (There was no response. )
20 Senator Hannon.
21 (There was no response. )
22 Senator Kruger.
23 (There was no response. )
9569
1 Senator Lack.
2 SENATOR LACK: Yes.
3 THE SECRETARY: Senator Libous.
4 SENATOR LIBOUS: Aye.
5 THE SECRETARY: Senator Trunzo.
6 (There was no response. )
7 ACTING PRESIDENT KUHL: Announce
8 the results.
9 THE SECRETARY: Ayes 40, nays
10 15.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 SENATOR SOLOMON: Mr. President.
14 ACTING PRESIDENT KUHL: Senator
15 Solomon, why do you rise?
16 SENATOR SOLOMON: Yes, Mr.
17 President. I'd like unanimous consent to be
18 recorded in the negative on Calendar Number
19 1097.
20 ACTING PRESIDENT KUHL: Without
21 objection.
22 SENATOR MENDEZ: Mr. President.
23 ACTING PRESIDENT KUHL: Hearing
9570
1 no objection, Senator Solomon will be recorded
2 in the negative on Calendar 1097.
3 Senator Mendez, why do you rise?
4 SENATOR MENDEZ: I also, Mr.
5 President, is requesting unanimous consent to be
6 recorded in the negative in Calendar Number
7 1097.
8 ACTING PRESIDENT KUHL: Without
9 objection, hearing no objection, Senator Mendez
10 will be recorded in the negative on Calendar
11 Number 1097.
12 Senator Dollinger, why do you
13 rise?
14 SENATOR DOLLINGER: Mr.
15 President, if I could also have unanimous
16 consent to be recorded in the negative on
17 Calendar Number 1097, I'd appreciate it.
18 ACTING PRESIDENT KUHL: Without
19 objection, hearing no objection, Senator
20 Dollinger will be recorded in the negative on
21 Calendar Number 1097.
22 Senator Marcellino.
23 SENATOR MARCELLINO: Mr.
9571
1 President, we announce a meeting of the Rules
2 Committee at 5:00 p.m., promptly, in Room 332.
3 ACTING PRESIDENT KUHL: There
4 will be a meeting of the Rules Committee at -
5 in six minutes, at 5:00 p.m., in the Majority
6 Conference Room, Room 332. Rules Committee at
7 5:00 p.m., Room 332.
8 Senator Maltese, why do you
9 rise?
10 SENATOR MALTESE: Mr. President,
11 I request unanimous consent to be recorded in
12 the negative on Calendar Number 128.
13 ACTING PRESIDENT KUHL: Without
14 objection, Senator Maltese will be recorded in
15 the negative on Calendar Number 128.
16 Senator Montgomery.
17 SENATOR MONTGOMERY: Thank you,
18 Mr. President. I would like to be recorded in
19 the negative on Calendar Number 1097.
20 ACTING PRESIDENT KUHL: What
21 number was that again, Senator Montgomery?
22 SENATOR MONTGOMERY: 1097.
23 ACTING PRESIDENT KUHL: Without
9572
1 objection, hearing no objection, Senator
2 Montgomery will be recorded in the negative on
3 Calendar Number 1097.
4 Senator Nanula.
5 SENATOR NANULA: Mr. President, I
6 too would like to request unanimous consent to
7 be recorded in the negative on Calendar Number
8 1097.
9 ACTING PRESIDENT KUHL: Without
10 objection, hearing no objection, Senator Nanula
11 will be recorded in the negative on Calendar
12 Number 1097.
13 Senator DeFrancisco, why do you
14 rise?
15 SENATOR DeFRANCISCO: May I have
16 unanimous consent to be recorded in the negative
17 on Calendar Number 241.
18 ACTING PRESIDENT KUHL: Without
19 objection, Senator DeFrancisco -- and hearing no
20 objection, Senator DeFrancisco will be recorded
21 in the negative on Calendar Number 241.
22 Secretary will continue to call
23 the controversial calendar.
9573
1 THE SECRETARY: Calendar Number
2 1266, by Senator LaValle.
3 SENATOR MARCELLINO: Lay it aside
4 for the day, please.
5 ACTING PRESIDENT KUHL: Lay the
6 bill aside for the day.
7 THE SECRETARY: Calendar Number
8 1269, by Senator Holland, Senate Print 2044, an
9 act to amend the Social Services Law, in
10 relation to recovery of certain medical
11 assistance expenses.
12 SENATOR PATERSON: Explanation.
13 ACTING PRESIDENT KUHL: There's a
14 local fiscal impact note at the desk. Senator
15 Holland, an explanation of Calendar Number 1269
16 has been asked for by the Acting Minority
17 Leader, Senator Paterson.
18 SENATOR HOLLAND: Mr. President,
19 under current law, if there is a personal injury
20 and there is a court case and the individual
21 goes to Medicaid and recovers some funds, if the
22 individual is over 21 years of age, Medicaid or
23 DSS can put a lien against that money and
9574
1 recover the money. However, if the individual
2 is under 21, right now, what happens is that the
3 attorney sets up a trust or the attorney sets up
4 or puts the money in pain and suffering, and we
5 can not put a lien against the money.
6 Now, we do not, Senator, want to
7 put a lien against the money and take everything
8 away from the individual. We want the
9 individual to have enough money to -- to -- as
10 necessary, but if there is excess money, we
11 believe a lien should be placed against some of
12 the funds so that the Medicaid or DSS can be
13 reimbursed.
14 SENATOR PATERSON: Mr.
15 President.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson.
18 SENATOR PATERSON: Assured that
19 Senator Holland celebrated his birthday in spite
20 of my persistent questions, I wonder if he would
21 turn today and answer a few more questions.
22 SENATOR HOLLAND: Sure, yes.
23 ACTING PRESIDENT KUHL: Senator
9575
1 says he'll yield, Senator Paterson.
2 SENATOR PATERSON: Mr. President,
3 my first question for Senator Holland is,
4 Senator, in many respects, I understand what
5 you're trying to accomplish, and it was some
6 thing that you were also seeking in legislation
7 yesterday, and it really is to prevent double
8 dipping, to prevent double recovery in these
9 types of situations. But the courts don't
10 structure the -- the courts don't structure the
11 remediation in the way that I think this bill is
12 suggesting.
13 It would be very possible under
14 this legislation for us to be taking away what
15 might be slight recovery from the victim, in
16 this case the child. Let me cite an example for
17 you.
18 Suppose a child is in a car
19 accident and is injured as a result of
20 wrongdoing by a drunk driver, a third party, and
21 at trial the victim wins $100,000 worth of pain
22 and suffering, $100,000 worth of medical
23 expenses and $100,000 worth of perceived wages
9576
1 from future work.
2 Now, under your legislation, if
3 the drunk driver can't really afford beyond the
4 10- to $20,000 insurance policy that they may
5 have already taken out, what you may have is the
6 Department of Social Services putting in the
7 lien against the $10,000 because the individual
8 who caused the accident doesn't have any
9 resources, and now we're going after the slight
10 amount of money that was accrued in insurance
11 to, in a sense, pay back what were the costs of
12 health preservation that the Department of
13 Social Services shelled out in the beginning.
14 So what I'm saying to you is that
15 I think the bill is somewhat defective and
16 probably needs an amendment. The amendment I
17 would suggest and the amendment that the New
18 York State Trial Lawyers would propose would be
19 one that sets forth that the recovery for
20 medical assistance would be secondary to the
21 original recovery of pain and suffering and
22 perceived future wage losses.
23 SENATOR HOLLAND: Senator, that's
9577
1 what's happening today and that's what we're
2 trying to correct. New York State Notebook
3 provides $50,000 to cover medical expenses, I
4 guess you know that, and our intention is not to
5 -- to take excess money. It's only to take
6 excess money away from the young person, not to
7 take enough -- to take more money than the young
8 person will need. I hope that answers your
9 question.
