Regular Session - May 14, 1996
4945
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8 ALBANY, NEW YORK
9 May 14, 1996
10 3:05 p.m.
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13 REGULAR SESSION
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16
17 SENATOR JOHN R. KUHL, JR., Acting President
18 STEPHEN F. SLOAN, Secretary
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4946
1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order. Ask the members to
4 find their places, the staff to find their
5 places. I'd ask all of you to rise, including
6 those people in the gallery, and join with me in
7 saying the Pledge of Allegiance, and please
8 remain standing for the invocation.
9 (The assemblage repeated the
10 Pledge of Allegiance to the Flag.)
11 We're very pleased to have the
12 Reverend Peter G. Young of the Blessed Sacrament
13 Church of Bolton Landing to deliver the
14 invocation.
15 Reverend Young.
16 REVEREND PETER YOUNG: Let us
17 pray. May we pray for the officers and for the
18 sheriffs and for correction officers too who are
19 remembered in special ceremonies on this most
20 important day of honor. These dedicated public
21 servants are deserving of our prayers so they
22 may compassionately monitor the behavior of
23 those that are hungry, those that are homeless,
4947
1 those who are denied dignity and those who have
2 no hope, that this legislative body will improve
3 the condition of both the custodians and those
4 who are in custody, that their condition and our
5 compassionate efforts will remove the causes of
6 their suffering. We ask You this now and
7 forever more. Amen.
8 ACTING PRESIDENT KUHL: Thank
9 you.
10 Reading of the Journal.
11 THE SECRETARY: In Senate,
12 Monday, May 13th. The Senate met pursuant to
13 adjournment. The Journal of Sunday, May 12th,
14 was read and approved. Upon motion, the Senate
15 adjourned.
16 ACTING PRESIDENT KUHL: Hearing
17 no objection, the Journal stands approved as
18 read.
19 Presentation of petitions.
20 Messages from the Assembly.
21 Messages from the Governor.
22 Reports of standing committees.
23 Reports of select committees.
4948
1 Communications and reports from
2 state officers.
3 Motions and resolutions.
4 The Chair recognizes Senator
5 Farley.
6 SENATOR FARLEY: Thank you, Mr.
7 President.
8 On behalf of Senator Cook, would
9 you please remove the sponsor's star from
10 Calendar 412.
11 ACTING PRESIDENT KUHL: At the
12 request of the sponsor, Calendar Number 412 is
13 unstarred.
14 SENATOR FARLEY: On behalf of
15 Senator Goodman, on page 18, I offer the
16 following amendments to Calendar 493, Senate
17 Print 3040, and I ask that that bill retain its
18 place on the Third Reading Calendar.
19 ACTING PRESIDENT KUHL: The
20 amendments to Calendar Number 493 are received
21 and adopted. The bill will retain its place on
22 the Third Reading Calendar.
23 Senator Tully.
4949
1 SENATOR TULLY: Thank you, Mr.
2 President.
3 I believe I have a resolution at
4 the desk. May I have that resolution read in
5 its entirety, after which I would like to make a
6 few brief comments.
7 ACTING PRESIDENT KUHL: There is
8 a privileged resolution.
9 Senator DeFrancisco.
10 SENATOR DeFRANCISCO: Mr.
11 President, I'd suggest that before we read that
12 privileged resolution, that on behalf of Senator
13 Marchi, I would be able to call an immediate
14 meeting of the Finance Committee in Room 332.
15 ACTING PRESIDENT KUHL: There
16 will be an immediate meeting of the Senate
17 Finance Committee in the Majority Conference
18 Room, Room 332. Immediate meeting of the Senate
19 Finance Committee in Room 332, the Majority
20 Conference Room.
21 Thank you for the announcement,
22 Senator DeFrancisco.
23 There is a privileged resolution,
4950
1 Senator Tully, at the desk.
2 Senator DeFrancisco.
3 SENATOR DeFRANCISCO: Please read
4 the privileged resolution.
5 ACTING PRESIDENT KUHL: I'll ask
6 the Secretary to read the privileged resolution
7 in its entirety.
8 THE SECRETARY: By Senator Tully,
9 Legislative Resolution commending the 1996
10 Senior Class of Henry Viscardi School of
11 Albertson, New York, upon the occasion of their
12 visit to the New York State Legislature on
13 Tuesday, May 14th, 1996.
14 WHEREAS, it is the sense of this
15 legislative body that the character and quality
16 of life in this great Empire State is abundantly
17 enriched by organizations which selflessly serve
18 to promote the health and welfare of the
19 citizenry.
20 This legislative body is justly
21 proud to commend the 1996 Senior Class of Henry
22 Viscardi School, Albertson, New York upon the
23 occasion of their visit to the New York State
4951
1 Legislature on Tuesday, May 14th, 1996.
2 The Henry Viscardi School is a
3 New York State chartered, tuition-free school
4 educating more than 220 children between the
5 ages of 3 to 21 and with severe orthopedic
6 disabilities, over two-thirds of the school's
7 graduates go on to higher education, which is
8 more than three times the national average of 20
9 percent.
10 The Henry Viscardi School
11 provides a full range of educational, remedial,
12 therapeutic, social and recreational services
13 provided through preschool, kindergarten,
14 elementary and secondary school programs and
15 extended-year summer programs.
16 The National Center for
17 Disabilities Services founded by Henry Viscardi
18 had its humble beginnings in 1952 operating out
19 of a garage in West Hempstead and now occupies a
20 14-acre wooded campus in Albertson, New York
21 serving over 4,000 adults and children annually.
22 The Center is a non-profit agency
23 dedicated to empowering people with disabilities
4952
1 to be active, independent and self-sufficient
2 participants in our society. It accomplishes
3 its missions through education, training,
4 research, leadership and example.
5 The Center is internationally
6 known and hosts visitors from around the world
7 who come to learn about its successes in
8 preparing individuals for meaningful careers.
9 Its visitors have included the Emperor and
10 Empress of Japan.
11 The Center received one of the
12 highest honors last September 14th, 1995 when it
13 received the United States Department of Labor
14 Exemplary Public Interest Contribution Award.
15 This award is based on nationwide competition
16 and is presented annually to organizations who
17 exhibit unparalleled leadership in assisting
18 disadvantaged Americans into competitive
19 employment.
20 The Center's work is conducted
21 through the Henry Viscardi School, the Career
22 and Employment Institute which evaluates, trains
23 and counsels adults with disabilities and the
4953
1 Research and Training Institute which conducts
2 research on the education, employment and career
3 development of persons with disabilities.
4 The members of the 1996 Senior
5 Class of the Henry Viscardi School include
6 Daniel Abroff, Stephen Anderson, Tara Baird,
7 Jeffrey Betts, Jennifer Bryan, Ben Chan, Rachael
8 Eriksen, Keith Gaynor, Michael Macaluso, Michael
9 Muller, Wesley Nepomuceno, Jon Paul Povoromo,
10 Dorsey Ross, Jason Sawyer, Tyree Simpson, Kelly
11 Smith and Meredith Stanley; now, therefore, be
12 it
13 RESOLVED, that this legislative
14 body pause in its deliberations to express its
15 appreciation to Henry Viscardi School for
16 meeting the special needs of hundreds of
17 children in New York State and to extend a warm
18 welcome to the faculty and students on their
19 visit to Albany; and be it further
20 RESOLVED, that copies of this
21 resolution, suitably engrossed, be transmitted
22 to the students and faculty of Henry Viscardi
23 School, Willets Road, Albertson, New York.
4954
1 ACTING PRESIDENT KUHL: Senator
2 Tully, on the resolution.
3 SENATOR TULLY: Thank you, Mr.
4 President.
5 Today we have the honor of
6 hosting Dr. Andrew Rothstein and the Senior
7 Class of the Henry Viscardi School as our guests
8 in the chamber. The Henry Viscardi School in
9 Albertson, New York specializes in educating
10 students with severe physical disabilities from
11 throughout the New York Metropolitan region.
12 This year, the senior class
13 decided to come to Albany to witness the New
14 York State Senate in action. These students
15 whose special brand of strength and determin
16 ation has enabled them to overcome their
17 disabilities and instead focus on their
18 abilities and talents, are among the most gifted
19 students that I have ever met.
20 This year's class has 17
21 graduating seniors, all of whom have made
22 post-graduate plans. Some have made plans to go
23 to college and some have made plans for a
4955
1 transition into vocational training programs.
2 Whatever their intention, knowing these young
3 adults in the school from which they come, I'm
4 sure that each will be an important and
5 productive member of society.