10 ACTING PRESIDENT KUHL: Senator
11 Paterson.
12 SENATOR PATERSON: You have,
13 Senator, but don't you think if the injuries to
14 a young person in an accident were approaching
15 what would be catastrophic injury situations
16 where this person is going to need lifelong care
17 that it really would be, you know, patently
18 unfair for us to be taking any money away from
19 them at that point?
20 SENATOR HOLLAND: We're not -
21 SENATOR PATERSON: And under your
22 bill, I'm suggesting that that could happen.
23 SENATOR HOLLAND: I don't believe
9578
1 so, Senator. I don't believe so at all, and DSS
2 does not intend to do that. We don't intend to
3 do that. I don't believe that is the case at
4 all, Senator, and the bill is not designed that
5 way.
6 ACTING PRESIDENT KUHL: Senator
7 Paterson.
8 SENATOR PATERSON: Well, Senator,
9 even before you just explained to -
10 ACTING PRESIDENT KUHL: Senator
11 Holland continue to yield? Senator continues to
12 yield, Senator Paterson.
13 SENATOR PATERSON: Oh, thank you,
14 Mr. President.
15 Senator, before you even
16 explained that, I perceived that you didn't
17 intend that. What I'm saying is that I just
18 feel that your bill -- I don't think I'm ob
19 jecting at all to your intent. I'm saying that
20 the bill isn't specific enough, and I don't
21 think it would take that much more from what you
22 have already set forth to just address those
23 situations so that we don't leave it open to
9579
1 interpretation which could inure to the
2 detriment of a child who is injured in a
3 accident.
4 SENATOR HOLLAND: Maybe I can
5 answer the question differently then. Already
6 in section -- in C.P.L.R. Section 1207 and 1208,
7 an infant -- an infant compromise order must
8 contain the facts of a settlement and the court
9 must approve the order. In reviewing the order,
10 the judge must make sure the infant's financial
11 rights are protected.
12 This bill does not preclude the
13 court's discretion and that's what we're trying
14 to do, and it's already -- I think the answer to
15 your question is in the C.P.L.R.
16 ACTING PRESIDENT KUHL: Senator
17 Paterson.
18 SENATOR PATERSON: Senator, what
19 I'll do is, I will take that information that
20 you've given me that I didn't have before, and I
21 will look into it, but if you are right that
22 would certainly address the situation, but I'm
23 just suggesting from my own understanding of
9580
1 what we're trying to do with section 104 (b) of
2 the Social Services Law is that it's -- it's not
3 clear enough, but I would not think that you
4 would want to -- to create a situation where the
5 victim of an accident would be suffering further
6 because we took a lien against some of the
7 benefits that would accrue and, you know,
8 relying on that -
9 SENATOR HOLLAND: The only thing
10 we want to do is stop the attorneys from forcing
11 the money into pain -- the pain and suffering
12 section and protecting them on into a trust
13 fund.
14 ACTING PRESIDENT KUHL: Senator
15 Paterson.
16 SENATOR PATERSON: Maybe you
17 could answer this, Senator, and maybe this might
18 clear the whole thing up. We already have a
19 lien law against the medical benefits, as I
20 understand it. What I'm saying is that it seems
21 to me that the legislation as proposed takes a
22 broader approach, in other words, allows us to
23 go further out into that plain of what could be
9581
1 other recoveries. Do you agree with that?
2 SENATOR HOLLAND: Say it again.
3 I was listening to two people at once, Senator;
4 I'm sorry.
5 ACTING PRESIDENT KUHL: Senator
6 Paterson.
7 SENATOR PATERSON: Tell you
8 what.
9 SENATOR HOLLAND: I'm sorry.
10 SENATOR PATERSON: Just looking
11 at a Court of Appeals case, Baker v. Sterling,
12 it allows us to collect -- to recover medical
13 services already in these types of structured
14 settlements that we're talking about, but what
15 I'm saying is, it appears to me that what your
16 legislation is doing is, in a sense over
17 reaching that case and going into what might
18 possibly be other recoveries.
19 SENATOR HOLLAND: I don't think
20 so. Senator. I don't think so at all. The
21 Baker vs. Sterling, in many cases settlements
22 are structured so that no amount or fraction of
23 the amount of actual medical costs is
9582
1 appropriated for medical expenses, thus
2 defeating the Medicaid lien, and we're trying to
3 get around that. We're trying to put in statute
4 something that will get us around that.
5 SENATOR PATERSON: Taking the
6 information that I'm stating right here,
7 Senator, from your memorandum which is, in a
8 sense, somewhat critical of the judge's
9 structuring of these actual settlements and
10 saying that the judges are not structuring these
11 settlements in such a way that we need
12 legislation to accomplish the goal of making
13 sure that the Department of Social Services gets
14 an opportunity to have their money refunded, and
15 so what I'm saying is that just coming from your
16 memo that it -- it seems to me, and you know,
17 I'm certainly hoping to be corrected, but it
18 certainly seems to me that you're -- you're
19 going into that area. In other words, you're
20 trying to broaden it.
21 SENATOR HOLLAND: I'm sorry. I
22 don't understand the question. You want to try
23 it again, please? What -- what we're trying to
9583
1 do is clarify. I know Baker vs. Sterling. I
2 know what the court said there, and what's
3 actually happening is, and the court said we
4 could do it but what's actually happening is the
5 lawyers are protecting the money, even an excess
6 amount of money, by putting it in a trust fund
7 and it could be and may be and many times
8 there's no money set aside for any medical
9 expenses at all.
10 Therefore, the state, the
11 taxpayers are picking up the expenses and that's
12 unfair.
13 SENATOR PATERSON: All right,
14 Senator. It probably is unfair where the
15 lawyers are doing that. Don't the judges still
16 have the jurisdiction to reject that from the
17 structured settlement?
18 SENATOR HOLLAND: As we said
19 before, yes, they do and we read you the section
20 of the C.P.L.R., but it's not happening and
21 that's what we're trying to correct in this
22 legislation.
23 SENATOR PATERSON: And so what
9584
1 I'm saying, Senator, is that, because we're
2 unhappy with how the judges have ruled in this
3 area, our attempt to actually codify it is -
4 and this is the question that I've caused you
5 some confusion on a moment ago, what I'm saying
6 is because the judges have not responded in the
7 fashion that you feel it would be consistent
8 with what a case -- and basically Sterling -
9 allows, now, what we're doing is we're drawing
10 up a statute, and all I'm saying is that if we
11 would just amend the statute to such an extent
12 to really specify what the protections will be
13 for the younger people, I would just feel a
14 little more comfortable with -- with your
15 legislation.
16 I don't really have a problem
17 with the end result and, you know, it's kind of
18 like the end resource, the end result in the
19 source rule, which is where you have these
20 double recoveries and in this particular case, I
21 think you're absolutely right but what I'm
22 saying is, I don't want to open the door to
23 individuals, in a sense, being denied recovery
9585
1 for other issues such as the ones arising from
2 pain and suffering and the ones arising from
3 perceived losses of income because the injured
4 party can't work.
5 As a result of your legislation,
6 and you have said quite graciously that you
7 don't want to do it either, and all I'm
8 suggesting to you is the way the legislation
9 reads right now, these same judges who made the
10 underacting in such a sense that you feel the
11 necessity to address it in legislation may over
12 react and then draw the lines in such a fashion
13 to deny recovery.
14 SENATOR HOLLAND: But you see,
15 Senator, I think we have answered that already
16 in mentioning Sections 1207 and 1208 of the
17 C.P.L.R. They are protected, and all we're
18 doing really, understanding 1207 and 1208, is
19 giving DSS some more leverage in collecting some
20 of the excess funds in repayment of the loan for
21 Medicaid after the court case is over.
22 SENATOR PATERSON: Well, I guess
23 I'll close on the bill, Mr. President.
9586
1 ACTING PRESIDENT KUHL: Senator
2 Paterson, on the bill.
3 SENATOR PATERSON: And I
4 understand what Senator Holland is saying and in
5 some respects, there are two ways to look at
6 this. One is that, when Senator Holland quotes
7 C.P.L.R. 1207 and 1208, we might ask ourselves
8 why do we need to legislate now because we
9 already have -- have put laws on the books that
10 would be directing the judges, and we would have
11 to assume since we've been nominating judges
12 here and we feel that they are individuals that
13 understand the law, that they are trying to be
14 sensitive to the needs of the victim.