6 Mr. President, I hope all of my
7 colleagues will join me in welcoming the Senior
8 Class of the Henry Viscardi School to Albany.
9 ACTING PRESIDENT KUHL: Senator
10 Marcellino on the resolution.
11 SENATOR MARCELLINO: Yes, Mr.
12 President. I rise to speak on behalf of the
13 Henry Viscardi School. At Senator Tully's
14 request, I was given a tour, amongst others, of
15 this very fine institution, and I had a chance
16 to meet Mr. Viscardi himself, who is well and we
17 wish him well and many, many more years of
18 active services of our communities.
19 The Viscardi school is a gem.
20 It's one of those institutions that makes Long
21 Island one of the finest places in our state to
22 live and raise a family, and it's a pleasure to
23 rise in support of this resolution, and I thank
4956
1 Senator Tully for bringing it to the attention
2 of this chamber.
3 ACTING PRESIDENT KUHL: Is there
4 any other Senator wishing to speak on the
5 resolution?
6 Senator Hannon on the resolution.
7 SENATOR HANNON: Yes. I just
8 wanted to join with Senator Tully, join with the
9 seniors today. Congratulations on your
10 achievements. Best wishes to the future. As
11 Senator Marcellino said, you are a part of a
12 school that does us all proud, and we're
13 delighted you took the time to come and join us
14 here and make us aware of what a fine
15 institution you have in Long Island.
16 Thank you.
17 ACTING PRESIDENT KUHL: Senator
18 Smith, on the resolution.
19 SENATOR SMITH: Thank you, Mr.
20 President.
21 I too would like to join with my
22 colleagues in welcoming the Henry Viscardi
23 School to Albany. Last year I had the pleasure
4957
1 of meeting one of the students, Dean Maiorano,
2 who then became my scholarship awardee for 1995
3 who has gone on to college.
4 Dean is doing a wonderful job,
5 and I expect the same from each and every one of
6 you because you are capable of doing whatever it
7 is you want to do, and it's because of the Henry
8 Viscardi School that you will be able to go on
9 and have a productive life, and we thank them
10 for all that they do.
11 ACTING PRESIDENT KUHL: Any other
12 Senator wishing to speak on the resolution?
13 (There was no response.)
14 This resolution was previously
15 adopted in the chamber on April 30th, but on
16 behalf of Senator Tully and all the Senators,
17 Senator Bruno, we welcome the 1996 Senior Class
18 from Henry Viscardi School of Albertson, New
19 York here in the chamber today. Hope you enjoy
20 your day and thank you for sharing a little bit
21 of your life with us. Thank you.
22 (Applause)
23 Senator DeFrancisco.
4958
1 SENATOR DeFRANCISCO: I believe
2 there's a privileged resolution at the desk by
3 Senator Spano, and I'd move that the title be
4 read and move for its adoption.
5 ACTING PRESIDENT KUHL: Senator
6 DeFrancisco, there is a privileged resolution at
7 the desk.
8 I'll ask the Secretary to read
9 the title.
10 THE SECRETARY: By Senator Spano,
11 Legislative Resolution welcoming Eastchester
12 Police Officer Richard Morrissey to the state
13 Capitol and expressing sincerest sorrow upon the
14 death of his heroic comrade, Police Officer
15 Michael Frey of Yonkers, New York.
16 ACTING PRESIDENT KUHL: Senator
17 Spano, on the resolution.
18 SENATOR SPANO: Thank you, Mr.
19 President.
20 My colleagues, on March 21st, we
21 all remember too vividly the headlines across
22 New York State when a police officer was killed
23 in Westchester County, and it was that day that
4959
1 it was Eastchester Town Police Officer Rich
2 Morrissey and his fellow officer, Michael Frey,
3 who responded to what they thought was initially
4 just a routine police call about a man acting
5 suspiciously in a neighborhood.
6 Moments after Officers Frey and
7 Morrissey arrived, a sniper opened fire from a
8 second floor window of his house in Eastchester.
9 Officer Frey was shot and killed in that
10 incident, and Officer Morrissey was shot from
11 that gunfire and has since been recovered, and
12 the gunman, of course, then killed himself some
13 14 hours after ambushing these police officers.
14 I'm pleased that Officer
15 Morrissey is with us today in the chamber. I
16 can say that with him, with his wife Mary, with
17 his beautiful daughter Margaret, Officer
18 Morrissey, you are a living symbol of every
19 police officer who every day puts a badge and a
20 gun and uniform on and is just not sure what
21 kind of day they're going to have, and that
22 there are people in this community and
23 communities all across this state and nation
4960
1 where trouble and danger just lurk even from
2 what is the most seemingly routine of calls that
3 they may be responding to.
4 So it's my pleasure, Mr.
5 President, my colleagues, to offer this
6 resolution on this day where we memorialize the
7 ultimate sacrifice that police officers have
8 made in this state of New York and to say that
9 we join with the Attorney General today who
10 presented Officer Morrissey with the Law and
11 Order Award, along with seven other police
12 officers in this state, and I'll ask all of you
13 to please join me in recognizing a person who's
14 a real hero, Officer Richard Morrissey, his wife
15 Mary and their daughter Margaret.
16 Thank you, Mr. President.
17 (Applause)
18 ACTING PRESIDENT KUHL: Any other
19 Senator wishing to speak on the resolution?
20 (There was no response.)
21 The question is on the
22 resolution. All those in favor signify by
23 saying aye.
4961
1 (Response of "Aye".)
2 Opposed, nay.
3 (There was no response.)
4 The resolution is adopted.
5 Senator DeFrancisco.
6 SENATOR DeFRANCISCO: Mr.
7 President, at this time may we adopt the
8 Resolution Calendar.
9 ACTING PRESIDENT KUHL: The
10 question is to adopt the Resolution Calendar.
11 All those in favor signify by saying aye.
12 (Response of "Aye".)
13 Opposed, nay.
14 (There was no response.)
15 The Resolution Calendar is
16 adopted.
17 Senator DeFrancisco, there are a
18 couple of substitutions at the desk we could
19 take up at this time, if you desire.
20 SENATOR DeFRANCISCO: Please make
21 the substitutions.
22 ACTING PRESIDENT KUHL: The
23 Secretary will read the substitutions.
4962
1 THE SECRETARY: On page 55,
2 Senator Maltese moves to discharge from the
3 Committee on Rules, Assembly Bill Number 5501-B
4 and substitute it for the identical Senate Bill
5 3082.
6 On page 55, Senator Maltese moves
7 to discharge from the Committee on Rules,
8 Assembly Bill 5502-B and substitute it for the
9 identical Senate Bill 6994.
10 ACTING PRESIDENT KUHL: The
11 substitutions are ordered.
12 SENATOR DeFRANCISCO: Mr.
13 President, at this time would you read the
14 non-controversial calendar.
15 ACTING PRESIDENT KUHL: The
16 Secretary will read the non-controversial
17 calendar.
18 THE SECRETARY: On page 13,
19 Calendar Number 333, by -
20 SENATOR GOLD: Lay it aside,
21 please.
22 THE SECRETARY: -- Senator
23 Volker, Senate Print 6041, an act to amend the
4963
1 Criminal Procedure Law, in relation to the
2 authority of police officers to investigate
3 criminal activity.
4 ACTING PRESIDENT KUHL: Lay the
5 bill aside.
6 THE SECRETARY: Calendar Number
7 631, by Senator Levy, Senate Print 6592-A, an
8 act to amend the Vehicle and Traffic Law, in
9 relation to authorizing and directing the
10 Department of Motor Vehicles to develop and
11 implement a demonstration project.
12 ACTING PRESIDENT KUHL: The
13 Secretary will read the last section.
14 THE SECRETARY: Section 4. This
15 act shall take effect immediately.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll.)
19 THE SECRETARY: Ayes 49.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 THE SECRETARY: Calendar Number
23 636, by Senator Hoblock, Senate Print 6736, an
4964
1 act to amend the Transportation Law, in relation
2 to regulation of motor buses.
3 ACTING PRESIDENT KUHL: The
4 Secretary will read the last section.
5 THE SECRETARY: Section 2. This
6 act shall take effect immediately.
7 SENATOR GOLD: Lay it aside.
8 ACTING PRESIDENT KUHL: Lay the
9 bill aside.
10 THE SECRETARY: Calendar Number
11 651, by Senator Holland, Senate Print 5789-A, an
12 act to amend the General Municipal Law, in
13 relation to indexing the interest rate on
14 judgments.
15 SENATOR GOLD: Lay it aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 671, by Senator Holland, Senate Print 201, an
20 act to amend the Vehicle and Traffic Law, in
21 relation to optional equipment for omnibuses.
22 SENATOR PATERSON: Lay it aside.
23 ACTING PRESIDENT KUHL: Lay the
4965
1 bill aside.
2 THE SECRETARY: Calendar Number
3 686, by Senator Maziarz, Senate Print 6893, an
4 act to amend the Highway Law, in relation to
5 designating a portion of the state highway
6 system.