15 On the other hand, I guess it has
16 to be stated to be fair, that perhaps the law is
17 not working and this is the reason that Senator
18 Holland has brought this bill out to try to, in
19 a sense, recodify the law even, if anything, to
20 state and restate the principle to drive the
21 point home to judges.
22 I think in these situations, we
23 have to be extremely careful because, again, as
9587
1 I said yesterday, Senator Holland, we're not
2 talking about people who are avoiding the
3 opportunity to work; we're not talking about
4 people who have misused our system of award from
5 the Department of Social Services. We're
6 talking about people who are unfortunately the
7 victims of accidents.
8 ACTING PRESIDENT KUHL: Secretary
9 will -- excuse me. Senator Stavisky.
10 SENATOR STAVISKY: Mr. President,
11 on a previous bill, I voted with the sponsor
12 because there are instances where minors,
13 unfortunately, given the opportunity to use
14 weapons, will, in fact, injure or kill other
15 human beings, including minors as well as adults
16 and so, in what appeared to be perhaps in my own
17 thinking an inconsistent vote with the position
18 that I normally take, I voted for the previous
19 bill because that finger on that firearm trigger
20 can do irreparable damages to other people.
21 This is a different situation.
22 Here is a case where a child who obviously
23 cannot recover and prove that there is a loss of
9588
1 earnings, who obviously did not ask for the
2 accident to occur, who is injured, tragically
3 injured, permanently injured by a vehicle owned,
4 let us say, by a large corporation and has very
5 limited family resources so that there might be
6 a Medicaid coverage. We are now making that
7 victim, that child who did not ask for the
8 accident to occur, now asking for that victim to
9 be victimized again.
10 The net effect of this bill, for
11 whatever purpose intended, may be to victimize
12 the victim all over again and may result in
13 legislation to cause injustice to babies, and
14 that is an important consideration. We may be
15 dealing with minors who are the victims and
16 since there is no loss of earnings, that cannot
17 be considered and I believe that if the judges
18 cannot adequately interpret the law, then let us
19 be more careful in the selection of judges by
20 whatever method, election or appointment.
21 We have an obligation as
22 legislators not to destroy the rights of babies
23 or minors who did not ask for the injury to
9589
1 occur, but we inadvertently may be causing
2 additional financial strain on that child and
3 that family if there is, in fact, a family.
4 And so let us not meddle simply
5 to close what appears to be a state budget
6 deficit, that appears to be a state budget
7 deficit in a year when we gave existing tax
8 revenue away to benefit people who are not
9 indigent, to benefit people because we allegedly
10 were trying to help with the trickle-down theory
11 to give money sometimes to affluent
12 individuals.
13 Let us not make the Department of
14 Social Services bill collectors. Let us not
15 destroy the rights of minors, and let us not
16 victimize the victims all over again. This is a
17 bad bill, a bad precedent, that we should not be
18 pursuing but rather we should be looking for
19 revenue that is legitimately due because there
20 is fraud. These babies have not committed fraud
21 but deserve our protection and our understanding
22 and I hope there will be sufficient votes on
23 both sides of the aisle to demonstrate that we
9590
1 should not be robbing babies with such
2 legislation.
3 ACTING PRESIDENT KUHL: Secretary
4 will read the last section.
5 THE SECRETARY: Section 2. This
6 acted shall take effect immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll. )
10 ACTING PRESIDENT KUHL: Announce
11 the results when tabulated.
12 THE SECRETARY: Those recorded in
13 the negative on Calendar Number 1269 are
14 Senators Connor, Dollinger, Espada, Gold,
15 Kruger, Montgomery, Nanula, Paterson, Smith,
16 Solomon, Stavisky and Waldon, also Senator
17 Abate. Ayes 47, nays 13.
18 ACTING PRESIDENT KUHL: The bill
19 is passed.
20 Senator Kruger, why do you rise?
21 SENATOR KRUGER: Mr. President, I
22 would ask unanimous consent to be recorded in
23 the negative on Calendar Number 1097.
9591
1 ACTING PRESIDENT KUHL: Without
2 objection, hearing no objection, Senator Kruger
3 will be recorded in the negative on Calendar
4 Number 1097.
5 Secretary will continue to call
6 the roll.
7 THE SECRETARY: Calendar Number
8 1270, by Senator Velella, Senate Print 2586, an
9 act to amend Chapter 576 of the Laws of 1975
10 relating to authorizing the Commissioner of
11 Education to contract with certain schools.
12 SENATOR MARCELLINO: Lay it aside
13 for the day.
14 ACTING PRESIDENT KUHL: Lay the
15 bill aside.
16 THE SECRETARY: Calendar Number
17 1273, by Senator Kuhl, Senate Print 3831, an act
18 providing to Thomas A. Cassidy credit for past
19 service.
20 ACTING PRESIDENT KUHL: Secretary
21 will read the last section.
22 SENATOR PATERSON: Explanation.
23 ACTING PRESIDENT KUHL: Oh, hold
9592
1 on.
2 Senator Gold, why do you rise?
3 SENATOR GOLD: Last section.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the last section.
6 THE SECRETARY: Section 6. This
7 act shall take effect immediately.
8 ACTING PRESIDENT KUHL: Call the
9 roll.
10 (The Secretary called the roll. )
11 THE SECRETARY: Ayes 60.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 THE SECRETARY: Calendar Number
15 1275, by Senator Kuhl, Senate Print 3868, an act
16 to require the New York State and local
17 retirement system to accept retirement
18 applications.
19 ACTING PRESIDENT KUHL: Secretary
20 will read the last section.
21 THE SECRETARY: Section 3. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
9593
1 roll.
2 (The Secretary called the roll. )
3 THE SECRETARY: Ayes 60.
4 ACTING PRESIDENT KUHL: The bill
5 is passed.
6 THE SECRETARY: Calendar Number
7 1284, by member of the Assembly Dinowitz,
8 Assembly Print 5975, an act to amend the Mental
9 Hygiene Law, in relation to service as president
10 of boards of visitors.
11 SENATOR MARCELLINO: Lay it
12 aside.
13 ACTING PRESIDENT KUHL: Lay the
14 bill aside.
15 THE SECRETARY: Calendar Number
16 1258, by Senator Hannon, Senate Bill 1226-A.
17 SENATOR MARCELLINO: Lay it aside
18 for the day, please.
19 ACTING PRESIDENT KUHL: Lay the
20 bill aside for the day.
21 THE SECRETARY: Calendar Number
22 1226, by Senator Hannon or Senator Saland,
23 excuse me. Senate Print 5601A, an act to amend
9594
1 the Social Services Law and the Education Law,
2 in relation to the protection of pupils.
3 SENATOR GOLD: Explanation.
4 ACTING PRESIDENT KUHL: Senator
5 Saland, an explanation of Calendar Number 1286
6 has been asked for.
7 SENATOR SALAND: Thank you, Mr.
8 President.
9 Mr. President, this bill creates
10 a mechanism whereby we will be able to determine
11 who within the ranks of school employees, par
12 ticularly school teachers, school administrators
13 may, in fact, have been guilty of either
14 sexually abusing or physically abusing students
15 within their charge, and what we're doing in
16 this bill is to create a screening mechanism
17 starting off initially by requiring on
18 certification, teacher certification, a
19 screening against the central registry of abuse
20 and neglect to determine if, in fact, there has
21 been any evidence of child abuse.
22 We are creating a means by which
23 we will be able at long last to have a central
9595
1 repository, a registry again for those who, in
2 fact, have engaged in acts of abuse against
3 children within a school setting.
4 What we're doing is creating a
5 mechanism whereby the school administrator would
6 be responsible to report to district attorneys,
7 to law enforcement personnel, where an incident
8 had occurred within a school grounds or within a
9 school program that, in effect, would be lodged
10 with the Department of Education of where, in
11 fact, a conviction had resulted. Where there
12 would be no conviction or there would be an
13 acquittal or a dismissal, that record would be
14 expunged.