7 SENATOR PATERSON: Lay it aside.
8 ACTING PRESIDENT KUHL: Lay the
9 bill aside.
10 THE SECRETARY: Calendar Number
11 692, by Senator Libous, Senate Print 4472, an
12 act to amend the Penal Law, in relation to
13 increasing the penalties for repeat convictions
14 of assault.
15 SENATOR PATERSON: Lay it aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 728, by Member of the Assembly Vitaliano, Assem
20 bly Print 9530, an act to amend the Retirement
21 and Social Security Law, in relation to
22 retirement allowance option.
23 ACTING PRESIDENT KUHL: The
4966
1 Secretary will read the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 50.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 743, by Senator Maltese, Senate Print 490, an
12 act to amend the Public Authorities Law, in
13 relation to providing for free passage for
14 active duty military personnel.
15 SENATOR PATERSON: Lay it aside.
16 ACTING PRESIDENT KUHL: Lay the
17 bill aside.
18 THE SECRETARY: Calendar Number
19 745, by Senator LaValle, Senate Print 3508, an
20 act to amend the Vehicle and Traffic Law, in
21 relation to distinctive plates for widows or
22 widowers.
23 ACTING PRESIDENT KUHL: The
4967
1 Secretary will read the last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect immediately.
4 ACTING PRESIDENT KUHL: Call the
5 roll.
6 (The Secretary called the roll.)
7 THE SECRETARY: Ayes 51.
8 ACTING PRESIDENT KUHL: The bill
9 is passed.
10 THE SECRETARY: Calendar Number
11 754, by Senator Kuhl, Senate Print 1716, an act
12 to amend the General Business Law, in relation
13 to automobile auctioneers.
14 ACTING PRESIDENT KUHL: The
15 Secretary will read the last section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll.)
21 THE SECRETARY: Ayes 51.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
4968
1 THE SECRETARY: Calendar Number
2 755, by Senator Farley, Senate Print 6129, an
3 act to repeal Section 392-a of the General
4 Business Law, relating to the manufacture and
5 sale of used or secondhand hats.
6 ACTING PRESIDENT KUHL: The
7 Secretary will lay the bill aside.
8 THE SECRETARY: Calendar Number
9 756, by Senator Nozzolio, Senate Print 6589, an
10 act to amend the General Business Law, in
11 relation to unlawfully installing or maintaining
12 a video recording device.
13 ACTING PRESIDENT KUHL: The
14 Secretary will read the last section.
15 THE SECRETARY: Section 3. This
16 act shall take effect on the first day of
17 November.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll.)
21 THE SECRETARY: Ayes 52.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
4969
1 THE SECRETARY: Calendar Number
2 760, by Senator Seward, Senate Print 6140-A, an
3 act to amend the Public Services Law, in
4 relation to property transfers requiring
5 commission approval.
6 ACTING PRESIDENT KUHL: The
7 Secretary will read the last section.
8 THE SECRETARY: Section 3. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 THE SECRETARY: Ayes 53.
13 ACTING PRESIDENT KUHL: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 761, by Senator Seward, Senate Print 6143, an
17 act to amend the Public Services Law, in
18 relation to cellular telephone services.
19 SENATOR PATERSON: Lay it aside.
20 ACTING PRESIDENT KUHL: Lay the
21 bill aside.
22 THE SECRETARY: Calendar Number
23 768, by Senator Velella, Senate Print 6961, an
4970
1 act to amend the Public Authorities Law, in
2 relation to directing the Metropolitan
3 Transportation Authority to direct.
4 ACTING PRESIDENT KUHL: The
5 Secretary will read the last section.
6 THE SECRETARY: Section 3. 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
15 776, by Senator Saland, Senate Print 1434-B, an
16 act authorizing the Commissioner of General
17 Services to sell certain land to the city of
18 Beacon.
19 SENATOR PATERSON: Lay it aside.
20 ACTING PRESIDENT KUHL: There is
21 a home rule message at the desk, but the bill is
22 laid aside for the day.
23 THE SECRETARY: Calendar Number
4971
1 779, by Senator Goodman, Senate Print 6305, an
2 act to amend the Tax Law, in relation to
3 utilizing machine-sensible technologies to
4 receive, record and maintain tax.
5 ACTING PRESIDENT KUHL: The
6 Secretary will read the last section.
7 THE SECRETARY: Section 2. This
8 act shall take effect immediately.
9 ACTING PRESIDENT KUHL: Call the
10 roll.
11 (The Secretary called the roll.)
12 THE SECRETARY: Ayes 53.
13 ACTING PRESIDENT KUHL: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 780, by Senator Goodman, Senate Print 6369, an
17 act to amend the Tax Law, in relation to
18 authorizing the filing of state tax warrants.
19 ACTING PRESIDENT KUHL: The
20 Secretary will read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
4972
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
7 782, by Senator Seward, Senate Print 6538-A, an
8 act to amend the Tax Law, in relation to the
9 collection by public utility of the tax imposed
10 by Section 189 thereof.
11 ACTING PRESIDENT KUHL: The
12 Secretary will read the last section.
13 SENATOR DeFRANCISCO: Lay that
14 bill aside for the day.
15 ACTING PRESIDENT KUHL: Lay the
16 bill aside for the day.
17 THE SECRETARY: Calendar Number
18 794, by Senator LaValle, Senate Print 7231, an
19 act to amend the Education Law, in relation to
20 requiring higher education report cards.
21 SENATOR GOLD: Lay it aside.
22 ACTING PRESIDENT KUHL: Lay the
23 bill aside.
4973
1 THE SECRETARY: Calendar Number
2 795, by Senator Larkin, Senate Print 7018, an
3 act to repeal Section 2327 of the Insurance Law,
4 in relation to establishment of rates for
5 product liability insurance.
6 ACTING PRESIDENT KUHL: The
7 Secretary will read the last section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 (The Secretary called the roll.)
13 THE SECRETARY: Ayes 53.
14 ACTING PRESIDENT KUHL: The bill
15 is passed.
16 THE SECRETARY: Calendar Number
17 796, by Senator Alesi, Senate Print 7270, an act
18 to amend the Insurance Law, in relation to
19 satellite offices.
20 ACTING PRESIDENT KUHL: The
21 Secretary will read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
4974
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
8 903, by Senator Nozzolio, Senate Print 7092, an
9 act to amend the Real Property Law, in relation
10 to rules and regulations of mobile homes.
11 SENATOR NOZZOLIO: Lay it aside
12 for the day.
13 ACTING PRESIDENT KUHL: Lay the
14 bill aside for the day at the request of the
15 sponsor.
16 Senator DeFrancisco, that
17 completes the non-controversial reading.
18 SENATOR DeFRANCISCO: May we
19 please have the reading of the controversial
20 calendar.
21 ACTING PRESIDENT KUHL: The
22 Secretary -- Senator Hoffmann, why do you rise?
23 SENATOR HOFFMANN: Yesterday I
4975
1 was out of the chamber, Mr. President, when a
2 vote was taken on Calendar Number 1215. I would
3 request that the record reflect that had I been
4 in the chamber, I would have voted in the
5 negative.
6 Thank you.
7 ACTING PRESIDENT KUHL: Without
8 objection, and hearing no objection, the record
9 will reflect that had Senator Hoffmann been in
10 the chamber yesterday when Calendar Number 1215
11 was called up for a vote, that she would have
12 voted in the negative.
13 The Secretary will now read the
14 controversial calendar beginning with Calendar
15 Number 333, by Senator Volker.
16 THE SECRETARY: On page 13,
17 Calendar Number 333, by Senator Volker, Senate
18 Print 6041, an act to amend the Criminal
19 Procedure Law, in relation to the authority of
20 police officers to investigate criminal
21 activity.
22 SENATOR VOLKER: Mr. President.
23 ACTING PRESIDENT KUHL: Senator
4976
1 Volker, multiple explanations have been asked
2 for on Calendar Number 333.
3 SENATOR VOLKER: Mr. President,
4 this bill is known as the Police and Public
5 Protection Act of 1996. You know, as we were
6 out this afternoon at the police memorial
7 service, I was thinking about some of the people
8 who I have known over the years who have said
9 exactly what I think was said at that memorial
10 service, and that is that legislators and judges
11 have a lot of time to contemplate the law and
12 its ramifications and the individual -- and the
13 actions of law enforcement officers who are on
14 the scene of some incident when the law
15 enforcement officer, in many cases, has only a
16 matter of minutes or sometimes even seconds to
17 make a split second decision that may cost him
18 his life and also may determine whether, in many
19 cases, evidence that he may be seeking or trying
20 to determine is either allowed in or excluded,
21 but let me say having said that, that as
22 legislators -- and I don't have to tell anybody
23 here -- it's our duty to make decisions based on
4977
1 rational, legal terms and try to protect not
2 only the law enforcement officers but also the
3 people who those law enforcement officers are
4 dealing with.