15 We're not dealing here with the
16 types of things such as are found in Article 10
17 of the Family Court Act which constitute
18 neglect. As I said in my earlier comments,
19 we're talking about abuse, physical abuse and
20 sexual abuse.
21 We are creating a mechanism which
22 is intended to do away with that rather onerous
23 silent resignation where a teacher or a school
9596
1 administrator has been charged with some act of
2 abuse against a child within his or her charge
3 and, in fact, remedies what appears to be that
4 person's problem by a so-called "silent
5 resignation" whereby it's agreed that everything
6 be dropped quietly. In return for no charges
7 being lodged, that person gets to go into
8 another school district with no record of this
9 event or incident having occurred, nobody having
10 any knowledge of it, where there they may then
11 again create the same type of gross misconduct
12 on the innocent children with whom they're
13 dealing.
14 Mr. Speaker, Mr. President,
15 excuse me. This -- this bill certainly com
16 ports well with the bill that Senator Nozzolio
17 passed earlier, I believe perhaps as recently as
18 yesterday in this house, and I think it's a bill
19 whose time has not merely come but is long over
20 due, particularly given some of the terrible
21 accounts we've seen in the media over the course
22 of the past several months, a number of events
23 having occurred out of the city of New York.
9597
1 ACTING PRESIDENT KUHL: Thank
2 you, Senator Saland. I can understand why my
3 antics today would have probably brought you
4 back some fond memories of having served in the
5 Assembly, but I would remind you that this is
6 the Senate.
7 SENATOR SALAND: Mr. President,
8 you would have stood with the best of them,
9 sir.
10 ACTING PRESIDENT KUHL: Senator
11 Paterson.
12 SENATOR PATERSON: Thank you,
13 sir. If now Senator Saland would like to yield
14 for a question.
15 ACTING PRESIDENT KUHL: Senator,
16 do you yield?
17 SENATOR SALAND: I yield, sir.
18 ACTING PRESIDENT KUHL: Senator
19 yields.
20 SENATOR PATERSON: Senator
21 Saland, the statewide child abuse registry, if
22 I'm correct, does not reveal any information
23 about allegations that have been made against
9598
1 individuals in their employment in the school
2 system. It has to do with family offenses, is
3 that not correct?
4 SENATOR SALAND: That's correct.
5 SENATOR PATERSON: In addition to
6 that, Senator, isn't it true that these offenses
7 were not necessarily sustained but they were
8 later -- they may have been, but they also may
9 include what are merely allegations, is that
10 true?
11 SENATOR SALAND: That's also
12 true, but I believe our bill has been crafted in
13 such fashion as to make sure that, in fact,
14 there's been a finding in the particular case
15 where those allegations have been made.
16 SENATOR PATERSON: Because one of
17 the things that worries me, if the Senator
18 continues to yield.
19 ACTING PRESIDENT KUHL: Do you
20 continue to yield? Senator Saland, do you
21 continue to yield?
22 SENATOR SALAND: Yes.
23 ACTING PRESIDENT KUHL: Senator
9599
1 yields.
2 SENATOR PATERSON: Often in a lot
3 of matrimonial actions, particularly custody
4 disputes, what often happens in the contentious
5 atmosphere is that the spouses get, you know,
6 some anonymous person to call up the child abuse
7 hot line and report the other one, and now
8 you've got these allegations against
9 individuals, neither of whom probably have
10 abused the child, but what it does, in my
11 opinion, maybe jeopardizes their future
12 employment because they're now on the child
13 abuse registry.
14 Isn't that a possibility that
15 that could happen?
16 SENATOR SALAND: No, that will
17 not happen here, and the key word, I would call
18 your attention on page 2, the second line, is an
19 "indicated child abuse report". The require
20 ment that the report be an indicated report
21 means, in fact, that it has been post
22 investigation and there has been a finding that
23 there was, in fact, an incident that warranted
9600
1 being maintained on the central registry as
2 distinguished from having been expunged.
3 ACTING PRESIDENT KUHL: Senator
4 Paterson.
5 SENATOR PATERSON: Mr. President,
6 if the Senator would continue to yield.
7 ACTING PRESIDENT KUHL: Senator
8 Saland, you continue to yield?
9 SENATOR SALAND: Yes, Mr.
10 President.
11 ACTING PRESIDENT KUHL: Senator
12 continues to yield.
13 SENATOR PATERSON: What I'd like
14 to ask you about is, in case there's a lawsuit
15 against the superintendent and the school
16 district, since the information is turned over
17 to law enforcement, you seem to have protected
18 the superintendent in your legislation. What
19 happens to the school district?
20 SENATOR SALAND: I'm not quite
21 sure I understand your question. Could you
22 repeat it or rephrase it?
23 SENATOR PATERSON: In other
9601
1 words, if the individual who is seeking the
2 employment or if their report is made against an
3 individual and they are now saying that the
4 report is fraudulent and they now sue on their
5 own behalf, the superintendent seems to be
6 covered under your legislation because the
7 superintendent has turned this information over
8 to law enforcement, but you -- I'm getting the
9 impression that the school district itself is
10 culpable or at least is a prospective party in
11 the lawsuit, and I want to know how you protect
12 the school district in this legislation.
13 SENATOR SALAND: Are you talking
14 within the context of the -- of the pre- -- the
15 pre-certification screen by the Department of
16 Education, or are you talking about the registry
17 where an incident has been reported and logged
18 under this new Article 23-B?
19 SENATOR PATERSON: Actually, I'm
20 talking about the incident that's logged.
21 SENATOR SALAND: Well, the only
22 thing that's going to be logged on that -- in
23 that particular registry is an incident that has
9602
1 resulted in a conviction because, if there is no
2 conviction, it's provided for in this bill that
3 the record be expunged.
4 ACTING PRESIDENT KUHL: Senator
5 Paterson.
6 SENATOR PATERSON: Senator, I
7 understand that. Maybe I'm just a little
8 confused and, believe me, after about seven
9 hours here, it is entirely possible that I am,
10 but what I'm really asking is that, if the
11 record is now expunged where, for the benefit of
12 the individual now, the individual seeks to sue
13 civilly because of damage to their reputation
14 and a number of tort actions that they might
15 pursue, what I'm asking you is, who would be
16 liable under the lawsuit?
17 In other words, the information
18 is erroneous, and now the individual is suing.
19 Who would be jeopardized by the law suit?
20 People do sue when they are -- feel they've been
21 wrongfully accused and they feel the information
22 is fraudulent and I'm just asking you who would
23 have to defend against such a lawsuit, if it was
9603
1 brought civilly?
2 SENATOR SALAND: I'm looking for
3 the section. There is a section here that
4 provides for immunity, and I believe it talks in
5 terms -
6 SENATOR PATERSON: Yes, but
7 Senator, that's what I'm saying before, the
8 immunity, I'm trying to get the section for
9 you. It's a little unfair to just haphazardly
10 ask you about some section of the bill, but what
11 I'm saying to you, the immunity seems very clear
12 from your legislation regarding the
13 superintendent.
14 Now, I'm asking you about the
15 actual district.
16 SENATOR SALAND: I would think
17 that the superintendent, acting on behalf of the
18 school district, certainly would be, if in
19 effect real -- a real party in interest and
20 certainly would be -- the school district
21 certainly would be inasmuch as he is the
22 principal agent, something akin to the CEO of a
23 school district, entitled to the very same -
9604
1 the very same immunity that we've provided for
2 here in the person of the -- of that
3 superintendent.
4 SENATOR PATERSON: Yes, Mr.
5 President, through you, Senator Stafford, I
6 would agree with that. I would just ask that
7 you take a look at it because some of the
8 educational associations have opposed the bill
9 feeling that they are left open to attack in
10 spite of the fact that once a report is made,
11 they turn the whole case over to law enforce
12 ment and so, you know, if you wouldn't mind just
13 checking to make sure that that's the case, that
14 that was an issue that was actually raised.
15 Mr. President, it's under section
16 1135 for Senator -
17 SENATOR SALAND: I just found it,
18 lines 38 to 42.
19 SENATOR PATERSON: Finally,
20 Senator -
21 ACTING PRESIDENT KUHL: Senator
22 Paterson.
23 SENATOR PATERSON: -- if you
9605
1 would yield to one last question.
2 ACTING PRESIDENT KUHL: Do you
3 yield to one last question?
4 SENATOR SALAND: Yes, Senator.
5 ACTING PRESIDENT KUHL: Senator
6 yields.
7 SENATOR PATERSON: Senator, how
8 do you assess the projected costs to the
9 district as to this administrative procedure?
10 SENATOR SALAND: Well, I'd assume
11 that the costs would be at best nominal. The
12 forms would be the report to the Department of
13 Education. The number of reported cases, using
14 the city of New York as an example, there are
15 some I believe 3689 cases that were reported
16 last year. I have to assume that we're talking
17 perhaps no more than dozens of cases.
18 The school district is no more
19 than a conduit for the placing of -- of the -
20 the complaint, the real work associated, the
21 investigative or investigatory work that's being
22 done is going to be done by the law enforcement
23 personnel so it's really no more than -- more
9606
1 than administrative on the part of the school
2 district.
3 SENATOR PATERSON: So the -- the
4 law enforcement personnel will man the -- and
5 will attend, I should say, to the telephone
6 calls?
7 SENATOR SALAND: No, no, no, no,
8 no. What I'm saying is, what the -- excuse me
9 for interrupting you, I'm sorry. I gave you a
10 series of noes and I didn't let you complete
11 your comment or question.
12 SENATOR PATERSON: No, no, no.
13 Go ahead. I think you understood what I was
14 saying.
15 SENATOR SALAND: The law
16 enforcement personnel will effectively be
17 determining through both their investigation
18 and, if appropriate, prosecution whether or not
19 this teacher or administrator is in fact going
20 to be found guilty. Once they're found guilty,
21 that gets logged on the registry. It gets
22 logged on the registry because they have to be
23 notified by the -- "they" being the school
9607
1 district has to be notified by the district
2 attorney that, in fact, this conviction has
3 occurred. Whatever the school district will do
4 will be again primarily ministerial, and so our
5 limited information available to us which comes
6 again primarily out of the experience in the
7 City, we're not talking -- certainly not talking
8 thousands of cases. We're probably not talking
9 hundreds of cases. I think we're talking more
10 something in the nature of dozens of cases, and
11 those types of cases would merely be reported.
12 It would not take a tremendous
13 amount of personnel or tremendous amount of
14 effort on the part of the school system to do
15 that.
16 SENATOR PATERSON: Thank you,
17 Senator.
18 ACTING PRESIDENT KUHL: Secretary
19 will read the last section.
20 Senator Dollinger.
21 SENATOR DOLLINGER: Will the
22 sponsor yield to a question?
23 ACTING PRESIDENT KUHL: Senator
9608
1 Saland, do you yield to Senator Dollinger?
2 SENATOR SALAND: Yes, Senator.
3 ACTING PRESIDENT KUHL: Senator
4 Saland yields.
5 SENATOR DOLLINGER: Senator, the
6 first question I have is, does this bill apply
7 to abuse only by an employee of the school
8 district against a student in the school, or
9 does -- do these obligations attach if the
10 school district becomes aware of abuse of the
11 child by some other third party that's not an
12 employee of the school district?
13 SENATOR SALAND: This applies
14 only to school employees.
15 SENATOR DOLLINGER: Mr.
16 President, through you, if the sponsor will
17 yield.
18 ACTING PRESIDENT KUHL: Senator
19 Saland, do you continue to yield?
20 SENATOR SALAND: There would be
21 -- I would assume if the school were -- if an
22 employee was aware of the fact that a child was
23 being abused, they would seek, in an environment
9609
1 outside of the school district, they would seek
2 to report that to the central registry or to
3 local law enforcement.
4 This is -- this bill is an effort
5 to deal with the abuse that has occurred from
6 time to time in schools, in different locations
7 throughout this state, and to create a mechanism
8 to not only try and curb that abuse by creating
9 a deterrent, but also to be able to determine
10 and follow those who engage in the abuse by
11 creating a registry so that they can't go from
12 one school district to another there to create
13 or perform similar offenses in another school
14 district.
15 SENATOR DOLLINGER: Right.
16 Through you, Mr. President, I concur with much
17 of the intent of this bill. I just want to make
18 sure I understand who it applies to and how it
19 works.
20 Again, if Senator Saland will
21 yield, Mr. President.
22 ACTING PRESIDENT KUHL: Senator
23 Saland?
9610
1 SENATOR SALAND: Yes, Mr.
2 President.
3 ACTING PRESIDENT KUHL: Senator
4 continues to yield.
5 SENATOR DOLLINGER: So could you
6 tell me what the current law provides if a
7 school employee determines that a child has been
8 abused outside the school setting? What
9 obligations are there on the school employee now
10 to report to law enforcement?
11 SENATOR SALAND: I don't believe
12 they're mandated reporting and, again, we are
13 not dealing within the context of this bill with
14 or attempting to deal with anything other than
15 abuse that's occurring within the confines of
16 school grounds or some sanctioned school program
17 or activity which would involve school
18 personnel.
19 SENATOR DOLLINGER: O.K. Again
20 through you, Mr. President, if Senator Saland
21 will continue to yield.
22 ACTING PRESIDENT KUHL: Senator
23 Saland, do you continue to yield. Senator
9611
1 continues to yield.
2 SENATOR SALAND: All of these
3 things, by the way, if I may just, are beyond
4 the current purview of the hotline reporting
5 system.
6 SENATOR DOLLINGER: Correct, and
7 I understand this goes -- the hotline reporting
8 system is you report to the hotline and the hot
9 line will try to assist the child or who's ever
10 reporting it, get details, and then get
11 information and get child neglect or child
12 protective services to come to the assistance of
13 the child. That's my understanding of at least
14 what happens in Monroe County.
15 But my second question is, I note
16 that in the bill there's a provision that deals
17 with penalties for school administrators to make
18 the report to the superintendent and then for
19 the superintendent to make a report to law
20 enforcement. Is -- my question is, is it your
21 intention to create civil liability on the part
22 of the school administrator, the school
23 superintendent and the school district if, for
9612
1 some reason, that doesn't happen?
2 SENATOR SALAND: If you're
3 talking about a situation in which, as
4 unfortunately seems to occur today where an
5 individual, in effect, negotiates either himself
6 or herself or through his or her attorney with
7 the school board or the school board's attorney,
8 where the allegations are hanging over his or
9 her head of child abuse or child sexual abuse
10 and the deal is cut for the charges to be
11 dropped because the school does not want the
12 notoriety associated with that particular type
13 of a situation then and that person is permitted
14 to resign and walk away scotfree, then my answer
15 -- then go to the next school district and
16 engage in the same type of mistreatment or mal
17 treatment, my answer to your question is yes.
18 SENATOR DOLLINGER: Through you,
19 one other -
20 ACTING PRESIDENT KUHL: Senator
21 Saland, you continue to yield?
22 SENATOR SALAND: Yes, Mr.
23 President.
9613
1 ACTING PRESIDENT KUHL: Senator
2 Saland continues to yield.
3 SENATOR DOLLINGER: One -- two
4 other questions. One is, this bill does not
5 require any threshold determination to be made
6 by anyone before it triggers the obligation to
7 report to additional agencies, is that correct?
8 For example, there's no requirement in this bill
9 that the school administrator determine that
10 there's reasonable cause to conclude that child
11 abuse has occurred and there's no requirement
12 that the superintendent of schools conclude that
13 there's reasonable evidence to support a
14 conclusion that the child abuse has occurred.