5 This bill, the Police and Public
6 Protection Act of 1996, is a bill that was sent
7 to us as a program bill from the Governor back
8 in February, lest there be anybody that says
9 that it's been thrust upon us in the middle of
10 the night or something of that nature and no
11 one's had a chance to contemplate it. It was
12 reported out of our committee some time ago, and
13 as I assured my colleagues on the committee,
14 there would be ample time to review the bill and
15 to study it and make some determinations.
16 We're now in May, and I think
17 it's time to do that, and interestingly enough,
18 some of the things that were discussed in the
19 committee, we have hashed over and we have
20 researched ourselves. For instance, probably
21 the main argument in our committee over this
22 bill related to Section 4 of the bill that some
23 of the members of the committee felt in a sense
4978
1 was abrogating the authority of the Court of
2 Appeals as regards to the Fourth Amendment of
3 the Constitution, exclusion of evidence, and as
4 I discussed since then with some of the members
5 of the committee, we have researched that
6 ourselves and we have come up with even more
7 cases relating to this matter, and what this is
8 is the issue of good faith in exclusion of
9 evidence, suppression of evidence. I think some
10 of you may have heard it on a national level
11 where there's been a great deal of discussion
12 about the exclusionary rule.
13 What we found was that there were
14 a number of Court of Appeals cases that dealt
15 with this very issue, in other words, our own
16 Court of Appeals, that stated that it is the
17 Legislature's prerogative to make decisions on
18 issues where the -- rather than the judiciary
19 could make decisions where the intent of the
20 Constitution is clear.
21 So that everybody understands,
22 the article of the Constitution that is involved
23 here that is discussed is exactly -- it is
4979
1 identical to the federal constitutional
2 language, and there has been several cases that
3 have indicated that the Court of Appeals -- of
4 late that have indicated that the Court of
5 Appeals has decided that in certain cases that
6 the state Constitution, despite the fact that
7 its language is identical to the federal
8 Constitution, should be interpreted, shall we
9 say more conservatively or liberally, depending
10 on your position.
11 What we found is that there are
12 several Court of Appeals cases, one as late as
13 1985 that basically said that there were some
14 attempts by constitutional conventions to abro
15 gate the provision -- this constitutional pro
16 vision and, in effect, say that the state con
17 stitutional provisions should be determined to
18 be more restrictive than the federal Constitu
19 tion, and those constitutional challenges as
20 part of a constitutional convention were turned
21 down and that the Court of Appeals in several
22 decisions said it's really up to the Legislature
23 to make decisions in this area where the clear
4980
1 meaning of the Constitution has been stated.
2 Let me just start out -- and I
3 will -- because there is a great deal of
4 material involved here and just let me go
5 through it. There are three main sections to
6 this bill, and I know that many of you have gone
7 over this, and rather than go on for too long,
8 I've tried to break it down into those three
9 sections.
10 Section 2 of the bill, which is
11 the opening section, relates to encounters
12 between police and suspected criminals or
13 suspects on the street, and in all other states
14 and in the federal courts, encounters between
15 police and suspected criminals are analyzed by
16 the courts on a three-tier system, "to approach
17 and ask questions, take such other appropriate
18 actions that are not inconsistent with
19 constitutional limitations. The police are not
20 required to justify their actions on the basis
21 of facts indicating criminal conduct."
22 In New York, the Court of Appeals
23 recently has established a four-tier system.
4981
1 "Police officers must have a founded suspicion
2 that criminality is afoot before they ask more
3 pointed questions of an individual." It's been
4 difficult to determine exactly what that means.
5 This bill would say that such
6 questions when a police officer -- when a police
7 officer makes these questions, he must have an
8 objective, credible reason not necessarily
9 indicative of criminality. In effect, the bill
10 gives police officers the common law right of
11 inquiry that they have in virtually every state
12 in the Union. This is not New York embarking
13 off on its own. This is basically giving New
14 York police officers, law enforcement people
15 basically the same rights, the same authority as
16 police officers in every state in the Union.
17 Section 3 of the bill which -
18 Subdivision (3), this section would codify in
19 statute a decision handed down ironically
20 recently by the Court of Appeals on May 2nd,
21 1996 in People versus Mimms. This bill in the
22 Court of Appeals requires that a court hearing
23 on a suppression motion must make findings on
4982
1 the record that a defendant had a legitimate
2 explanation -- expectation of privacy in the
3 place or item that was searched, identify the
4 object of the defendant's expectation of privacy
5 and determine whether the circumstance would
6 lead society to regard defendant's expectation
7 as reasonable. What that is is a test that is
8 being used virtually all over the country,
9 probably is -- maybe even a stricter test is
10 being used in some parts of the country to
11 determine the legality of searches.
12 Finally, Section 4 -- which has
13 -- some have termed the most controversial -
14 this section directs that the courts follow
15 prior decisions of the Court of Appeals which
16 interpreted Section 12 of Article I of the New
17 York Constitution. The language of Article I,
18 Section 12, is exactly the same as the language
19 in the Fourth Amendment of the U.S.
20 Constitution.
21 In People versus Richters
22 Jewelers decided in 1943 and more recently,
23 People versus Johnson in 1985, Court of Appeals
4983
1 traced the history of that language in Article
2 I, Section 12, and Judge Titone in his decision
3 said "Exclusion of evidence is not a command of
4 the New York State Constitution, Article I,
5 Section 12. Rather, it is a judicially declared
6 rule of evidence which the Legislature is free
7 to abrogate."
8 This bill implements the
9 statement of Judge Titone -- or implements the
10 statement of Judge Titone and directs the courts
11 to follow the Fourth Amendment of the U.S.
12 Constitution in determining a suppression
13 motion.
14 There's a reason why I wanted to
15 read this into the record also because I want to
16 make it clear that there is no attempt here to
17 somehow be flippant with the rights of anybody.
18 There's no attempt here to go way beyond the
19 normal bounds of constitutional limits or an
20 attempt to say that the Court of Appeals
21 shouldn't have any authority to deal with sup
22 pression issues, and it shouldn't have authority
23 to deal with "stop and frisk" and things of that
4984
1 nature. There is a reasonable basis behind this
2 bill, and the reasonable basis is that what is
3 needed is a reasonable approach, not only to
4 confrontations on the street but also to
5 suppression of evidence because the times demand
6 it. The nation as a whole is in a -- is in sync
7 with this kind of legislation. I think what it
8 does is, it's designed not only to protect the
9 individuals in society, individuals who may, in
10 fact, be engaged in criminal conduct, but
11 obviously it's designed also to protect the
12 public and the law enforcement people who have
13 to enforce the statutes of this state.
14 ACTING PRESIDENT KUHL: The Chair
15 recognizes Senator Waldon.
16 SENATOR WALDON: Thank you very
17 much, Mr. President.
18 Would the chairman of our Codes
19 Committee, the learned gentleman from Niagara
20 Falls, Niagara-Buffalo area, yield to a question
21 or two?
22 SENATOR VOLKER: Certainly.
23 ACTING PRESIDENT KUHL: Senator
4985
1 Volker, do you yield?
2 SENATOR VOLKER: Certainly.
3 ACTING PRESIDENT KUHL: The
4 Senator yields.
5 SENATOR VOLKER: I don't know how
6 learned I am, but I'll yield.
7 SENATOR WALDON: What was that?
8 I'm sorry, Senator.
9 ACTING PRESIDENT KUHL: The
10 Senator yields, Senator.
11 SENATOR VOLKER: I said I didn't
12 know how learned I was, but I'll certainly
13 yield.
14 SENATOR WALDON: Well, I'll
15 assure you, Senator, I worked with you now for a
16 number of years and your reputation precedes
17 you. You are very learned.
18 Something you said in your
19 opening remarks, before I begin the line of
20 questioning that I have, if I may, I would like
21 to bring to your attention because sometimes we
22 say things that we don't mean in the passion of
23 discussions and debate on this floor. You said,
4986
1 and I quote, "Section 2 of the bill denies -
2 deals with encounters between police and
3 suspected criminals", but the bill doesn't say
4 anything about the persons who may be stopped
5 under this bill are, in fact, suspected
6 criminals. If I read it correctly, it does not
7 say that at all. Was that a faux pas?
8 SENATOR VOLKER: I don't think
9 it's a faux pas. I think that when a law
10 enforcement officer stops someone on the street,
11 there is always the possibility that that
12 person's conduct could lead to some sort of
13 criminal conduct. I think what you are saying
14 to me is -- and we're not accusing anybody
15 necessarily of a crime. What we're saying is
16 we're trying to give law enforcement officers a
17 reasonable ability to deal with the possibility
18 or the probability, in some cases, that someone
19 may have maybe then or maybe at some immediate
20 time participated in some conduct that could be
21 considered to be unlawful. It doesn't
22 necessarily mean that that person at that
23 immediate time is committing a crime, but as you
4987
1 and I are very well aware, the general law of
2 this country has said that we give within
3 reasonable bounds the ability of law enforcement
4 people to make reasonable discussions with
5 people who may -- who may be in that kind of
6 situation.
7 SENATOR WALDON: If I may
8 continue, Mr. President.
9 ACTING PRESIDENT KUHL: Senator
10 Volker, do you continue to yield?
11 (Senator Volker nods head.)
12 ACTING PRESIDENT KUHL: The
13 Senator continues to yield.
14 SENATOR WALDON: But the bill
15 says, if I am correct, Senator Volker, that the
16 bill would allow police to approach a person
17 based upon an objective, credible reason, not
18 necessarily indicative of criminality, and so I
19 just don't understand your statement, and that
20 was your statement was written down just as you
21 said it, what the bill prescribes because the
22 bill does not say that the person has to
23 evidence any outward manifestation of
4988
1 criminality.
2 SENATOR VOLKER: That's right.
3 SENATOR WALDON: Can you rectify
4 the statement of the bill and your -
5 SENATOR VOLKER: No. I think
6 what I'm saying is that they don't necessarily
7 have to evince outward manifestations of
8 criminality, but that does not mean -- I think
9 you know why I'm saying this because obviously
10 what the law enforcement officer is attempting
11 to do is to obtain some sort of information or
12 to discuss with that person something that has
13 caught the eye of the law enforcement officer.
14 That is right. It may have nothing to do with
15 criminality. On the other hand, it may also,
16 and it may have to do, in fact, with the public
17 safety of some kind. I suppose you could say
18 that that is also the charge of a police officer
19 and I would accept that, but I think that what
20 we are trying to do here is create a situation
21 where a law enforcement officer is not put in a
22 position where he or she is absolutely unable to
23 question someone for fear that anything that is
4989
1 discussed or obtained or whatever could not be
2 used in any criminal case.
3 SENATOR WALDON: Would the
4 gentleman continue to yield?
5 ACTING PRESIDENT KUHL: Senator
6 Volker, do you continue to yield?
7 (Senator Volker nods head.)
8 ACTING PRESIDENT KUHL: The
9 Senator continues to yield.
10 SENATOR WALDON: I had thought
11 about asking questions along the line that I'm
12 going to jump to, Senator Volker, much later in
13 our dialogue, but because of what just
14 transpired, I would like to go to a different
15 area right away, and that is this: Are you
16 aware of the National Institute of Justice?
17 SENATOR VOLKER: Certainly.
18 SENATOR WALDON: Are you aware of
19 a statistical report -- or a report which
20 contains certain statistics regarding arrests
21 and the ability of officers in police
22 departments across this country to make arrests
23 that occurred or which was published in 1983?
4990
1 SENATOR VOLKER: No, I don't
2 think I really am aware of it.
3 SENATOR WALDON: If I may then,
4 let me just read this to you -
5 SENATOR VOLKER: Certainly.
6 SENATOR WALDON: -- so that not
7 only you but I and our colleagues will be
8 edified.
9 The statistical phenomenon is
10 reported by a 1983 National Institute of Justice
11 study that examined policing in seven
12 jurisdictions around the United States. In each
13 of these jurisdictions, a small percentage of
14 police officers between 8 and 19 percent
15 accounted for 50 percent of the arrests
16 resulting in conviction.
17 In Manhattan, for example,
18 approximately eight percent of the police
19 officers were responsible for 50 percent of the
20 arrests resulting in conviction. The study
21 further concluded that the superior performance
22 of the high conviction officers was related to
23 more rigorous procedures and techniques for
4991
1 obtaining evidence and locating witnesses,
2 techniques and procedures that could be
3 implemented more widely with better training,
4 and let me just cut to the chase to another
5 page. This is a quote again, "To set the record
6 straight and to demythologize the war on crime,
7 one must take a hard look at some numbers.
8 First and foremost, one must recognize that of
9 all adult felony crimes that are committed in
10 this country, FBI data show that only about 20
11 percent result in arrest. This arrest rate for
12 all reported adult felonies has been consistent
13 over the last three decades, the last 30 years.
14 Moreover, of the 20 percent of felony crimes
15 that do result in arrest, the Justice Department
16 figures for 1988 reveal that in New York County,
17 more than 4 of 10, 44 percent of the adult
18 felony arrests were either dismissed by the
19 courts or subject to a decision not to prosecute
20 by district attorneys." Then it furthers states
21 -- oh, here it is -- "The Bureau of Justice
22 Statistics data show that in 1988, only two
23 percent of felony arrests in Manhattan were
4992
1 declined for prosecution as a result of due
2 process violation problems."
3 Now that I've given you this
4 information -- and I will have my office give
5 you a full copy of this report, Senator. I'm
6 sorry I couldn't do that before we got here,
7 though I would wish to share everything with
8 you, simply because I just got it myself, and so
9 I apologize for that. However, recognizing if
10 this information from the bureau and from
11 Washington is accurate, that the need to do what
12 we're doing with this Police and Public
13 Protection Act may, in fact, not exist, and I'm
14 going to ask you the question because 8 to 19
15 percent of the police are really doing the job,
16 and what we need to do is to elevate the
17 capability of all of the police officers to
18 function in that manner so that 80 percent of
19 those crimes reported will now perhaps result in
20 arrests, and we don't have to be too truly -
21 really concerned about this exclusionary piece
22 that we're going to deal with today because
23 capable police officers would make the necessary
4993
1 arrests. Do you find it possible to agree with
2 anything that I've said in here?
3 SENATOR VOLKER: Well, first of
4 all, I -
5 SENATOR WALDON: I love to listen
6 to the smile on your face. You don't know; it
7 makes my day.
8 SENATOR VOLKER: I would agree
9 with virtually everything you say on most
10 occasions. Let me just say this, Senator, and
11 you as a former law enforcement officer, as I
12 am, know full well that there is a good reason
13 why a small percentage of police officers make a
14 good many of the arrests because they are in a
15 position to do that. Most police officers -
16 most police arrests are not made by
17 happenstance. They're made by police officers
18 who are in a position -- for instance, many of
19 the sweeps that are made in the city of New York
20 are done by a small percentage of police
21 officers who are involved in squads that make
22 those arrests on the street. Certainly training
23 is a help, but one of the problems has been -
4994
1 and let me say about that study -- it was a very
2 interesting study. Of course, it was made a
3 long time ago. It was made, what, 13 years ago,
4 and the law since then in this state I think
5 unfortunately has taken a turn away from what
6 was the fact in 1983, and what we're trying to
7 do in this statute is get a law back to where,
8 in effect, I think many would say we were better
9 off in 1983, and that is in a situation where
10 suppression is not as easy as it is in this
11 state, where law enforcement people won't feel
12 that they are in a position where they can't
13 question virtually anybody on the street without
14 totally objective evidence of criminality and in
15 -- where they'll be able to feel much more
16 comfortable that they can do something which is
17 reasonable.
18 When I was a police officer, one
19 of the biggest complaints -- and that was many
20 years ago -- one of the biggest complaints was,
21 of many police officers, that they had to
22 understand too many technical things, and the
23 reason they said that was that there were many
4995
1 court cases that were throwing out arrests that
2 were made by these law enforcement officers on
3 what they called technicalities. In some cases,
4 by the way, let me say, they were valid
5 technicalities. In other cases, I think they
6 were questionable, but what I used to tell many
7 of the law -- and I went to law school while I
8 was a police officer -- I would tell them, Look,
9 you do what's reasonable. You do what's
10 reasonable under the circumstances, which is the
11 best way to deal with these kind of things. The
12 problem that many of us see who have been in the
13 street and who have represented people as well
14 as, in effect, prosecuted them is that a police
15 officer, such as in the Torres case where he
16 found the gun and the drugs, a police officer
17 did what was reasonable under the circumstances
18 and a judge said, Well, maybe it wasn't exactly
19 reasonable because the fellow really probably
20 wasn't in danger even though this guy had a gun
21 because he didn't have ready access to it. It
22 was a case that this fellow had in his
23 possession, things of that nature.
4996
1 Senator, I think what we're
2 trying to deal with in this bill -- and you can
3 give me all the statistics you want and I
4 understand that -- it may say that certain
5 police officers maybe are doing and arresting
6 and making more arrests. That doesn't mean
7 other police officers are not capable. It may
8 also mean that in our society, we need to do
9 more things of this nature that give our police
10 officers the tools and the ability to deal with
11 the criminal element so that instead of only
12 arresting and only convicting a small percentage
13 of those that commit these felonies, we're able
14 to do it on a much better basis and we're able
15 to make convictions stick.