15 This bill simply says, if the allegation is
16 made, the allegation gets transmitted from
17 school administrator to the superintendent to
18 law enforcement to the commissioner without any
19 threshold determination of the reasonableness of
20 that allegation; is that correct?
21 SENATOR SALAND: Yes, that is -
22 that's correct, but we're not expecting these
23 people to be either judge or jury in making the
9614
1 determination. The determination as to whether
2 or not this conduct has been, in fact, engaged
3 in or it's more appropriate that the misconduct
4 will be engaged in, will be determined by law
5 enforcement personnel and where appropriate a
6 court, and there is provision for the record to
7 be expunged where, in fact, that -- there has
8 been a lack of evidence or insufficient evidence
9 to bring in a conviction or a plea.
10 SENATOR DOLLINGER: But in the
11 meantime, again through you, Mr. President, if
12 the Senator will yield.
13 ACTING PRESIDENT KUHL: Senator
14 Saland, do you continue to yield?
15 SENATOR DOLLINGER: Meantime, the
16 accused has all this information passed to all
17 these levels of government without one person
18 ever having decided that there's any reasonable
19 basis or, for that matter, any evidence other
20 than the simple allegation that says this person
21 committed child abuse.
22 SENATOR SALAND: Well, if we're
23 talking about physical abuse or child sexual
9615
1 abuse, and that's all we're talking about in
2 this bill, by definition, it would seem to me
3 that a prima facie case could well be made
4 either in the presence of a battered child, in
5 the person of a battered child or in the person
6 of a -- an abused, sexually abused child, and I
7 would assume that it's not the kind of thing
8 that (a) occurs indiscriminately and (b) when it
9 does occur, that the superintendent would
10 certainly, for the very reasons that you've
11 expressed or intimated your concern, that
12 superintendent would not willy-nilly lodge a
13 complaint unless there was some nexus, and again
14 that superintendent is not law enforcement.
15 That superintendent is not a prosecutor.
16 What this bill says, Mr. or Mrs.
17 or Ms. Superintendent, you will forward that
18 information and you will advise the appropriate
19 authorities and then the appropriate authorities
20 will step in and the appropriate authorities
21 will notify you at the conclusion as to whether
22 or not this has resulted in a plea or
23 conviction.
9616
1 SENATOR DOLLINGER: Again, Mr.
2 President, just so I clarify. Is -- Senator, I
3 don't see anything in this bill that says there
4 has to be any nexus or any objective evidences
5 or any reasonable evidence other than the actual
6 allegation to support the transfer of this
7 information. That's why, and my concern about
8 this is, here's my concern is that this
9 information, child comes to their gym teacher
10 and says, The assistant gym teacher touched me
11 in an inappropriate place.
12 Under your bill, that
13 administrator doesn't conduct any investigation,
14 doesn't have to get any other evidence. Under
15 your bill, it says that's an allegation made by
16 the child reported to the superintendent. The
17 superintendent gets the allegation, says, Is it
18 true? Is there any evidence of it? Is there any
19 indication; is there any corroboration?
20 The superintendent, under this
21 bill, would say, Doesn't matter, I got to call
22 the police. They call the police. The police
23 come out and begin to conduct an investigation.
9617
1 Meanwhile the commissioner knows, the
2 superintendent knows, the board of education
3 knows; but my question is no one has sat down
4 and said, What evidence do we have to support
5 this other than the allegation of the child?
6 SENATOR SALAND: Senator, I would
7 suggest to you that, if you're proposing to
8 superimpose some type of pre... prefiling or
9 investigation on the part of the superintendent,
10 you're attempting to impose a burden that we
11 impose nowhere else in the world. We don't
12 require anybody else, under any other facts and
13 circumstances, to pre-clear the filing or
14 lodging of a criminal instrument.
15 The prosecution -- the
16 prosecution of law enforcement personnel will
17 evaluate and make that decision whether or not
18 to go forward; so if you happen to be in a store
19 and walk into a store and see somebody lying -
20 lying at your feet and identify somebody running
21 away and you call, you're not responsible for
22 doing anything more than responding to what you
23 observed. If that person calls out to you and
9618
1 says, Mr. Dollinger, you know, John Jones did
2 it, please get to the phone, and you go to the
3 phone and you do it. Law enforcement then has
4 the responsibility of proving beyond a
5 reasonable doubt that that, in fact, is what
6 occurred.
7 I'm not prepared to say in these
8 circumstances that the perhaps most vulnerable
9 people on the face of this earth, young people
10 in a school setting, in the presence of people
11 to whom they've been told they can repose their
12 trust and confidence, that these young people
13 are going to be further victimized by creating
14 another hurdle in the way of -- of the effort to
15 try and provide them protection.
16 This provides protection right
17 down to expungement of records, and it also does
18 away with, I think, one of the most treacherous
19 -- or attempts to do away with one of the most
20 treacherous and heinous abuses of the system,
21 which is that so-called "silent resignation".
22 SENATOR DOLLINGER: You talk
23 about the silent resignation -- if I could, Mr.
9619
1 President, if Senator Saland would yield to one
2 other question.
3 ACTING PRESIDENT KUHL: Senator
4 Saland, you yield to one more question from
5 Senator Dollinger?
6 SENATOR SALAND: Yes, Mr.
7 President, I will.
8 ACTING PRESIDENT KUHL: Senator
9 yields.
10 SENATOR DOLLINGER: In my
11 experience, since I've represented a number of
12 teachers in "silent resignations" accused of
13 abuse, one of the things I've tried to determine
14 is whether the child would be able to withstand
15 cross-examination either in a criminal or civil
16 context as to whether or not they could truth
17 fully testify with enough conviction, for lack
18 of a better term, to obtain either a civil
19 determination that the teacher was incompetent
20 or engaged in inappropriate behavior or for that
21 matter obtain a criminal conviction that would
22 be supported by proof beyond a reasonable
23 doubt.
9620
1 My personal experience is that
2 this is terribly traumatic for children to have
3 to testify, and my question is, who makes that
4 determination in -- under your bill about
5 whether or not it's worthwhile for the child to
6 have to go to trial and face cross-examination
7 by a defense lawyer, cross-examination by a
8 lawyer under -- who's working on behalf of the
9 defendant, and who decides whether that's
10 appropriate or not?
11 SENATOR SALAND: Let me suggest
12 to you, at the expense of appearing
13 inappropriate, I would much prefer that someone
14 standing in your shoes not be the one who would
15 do that because I don't feel that you have -
16 whenever I say "you," someone representing the
17 school board really brings to the issue the kind
18 of detached professionalism, and I say that very
19 guardedly, that I think a district attorney
20 would bring to the issue working in conjunction
21 with the interested parties, which assumedly
22 would be the family of the child.
23 We've endeavored to provide
9621
1 mechanisms that make that less traumatic through
2 the use of cameras in courtrooms to remove the
3 child, being mindful of the right of
4 confrontation, from that particularly anguishing
5 type of an experience. But I would be reluctant
6 -- and I certainly do not mean this in any way,
7 shape or form as anything personal -- I would be
8 reluctant to recommend that the person who
9 advises people to make -- what decisions to make
10 in those situations, be somebody who is in
11 effect an agent of a school board.
12 SENATOR DOLLINGER: Again,
13 through you, Mr. President, if the sponsor will
14 continue to yield.
15 ACTING PRESIDENT KUHL: Senator
16 Saland, do you continue to yield? Senator
17 continues to yield.
18 SENATOR DOLLINGER: What do you
19 do in that situation if the parent of the child
20 says, "I don't believe my child is telling the
21 truth and I don't want them to testify?"
22 SENATOR SALAND: The parent is,
23 under this construct, a party to this proceed
9622
1 ing. You don't get that far unless the parent
2 has made the allegation.
3 SENATOR DOLLINGER: But doesn't
4 this provide that the child can make the
5 allegation?
6 SENATOR SALAND: We're -
7 SENATOR DOLLINGER: I believe on
8 page 3, line 45, it says the child can make the
9 allegation, and it doesn't suggest that the
10 parent can overrule the child or the parent
11 would have any role -
12 SENATOR SALAND: The bill talks
13 in terms of the child or the child's parent
14 making the allegation, and that would be in
15 section 1126 starting at line 7.