16 SENATOR WALDON: Mr. President.
17 ACTING PRESIDENT KUHL: Senator
18 Waldon.
19 SENATOR WALDON: Will the Senator
20 continue to yield?
21 ACTING PRESIDENT KUHL: Senator
22 Volker, do you continue to yield?
23 (Senator Volker nods head.)
4997
1 ACTING PRESIDENT KUHL: The
2 Senator continues to yield.
3 SENATOR WALDON: Thank you very
4 much, Mr. President.
5 Senator, you're not saying that
6 there should be a lesser standard in regard to
7 the encounters on the street or there should be
8 a lesser standard in regard to training.
9 Historically, the police of this nation have
10 always aspired to be the best. We call New York
11 City's "the finest", and we're not saying that
12 in your response that the standards should be
13 less than or we should not properly train our
14 officers or they should not always aspire to the
15 very highest professional standard in their
16 capacity as police officers. You're not saying
17 that, are you?
18 SENATOR VOLKER: I'm absolutely
19 not saying that. I'm saying we have the best
20 trained and in most cases, the best equipped law
21 enforcement officers in the United States of
22 America in the state. I am saying that we not
23 only should continue that training but should
4998
1 make it even better, and I am not saying that we
2 should lower any standards, but I am saying that
3 the standards that we set should not be so
4 overly technical and so ambiguous that a
5 reasonable law enforcement officer couldn't
6 possibly understand them and, in effect, that
7 standard should be so strict as to be beyond any
8 state -- in certain cases, any state in the
9 Union. That doesn't really make sense, not just
10 for police officers, but for the people of New
11 York State who these police officers are
12 protecting.
13 SENATOR WALDON: Would the
14 gentleman continue to yield, Mr. President?
15 SENATOR VOLKER: Certainly.
16 ACTING PRESIDENT KUHL: The
17 Senator continues to yield.
18 SENATOR WALDON: Senator Volker,
19 it is my understanding that everything we do,
20 even in this great chamber, everything that is
21 done in this nation emanates from a sole
22 source. In the inception of this nation, we
23 wrote a great document, the Constitution, and
4999
1 that Constitution is the fundamental governing
2 document for this nation, and really all of the
3 standards that we set, all of the standards we
4 aspire to really somehow are connected to that
5 original document, which is the bedrock of the
6 United States, and early on in this nation's
7 history, there was a case, Marbury versus
8 Madison. I'm sure you recall that from your
9 days in law school. Can you tell us what that
10 case stands for?
11 SENATOR WALDON: Well, I think
12 the rights of -- okay. Is this going to -
13 SENATOR WALDON: Is Senator
14 Leichter going to pitch in for you on this?
15 SENATOR VOLKER: I think to boil
16 it down, what you're talking about is the right
17 of the states to make determinations -- and the
18 right of the federal government, but also the
19 right of states to make determinations by
20 themselves but, of course, that stat... that
21 case also, as you well know, did uphold the
22 right of the federal Constitution to oversee
23 things and, as you said and I happen to agree
5000
1 with you, that the bedrock is the Constitution
2 of the United States, but it's absolutely true
3 that we have the right as an individual state to
4 make certain decisions but in keeping with the
5 federal Constitution, and I think that's what -
6 I think that's what you're getting to, and I
7 agree with that. I don't think there's anything
8 in this bill that changes that.
9 SENATOR WALDON: If I may, Mr.
10 President.
11 ACTING PRESIDENT KUHL: Senator
12 Volker, do you continue to yield?
13 SENATOR VOLKER: Certainly.
14 ACTING PRESIDENT KUHL: The
15 Senator continues to yield.
16 SENATOR WALDON: I was really
17 listening intently for separation of powers, but
18 being that it did not emanate, I will put it on
19 the ether myself, and under the doctrine of
20 separation of powers, are there not limitations
21 on each branch of government and if you recall
22 that such is the case, which branch of
23 government is specifically mandated to interpret
5001
1 and apply the law?
2 SENATOR VOLKER: Senator, the
3 branch of government that is mandated to
4 interpret is -- in this state is the courts,
5 obviously, but let me tell you something,
6 Senator. I happen to agree with that. Remember
7 when I read my statement in the beginning about
8 the -- this bill and its relationship to the law
9 of this state, I read you various Court of
10 Appeals decisions and various decisions by the
11 courts of this state that are reflected in this
12 bill, and the reason I did that was that I
13 happen to agree -- and I probably was being a
14 little facetious in not -- I knew exactly what
15 you were talking about, the separation of
16 powers, but what we have done here is not, as I
17 think has been alleged by some people, to
18 totally abrogate the Court of Appeals. There's
19 no way we can do that. We are a separate
20 institution, but what we have done here, what
21 the Governor's bill does and what the bill that
22 I sponsor here does is to attempt to deal with
23 some decisions of the Court of Appeals that have
5002
1 made changes that this Legislature I think has
2 the right to make decisions on and that there
3 are Court of Appeals cases, the highest court in
4 this land and in this state and the Supreme
5 Court of the United States has said that we have
6 the right to make both under the federal and the
7 state Constitutions. So that separation of
8 powers or not, we are in a position where these
9 decisions can be made here logically, legally,
10 and I think rightfully to protect not only law
11 enforcement officers but obviously, more
12 importantly, to protect the people of this
13 state.
14 SENATOR WALDON: Mr. President,
15 may I continue?
16 ACTING PRESIDENT KUHL: Senator
17 Volker, do you continue to yield?
18 SENATOR VOLKER: Sure.
19 ACTING PRESIDENT KUHL: The
20 Senator continues to yield.
21 SENATOR WALDON: Senator, when
22 you spoke earlier about the Courts of Appeals
23 cases, you mentioned, I believe Torres and
5003
1 perhaps Holmes. I'm not sure. There were four
2 -- three or four cases you mentioned. I have
3 here a whole slew of "bad cop" cases, but I
4 don't think we're talking about "bad cop" cases
5 or really the three cases in terms of search and
6 seizure that you mentioned.
7 I think the issue that we're
8 really trying to address today, at least from my
9 perspective, is the separation of powers, is
10 whether or not one branch of government will
11 dictate the rhythm of other branches of
12 government.
13 Recently as I read in the press,
14 the Governor criticized Judge Duckman. He
15 removed District Attorney Robert Johnson, and
16 he's done some other things in regard to the
17 Executive Branch, in my opinion, intruding into
18 the work of other areas of government,
19 specifically precluded by the separation of
20 powers mandate, and I was just wondering if you
21 have an opinion in regard to that. Could -- and
22 I respectfully will accept whatever your answer
23 is. I'm not here to put you on the spot other
5004
1 than for us to discourse, but could the
2 Governor's recent actions regarding Judge
3 Duckman, regarding D.A. Johnson be characterized
4 as intimidation, as violative of the separation
5 of powers? That's the real question.
6 SENATOR VOLKER: Let me just say,
7 I think we may be getting a little bit far
8 afield from the bill, but let me say this: I
9 think what the Governor was saying in the
10 Duckman, as well as the Johnson case was that -
11 was not the issue of whether they had the power
12 or the authority. That's clear. The issue of
13 the separation of powers is very clear. The
14 reason I mentioned the cases and the
15 jurisdiction when we started was to show that we
16 are not abrogating the authority of the Court of
17 Appeals to make decisions but as a Legislature,
18 we have not only the authority but the right to
19 set policy and to make decisions based on the
20 Constitution of this state and the Governor, by
21 the way, has a responsibility as the chief
22 executive officer to express himself where he
23 believes that not the judges are making bad
5005
1 decisions necessarily, but whether they're not
2 necessarily following the law or following their
3 oath as an elected or appointed official.
4 I think the thing that bothered
5 the Governor in the Johnson case was not the
6 question of whether the district attorney in
7 that case decided whether the death penalty or
8 the life without parole or whatever should be -
9 was the statement by the district attorney that
10 he didn't believe that he should ever have the
11 death penalty or should ever use it, and the
12 question that the Governor I think expressed was
13 the issue of whether that person was violating,
14 in effect, the law, that is was not following
15 the law, and I think in the Duckman case -- and
16 as you know, ultimately he referred it to the
17 Commission on Judicial Conduct -- I think he was
18 concerned that the Commission on Judicial
19 Conduct might not follow through with its
20 responsibilities, and I think that's where I
21 think the Governor interjected.
22 It seems to me -- and I am very,
23 very reluctant as a legislator, as I know
5006
1 Senator Lack is as chairman of Judiciary, to get
2 involved in these kind of issues, except for one
3 thing. As I told a friend of mine from the City
4 who is with the New York City Bar, unfortunately
5 for us, we are the ones who are elected by the
6 people of the state of New York -- fortunately,
7 not unfortunately, but it is our responsibility
8 if someone we believe is not following their
9 responsibilities, not necessarily whether
10 they're right or wrong in their decisions, but
11 if they're not following their responsibilities,
12 it seems as if it's our responsibility to try to
13 make sure that those individuals do follow the
14 responsibilities.