16 SENATOR DOLLINGER: And, Senator,
17 I apologize. What page?
18 SENATOR SALAND: Page 3, section
19 1126, starting at line 27.
20 SENATOR DOLLINGER: I believe
21 that's in section 1126. In 1128, it talks about
22 allegations.
23 SENATOR SALAND: 1128 defines
9623
1 further whenever the allegation has been made by
2 a child.
3 SENATOR DOLLINGER: Right, but my
4 question is, does the parent have no role in
5 that process if the child makes the allegation?
6 What do you do if the parent says, "I don't
7 think my child is telling the truth? I don't
8 think there's any evidence of abuse at all."
9 SENATOR SALAND: I would think
10 that that would be something which would be
11 resolved, as would a similar situation in a
12 non-school district setting be resolved -- would
13 be resolved between the parents and the
14 prosecutor. A prosecutor -- if a prosecutor
15 determines that they don't have the ability to
16 establish their case and, if the parents of the
17 child in question are either affording evidence
18 to the contrary or are suggesting for whatever
19 reason that the child is unreliable, I would
20 assume that would be a factor that the district
21 attorney would consider and certainly would not
22 waste resources in a -- in a case in which given
23 the burden of beyond a reasonable doubt, they
9624
1 had evidence indicating that they couldn't quite
2 make that burden.
3 SENATOR DOLLINGER: One more
4 question, Mr. President. If all these cases are
5 going to be resolved by the district attorney,
6 what happens if, in the case I just described;
7 that is, the parent doubts the child's word, and
8 we go to the district attorney, the district
9 attorney listens to the parent, concludes that
10 the child is not credible and so the district
11 attorney takes no action, does the school board
12 -- how does the school board discipline that
13 teacher if the district attorney has already
14 said, We're not going to prosecute them? They
15 can't discipline the teacher at all, can they,
16 even if there might be a preponderance of the
17 evidence that suggests they might be guilty?
18 SENATOR SALAND: The school board
19 is in no way, shape or form, by reason of this
20 bill, in any way, shape or form prevented from
21 doing whatever it is that they would do now. I
22 have no idea what they would do, but there's
23 nothing here that increases that burden or
9625
1 diminishes that burden.
2 If, in fact, there's reason to
3 believe that there is a preponderance of
4 evidence indicating that the teacher has engaged
5 in some conduct -- misconduct, but it's not
6 adequate for a district attorney to prove their
7 case beyond a reasonable doubt, I don't know if
8 a 30.20(a) hearing would be appropriate, I
9 really don't have any idea. I really don't
10 possess that kind of expertise, but we've done
11 nothing to change the existing law.
12 If this law wasn't on the books
13 and someone filed a complaint directly with the
14 district attorney and the district attorney
15 said, scratching their head, "Well, it doesn't
16 seem quite right, but we really can't prove our
17 case, you'd be putting yourselves and a child
18 through a tremendous ordeal with very little
19 likelihood of a conviction, I'm -- I'm afraid
20 this would be too much for you," and the family
21 decides they don't want to pursue it any
22 further, what would a school district do now?
23 SENATOR DOLLINGER: At that
9626
1 point, Mr. President, that's, I guess, what my
2 question is. At that point, the school board
3 has no leverage at all to try to impose any
4 discipline at all. The whole reason why the
5 silent resignation has at least resulted in a
6 penalty for a teacher and at least in my
7 district someone leaves after 20 years of
8 teaching in a school district, you know every
9 school superintendent in the community knows
10 that you don't leave a job you've been in 20
11 years for no reason at all, you left because
12 there was a problem and in most cases, the
13 school superintendents know that that problem
14 exists.
15 The problem is, the leverage in
16 those negotiations is you leave because we will
17 take you to trial, we'll take you to a 30.20 (a)
18 and we're going to put this child on the stand
19 and have him testify against you. You use the
20 leverage to get the result. It may not be
21 perfect and it may not achieve the goal that you
22 want to achieve which, by the way, Senator, I'll
23 say is a very proper goal. If there is a way to
9627
1 protect children from child abuse by school
2 officials in this state, we ought to do it, and
3 I support that.
4 Parts of this bill will achieve
5 that, but my concern is, and I'm not quite sure
6 how I'm going to vote on this, but I'm concerned
7 about the question of whether this bill really
8 gets to that goal. If we put all our eggs in
9 the criminal prosecution basket as this bill
10 suggests we should, we run the risk that, if
11 they decide not to prosecute because we got to
12 prove by that -- beyond a reasonable doubt
13 standard in many cases based on the testimony of
14 the child alone, and I'll just tell you in my
15 experience the most horrid case I dealt with
16 involved 12- and 13-year-old girls who were at
17 high risk categories who had had all kinds of
18 physical and psychological abuse, made an
19 allegation against a teacher. We conducted a
20 two-month investigation. That school district
21 spent $30,000 paying me and other people to
22 interview the witnesses, to find out whether it
23 was true, and I finally made a report to the
9628
1 school district that said, I think this witness
2 is probably telling the truth, but the stories
3 changed three or four times, and I'm afraid that
4 this child will be subjected to even worse abuse
5 when she has to try to recount it on the stand
6 consistently and hold up to cross-examination.
7 We ended that case with a silent
8 resignation. It may not have been the right
9 thing to do. It was what we tried to do under
10 the system, and I think this bill has some good
11 parts to it. I think it's got some questionable
12 parts to it. I just don't know whether it gets
13 to that goal. I appreciate you trying to
14 address this, because this is a terrible issue
15 and, frankly, that teacher should never, never
16 teach again. Fortunately, the best of my
17 information he hasn't, and we did everything we
18 could to make sure that he wouldn't, but I'm
19 just not so sure that, given the way this bill
20 is constructed, that it will achieve that goal.
21 I, frankly, don't know how I'm
22 going to vote, but I wanted you to hear my
23 concerns with it.
9629
1 SENATOR STAVISKY: Mr. President.
2 ACTING PRESIDENT KUHL: Senator
3 Stavisky.
4 SENATOR STAVISKY: Will the
5 sponsor yield to a very few questions, and I'll
6 make it brief.
7 ACTING PRESIDENT KUHL: Will the
8 Senator yield? Senator yields.
9 SENATOR STAVISKY: Senator
10 Saland, what does your legislation do in
11 creating a procedure for reporting and
12 investigating child abuse by employees in
13 non-public schools?
14 SENATOR SALAND: This bill does
15 not address the non-public school.
16 SENATOR STAVISKY: I know it
17 doesn't. Do you think that it should?
18 SENATOR SALAND: It probably
19 should, but it doesn't.
20 SENATOR STAVISKY: What would you
21 suggest to cover and protect children in all
22 types of educational institutions?
23 SENATOR SALAND: I would assume
9630
1 that it would be appropriate to -- to cover
2 anybody and everybody. Child abuse is child
3 abuse, whether it's in a public or a private
4 school.
5 SENATOR STAVISKY: Would you
6 favor broadening your bill to include such
7 situations?
8 SENATOR SALAND: I certainly,
9 when we finish with this leg of it, I certainly
10 will be more than happy to bring back something
11 dealing with private schools as well.
12 SENATOR STAVISKY: Thank you.
13 ACTING PRESIDENT KUHL: Secretary
14 will read the last section.
15 THE SECRETARY: Section 5. This
16 act shall take effect on the 1st day of
17 January.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll. )
21 ACTING PRESIDENT KUHL: Announce
22 the results.
23 THE SECRETARY: Ayes 60.
9631
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 SENATOR PATERSON: No.
4 SENATOR MARCELLINO: Mr.
5 President.
6 ACTING PRESIDENT KUHL: Senator
7 Marcellino.
8 SENATOR MARCELLINO: Before
9 Senator Paterson rises in abject indignation,
10 may we recognize Senator Santiago, please.
11 ACTING PRESIDENT KUHL: The Chair
12 recognizes Senator Santiago.