15 In this bill, I think what we are
16 doing is attempting to speak out as -- for the
17 people of the state of New York that we think
18 that some decisions may not have been appropri
19 ate and that under our power as a Legislature,
20 that we can make these decisions and should make
21 these decisions. We're not abrogating the power
22 of the Court of Appeals. We are directing the
23 law in a way that I think is in the best
5007
1 interests of the people of this state, and I
2 think we have not only the right to do it, but I
3 think we have the responsibility.
4 SENATOR WALDON: Mr. President,
5 if I may continue.
6 ACTING PRESIDENT KUHL: Senator
7 Volker, do you continue to yield?
8 SENATOR VOLKER: Certainly.
9 ACTING PRESIDENT KUHL: The
10 Senator continues to yield.
11 SENATOR WALDON: Senator, I think
12 I heard a message to the Court of Appeals in
13 what you just said. I don't know if that's
14 appropriate behavior by those of us who sit in
15 this legislative chamber, but let me share a
16 quote with you that I think speaks to the
17 essence of Al Waldon's perception of the court.
18 This is a quote from the great Justice Felix
19 Frankfurter, and it says his words.
20 "The Supreme Court's authority
21 to possess neither the purse nor the sword
22 ultimately rests on sustained public confidence
23 in its moral sanction. Such feeling must be
5008
1 nourished by the court's complete detachment in
2 fact and appearance from political entanglements
3 and by abstention from injecting itself into the
4 clash of political forces and political
5 settlements."
6 If I may, Senator Volker, if I
7 extend that credo, the statement by Justice
8 Frankfurter to our Court of Appeals, could we
9 not characterize the Governor's action and, in
10 fact, our action if this one-house bill were to
11 become the law of the state of New York as
12 violating what Justice Frankfurter said in these
13 very significant words?
14 SENATOR VOLKER: Senator, first
15 of all, let me maybe start out just by answering
16 the question directly. I have immense respect,
17 obviously, for Justice Cardozo. I happen to
18 agree entirely -
19 SENATOR WALDON: Justice
20 Frankfurter.
21 SENATOR VOLKER: Or Justice
22 Frankfurter. Cardozo is another one. I know.
23 I'm aware. I happen to agree with that
5009
1 assessment. I do not believe that's what we are
2 doing here in any way, shape, form or manner.
3 However, let me follow up by saying that
4 "political" is an interesting word. I don't
5 think the Governor was challenging the right of
6 judges to make decisions or the kind of
7 decisions they made. What the Governor was
8 challenging was -- in one case with a district
9 attorney and in another case with a judge was
10 the issue of the propriety of how those
11 decisions were arrived at and whether the person
12 -- the individual followed the procedures that
13 were mandated under the law and correctly
14 applied those procedures.
15 I do not believe -- and by the
16 way, you'd best be careful of the one-house bill
17 nature of this. It's very possible, I think,
18 that a facsimile of this bill may still have a
19 chance in the Assembly. I don't -- I'm not
20 convinced this is necessarily a one-house bill
21 because I think that the impetus of this
22 proposal is much stronger than I think maybe
23 both of us realize, but I do believe that this
5010
1 bill is not by any means a challenge to the
2 Court of Appeals but maybe a challenge to us all
3 to look at the state of the law in this state
4 and make decisions not based on some sort of
5 technical interpretation of the world out there
6 but on the real world of protections, not just
7 for police officers obviously, but for the
8 individuals involved, but looking at what the
9 Court of Appeals itself has said about itself
10 and about the Legislature, not overriding or
11 overruling the direction of the Court of Appeals
12 except where it may have moved in a direction
13 that is in violation or in abrogation of what
14 the clear meaning of the Legislature was.
15 We passed a statute here last
16 year -- I think it was last year. I'm pretty
17 sure it was last year, Senator -- that changed
18 the -- changed -- in effect, changed the court
19 decision on drug possession, and the reason was
20 that it was the interpretation of this
21 Legislature and the Governor that a court
22 decision was not in keeping with what -- the
23 clear meaning of a legislative statute, which
5011
1 was passed in this Legislature years back in
2 both houses and signed by the then governor,
3 that a decision by the Court of Appeals was not
4 in keeping with the clear meaning of that
5 statute and we rewrote the statute, in effect,
6 and said, Here's what the meaning is, and the
7 Governor -- I believe you voted for that bill as
8 I did. The Governor signed that bill and, to my
9 knowledge, the Court of Appeals has made no
10 attempt to challenge that interpretation because
11 upon our passing a second statute that basically
12 said, Here's what we meant in the first place
13 and your interpretation of it was not what the
14 clear meaning of the statute was, I think we
15 have every right to do that, and I think the
16 Court of Appeals has acknowledged our right to
17 do that. So I don't think we're doing anything
18 that abrogates the Court of Appeals' authority.
19 SENATOR WALDON: Mr. President,
20 would the gentleman continue to yield?
21 ACTING PRESIDENT KUHL: Senator
22 Volker, do you continue to yield?
23 SENATOR VOLKER: Sure.
5012
1 ACTING PRESIDENT KUHL: The
2 Senator continues to yield.
3 SENATOR WALDON: Senator, thank
4 you very much for your -- okay. Can we go now?
5 SENATOR VOLKER: Go ahead. I'm
6 sorry.
7 SENATOR WALDON: Was that Ryan?
8 SENATOR VOLKER: Ryan. You have
9 a much better memory than I do. People versus
10 Ryan.
11 SENATOR WALDON: Senator, I just
12 wanted to cover a couple of points in the bill,
13 some of which we've discussed outside of the
14 chamber, and I've recently obtained some
15 information, but one I was not able to obtain
16 information on. Do you know of any definition
17 for "bad faith"? I did not find one.
18 SENATOR VOLKER: "Bad faith", I
19 think -
20 SENATOR WALDON: As depicted in
21 the bill.
22 SENATOR VOLKER: No. I don't
23 think the bad faith -- by the way, the "bad
5013
1 faith" word is used, I believe by the Supreme
2 Court and is in federal statutes. I don't think
3 there is any actual definition. I think it's
4 another one of those words of art or phrases of
5 art that have been used in the law and that have
6 not been specifically identified. My counsel
7 says the totality of the circumstances
8 determines good and bad faith, and I don't have
9 a specific definition, yes.
10 SENATOR WALDON: Senator, the
11 proposed bill speaks to an officer in a public
12 place, and I since looked up because we had a
13 conversation about could someone come into your
14 home, and under 240 of the CPL, the lobby and
15 stairwell of New York City Housing Authority
16 projects are considered public places;
17 therefore, it seems to me that the police could
18 go into the lobby, and in the projects -- I
19 lived in one -- there are apartments on the
20 first floor right off of the lobby. You step
21 into the lobby, there's an apartment right here
22 in some of them, an apartment right there to
23 your right. So those are public places and
5014
1 under this bill, the police could then make an
2 intrusion into the person's home as I understand
3 it.
4 SENATOR VOLKER: No, Senator.
5 SENATOR WALDON: If I may
6 continue, Mr. President.
7 SENATOR VOLKER: If I might
8 follow up on that. I disagree, and the reason
9 is because the issue of the dwelling is -- is a
10 very clearly defined piece of the law. The fact
11 that you could enter into -- and that's true,
12 and I think that's by statute that we declared
13 lobbies of buildings -- of public buildings or
14 apartment buildings to be public places, and
15 specifically we did that, I believe because of
16 potential problems involving intoxicated persons
17 and disorderly persons, and so forth, if my
18 recollection is correct -- dating way back years
19 ago, if my recollection is correct, but that
20 would have no meaning, as far as the actual
21 dwelling places because there is no place that
22 I'm aware of any place in the law that would say
23 a dwelling, whether it's adjacent to a foyer or
5015
1 whatever it is, could ever be declared to be a
2 public place. Dwellings are specifically
3 excluded from the public place provisions, and
4 in that statute, by the way -- and I vaguely
5 remember passing it many years ago -- we were
6 pretty specific as to what would be considered a
7 public place for that very reason, so that no
8 one could interpret that statute to mean you
9 could walk into somebody's house, arrest them
10 for public intoxication or disorderly conduct or
11 whatever based on the fact that their own
12 dwelling was a public place.
13 SENATOR WALDON: Mr. President,
14 may I continue? Would the gentleman continue
15 to -
16 ACTING PRESIDENT KUHL: Senator
17 Volker, do you continue to yield?
18 (Senator Volker nods head.)