13 SENATOR SANTIAGO: Mr. President,
14 I'd like to be recognized in the negative on
15 Calendar Number 1269 and 1097, please.
16 ACTING PRESIDENT KUHL: Without
17 objection, Senator Santiago, and hearing no
18 objection Senator Santiago will be recorded in
19 the negative on Calendars Number 1269 and 1097.
20 Senator Mendez.
21 SENATOR MENDEZ: Mr. President, I
22 was out of the chamber in a meeting of the Rules
23 Committee. I would like to be recorded in the
9632
1 negative on bill number, Calendar Number 1269.
2 ACTING PRESIDENT KUHL: Without
3 objection, hearing no objection, Senator Mendez
4 will be recorded in the negative on Calendar
5 Number 1269.
6 Secretary will continue to call
7 the controversial calendar.
8 THE SECRETARY: Calendar Number
9 1290, by Senator Rath, Senate Print 5359, an act
10 to amend the Civil Practice Law and Rules and
11 the Executive Law, in relation to extending the
12 statute of limitations.
13 ACTING PRESIDENT KUHL: Secretary
14 will read the last section.
15 THE SECRETARY: Section 3. This
16 act shall take effect January 1.
17 ACTING PRESIDENT KUHL: Call the
18 roll.
19 (The Secretary called the roll. )
20 THE SECRETARY: Ayes 60.
21 ACTING PRESIDENT KUHL: The
22 bill's passed.
23 Senator Marcellino.
9633
1 SENATOR MARCELLINO: Mr.
2 President, may we please return to reports of
3 standing committees? I believe there is a
4 report of the Rules Committee at the desk.
5 ACTING PRESIDENT KUHL: You're
6 correct, Senator Marcellino, there is a report
7 of the Rules Committee at the desk. We'll
8 return to the reports of standing committees.
9 The Secretary will read the Rules report.
10 THE SECRETARY: Senator Bruno,
11 from the Committee on Rules, reports the
12 following bills:
13 Senate Print 701, by Senator
14 Padavan, an act to amend the Social Services
15 Law, in relation to ineligibility of lawfully
16 admitted aliens;
17 1297A, by Senator Lack, an act to
18 amend the Surrogate's Court Procedure Act, in
19 relation to the statute of limitations;
20 2829, by Senator Skelos, an act
21 to amend the General Obligations Law, in
22 relation to compensation for injury;
23 3092, by Senator Padavan, an act
9634
1 to amend the Social Services Law, in relation to
2 the exclusion of illegal aliens;
3 3093, by Senator Padavan, an act
4 to amend the Social Services Law, in relation to
5 the exclusion of illegal aliens from receiving
6 public assistance and care;
7 3251, by Senator Paterson, an act
8 to authorize the city of New York to reconvey
9 certain real property;
10 3520, by Senator DeFrancisco, an
11 act to amend the Social Services Law, in
12 relation to the transportation of certain
13 persons;
14 3882B, by Senator Rath, an act to
15 amend the Tax Law, in relation to extending the
16 effectiveness of the one percent increase in
17 sales and compensating use tax in Genesee
18 County;
19 3883, by Senator Rath, an act to
20 amend the Tax Law, in relation to imposing a
21 hotel and motel tax in the county of Genesee;
22 3908, by Senator Leibell, an act
23 to amend the Local Finance Law, in relation to
9635
1 contracting indebtedness;
2 4170, by Senator Cook, an act to
3 amend the Tax Law, in relation to the imposition
4 of additional taxes in the county of Ulster;
5 4509, by Senator Saland, an act
6 to amend the Not-For-Profit Corporation Law, in
7 relation to eliminating limitations;
8 4513A, by Senator Seward, an act
9 to amend the Executive Law, in relation to fire
10 prevention and building code standards;
11 4805, by Senator Maziarz, an act
12 to amend the Public Health Law, in relation to
13 notification of parents;
14 4811A, by Senator Maziarz, an act
15 to authorize and validate the creation of a
16 volunteer firefighter service award program;
17 4871A, by Senator Cook, an act to
18 amend the Tax Law, in relation to the rate of
19 sales and compensating use tax;
20 4902A, by Senator Sears, an act
21 in relation to the calculation of average daily
22 attendance and minimum days of session for an
23 experimental kindergarten program;
9636
1 4958A, by Senator Skelos, an act
2 to amend the Public Service Law, in relation to
3 the elimination of the mandate for the Public
4 Service Commission;
5 4960A, by Senator Skelos, an act
6 to amend the Arts and Cultural Affairs Law, in
7 relation to copyrights;
8 5045, by Senator Velella, an act
9 to amend the Vehicle and Traffic Law, in
10 relation to authorizing a residential parking
11 system;
12 5172, by Senator Hoblock, an act
13 to amend the Tax Law, in relation to the
14 imposition of sales and use taxes by the county
15 of Albany;
16 5286A, by Senator Leibell, an act
17 to amend the Private Housing Finance Law, in
18 relation to tax exemption;
19 5304, by Senator Seward, an act
20 to amend the Tax Law, in relation to extending
21 the expiration of provisions;
22 5308, by Senator Kuhl, an act to
23 amend the Public Health Law, in relation to
9637
1 continuing the Agricultural Health and Safety
2 Advisory Board;
3 5310, by Senator Velella, an act
4 to amend the Workers' Compensation Law, in
5 relation to permitting the State Insurance Fund
6 to enter agreements;
7 5327, by Senator Sears, an act to
8 amend the Tax Law, in relation to extending the
9 effectiveness of provisions authorizing the
10 county of Oneida to impose an additional one
11 percent of sales and compensating use taxes;
12 5352, by Senator Stachowski, an
13 act to authorize the city of Buffalo, Erie
14 County, to lease certain park lands;
15 5366, by Senator Saland, an act
16 to amend the Environmental Conservation Law, in
17 relation to taking of Atlantic menhaden and
18 mullets;
19 And 4546, by Senator Jones, an
20 act authorizing the town of Irondequoit, Monroe
21 County, to make available to Samuel Soprano,
22 Jr., membership in the optional 20-year
23 retirement plan for firemen and policemen.
9638
1 All bills reported directly for
2 third reading.
3 ACTING PRESIDENT KUHL: Senator
4 Marcellino.
5 SENATOR MARCELLINO: Mr.
6 President, move to accept the report of the
7 Rules Committee.
8 ACTING PRESIDENT KUHL: The
9 motion is to accept the report of the Rules
10 Committee.
11 All in favor say aye.
12 (Response of "Aye.")
13 Opposed nay.
14 (There was no response.)
15 The Rules Committee report is
16 accepted.
17 SENATOR MARCELLINO: Is there any
18 housekeeping at the desk?
19 ACTING PRESIDENT KUHL: Yes there
20 is. The Chair would recognize Senator Saland.
21 SENATOR SALAND: On behalf of
22 Senator Levy, I would move to amend Senate Print
23 3176A by striking out the amendments made on May
9639
1 12th and restoring it to its original print
2 3176.
3 ACTING PRESIDENT KUHL:
4 Amendments are received and adopted; bill will
5 return to its original print.
6 Senator Saland.
7 SENATOR SALAND: Mr. President,
8 on behalf of Senator Libous, on page 46, I offer
9 the following amendments to Calendar Number 663,
10 Senate Print 3929, and ask that the bill retain
11 its place on Third Reading Calendar.
12 ACTING PRESIDENT KUHL:
13 Amendments to 363 are received and adopted. The
14 bill will retain its place on the Third Reading
15 Calendar.
16 Senator Marcellino.
17 SENATOR MARCELLINO: Mr.
18 President, there being no further business, I
19 move we adjourn until Wednesday, June 14th, at
20 10:00 a.m., and please don't break the hammer.
21 ACTING PRESIDENT KUHL: Without
22 objection, the Senate stands adjourned until
23 tomorrow, June 14th, at 10:00 a.m.
9640
1 (Whereupon at 6:03 p.m., the
2 Senate adjourned.)
3
4
5
6
7