19 ACTING PRESIDENT KUHL: The
20 Senator continues to yield.
21 SENATOR WALDON: Thank you, Mr.
22 President. Thank you, Senator Volker.
23 Senator, I wish I had your
5016
1 confidence that some zealous police officer -
2 over-zealous police officer might not -- if not
3 properly trained, as I suggested moments ago,
4 ten, fifteen moments ago in our dialogue, that
5 the bottom line is this should not be the 1996
6 Police and Public Protection Act that we're
7 dealing with. We should be dealing with the
8 1996 Police Training Act to bring everyone up to
9 the standard where their behavior would be such
10 that even those who are in the squad would have
11 to be a little anxious because the guys in the
12 street would be making as many arrests as they
13 were, those who are assigned to just fundament
14 ally make arrests. I think that would be of
15 great assistance to us.
16 I don't think that there will be
17 no exceptions to the interpretation that the
18 lobby is not a place that will allow them to
19 invade someone's dwelling even though the law
20 may be very clear about that, but what I really
21 want to do now is ask a couple of questions, if
22 I may, which I'm sure you know the answers to,
23 but I want to set -- I want to accomplish
5017
1 something here, if you will permit me to follow
2 this train of thought.
3 How many people are in New York
4 State's prisons?
5 SENATOR VOLKER: Excuse me. In
6 New York State prison?
7 SENATOR WALDON: Yes.
8 SENATOR VOLKER: About 70,000, a
9 little bit under 70,000, in the state itself,
10 prisons, just about 69-, about 70-.
11 SENATOR WALDON: Mr. President,
12 may I continue?
13 ACTING PRESIDENT KUHL: Senator
14 Volker, do you continue to yield?
15 SENATOR VOLKER: Sure.
16 ACTING PRESIDENT KUHL: The
17 Senator continues to yield.
18 SENATOR WALDON: Senator Volker,
19 how many are in our local jails?
20 SENATOR VOLKER: Oh, I am really
21 not sure. I believe almost as many, if I'm
22 not -
23 SENATOR WALDON: Would 90,000
5018
1 sound like -
2 SENATOR VOLKER: You mean in the
3 local jails? I would think it's at least -
4 SENATOR WALDON: It is about
5 90,000, Senator.
6 SENATOR VOLKER: George tells me
7 it's 89,786. He just counted them.
8 SENATOR WALDON: You know, George
9 knows -
10 SENATOR VOLKER: Right. I think
11 it's somewhere between 70- and 90-.
12 SENATOR WALDON: -- about numbers
13 and things. He really knows.
14 SENATOR VOLKER: Absolutely.
15 SENATOR WALDON: Can you tell us,
16 if you know, Senator Volker, the racial makeup
17 of New York State's prison population?
18 SENATOR VOLKER: I believe the -
19 the last that I saw -- and I -- my recollection
20 is it was about 60 percent. I think my last
21 recollection, it was somewhere around 60 percent
22 to 65 percent minority, if I'm not mistaken.
23 Maybe even a little bit higher. You're talking
5019
1 about New York State as a state?
2 SENATOR WALDON: The state's
3 prison population.
4 SENATOR VOLKER: I think it was
5 -- it seems to me it was 60-. I'm not sure. I
6 really haven't looked at it lately.
7 SENATOR WALDON: I'm not
8 absolutely sure myself, Senator, but I think
9 that blacks occupy 12 percent of the state's
10 population, Hispanics, 11 percent, 11.3 percent,
11 and blacks are 50 to 55 percent of the state's
12 prison population and the Latino community has
13 33 percent of that number which would put us
14 somewhere around 88 percent -- 85 to 88
15 percent. That may or may not be accurate, but
16 if I may, Mr. President -- if I may continue.
17 SENATOR VOLKER: Sure.
18 ACTING PRESIDENT KUHL: Senator
19 Volker, do you continue to yield?
20 SENATOR VOLKER: Certainly.
21 ACTING PRESIDENT KUHL: The
22 Senator yields.
23 SENATOR WALDON: Are you aware of
5020
1 the recent report by Mr. Schectman from CJS in
2 regard to racial disparities?
3 SENATOR VOLKER: If you mean the
4 report -- one of the reports that was put out
5 recently that was one of the few reports that we
6 have seen that indicates any kind of racial
7 disparity -- and that was in the paper. It was
8 distributed to a whole bunch of people back in
9 October, and the media characterized it as a
10 secret report even though it was distributed to
11 about 350 or 360 people and did show some
12 indication of possible racial disparity -- and
13 by the way, that's the first one that DCJS has
14 done. DCJS didn't do it. The person who did it
15 did show some variables in racial disparity, but
16 I have to tell you, we checked it out and since
17 you bring it up, there were some real questions
18 about the criteria that was used in that report,
19 but it was a report that was authorized
20 initially by the Cuomo administration and did
21 show some potential disparity, but as is usual
22 in those cases and being from the death penalty
23 era, I can tell you that fluctuations of reports
5021
1 are pretty easy in this area, but it was a
2 legitimate report that showed some disparity,
3 not a lot, but some disparity in the criminal
4 justice area.
5 SENATOR WALDON: Mr. President,
6 may I continue?
7 ACTING PRESIDENT KUHL: Senator
8 Volker, do you continue to yield?
9 SENATOR VOLKER: Sure.
10 ACTING PRESIDENT KUHL: The
11 Senator continues to yield.
12 SENATOR WALDON: Senator Volker,
13 if I ever go to a ball, I want to take you
14 because you really know how to dance. I want
15 you to know that.
16 What effect, Senator, do you
17 think this Police and Public -- let me rephrase
18 that. Are you able to predict the impact, if
19 implemented into law, the Police and Public
20 Protection Act of 1996 will have on the prison
21 population of New York State?
22 SENATOR VOLKER: On the prison
23 population, you know, Senator, I would be very
5022
1 honest with you, and I'm not trying to be coy by
2 any means. I don't think this bill will have
3 any -- certainly any immediate appreciable
4 effect just as -- by the way, the statute that
5 we passed last year, sentencing statute has very
6 little immediate effect because the main effect
7 of that statute comes in about three years down
8 the line. If this -- remember, someone arrested
9 today, particularly in New York City, would take
10 a year to two or maybe two years before the
11 actual impact on the prison system of the state
12 of New York is immediately forthcoming.
13 I personally think that what will
14 happen here is that assuming that this statute
15 is enacted into law, I think that we will see
16 some people who now may be able to evade even
17 prosecution but more so conviction. Some people
18 will probably go to jail. We would hope that
19 what it would mean is that some criminal conduct
20 will also be deterred which seems to be
21 something, by the way, that many people forget
22 about, and that is that when you are able to get
23 swifter and more certain punishment and when you
5023
1 are able to deal with criminal activity in a
2 more forthright manner, that it does tend to
3 discourage criminal activity in some cases and
4 that, although we may get more people put in
5 jail as an overall amount, we may well, in fact,
6 see fewer people entering into the criminal
7 justice system.
8 One of the interesting things as
9 you know that's happening, Senator, is we're
10 getting in many cases as many parole violators
11 now as we are new inmates into our system and -
12 because of the drop in the number of arrests
13 over the last few years and the drop in
14 convictions, but I would be the first to say to
15 you that hopefully better law enforcement will,
16 although it may mean some additional people in
17 our prison system, hopefully it will mean a
18 better respect for the law and will help some of
19 the public in deterring crime and meaning less
20 crime in our streets.
21 SENATOR WALDON: Thank you very
22 much, Senator.
23 Mr. President, if I may now, on
5024
1 the bill.
2 ACTING PRESIDENT KUHL: Senator
3 Waldon, on the bill.
4 SENATOR WALDON: Mr. President,
5 my colleagues, I think what we're doing here
6 today with this proposal is an attempt to
7 circumvent the basic fabric and undergirding of
8 this nation, our Constitution and its
9 guarantees.
10 I think that this article that
11 I'm going to read from momentarily which has
12 words of the great Senator from Delaware, Joe
13 Biden, are very poignant in regard to the
14 attempt to usurp the powers of the court. This
15 is an end run around the court and an end run
16 around the process which amends the Constitution
17 of not only the United States but this state.
18 In regard to interfering and
19 intruding into the judiciary, Senator Biden said
20 and I quote, "All judges, including
21 conservatives rail against government when it
22 violates the Constitution. Many judges,
23 Republicans and Democratic, sometimes decide
5025
1 cases in favor of criminal defendants. This
2 includes judges recommended by Dole." He was
3 talking about the federal Judiciary. "For
4 example, Dole recommended Deanell" -- I want to
5 pronounce this name correctly -- "Reece Tacha",
6 T-a-c-h-a -- "to former President Ronald Reagan
7 for the 10th Circuit. In 1994, Tacha wrote an
8 opinion suppressing "crack" cocaine discovered
9 during a traffic stop after the officer
10 initially and incorrectly thought the
11 defendant's motor vehicle registration was
12 invalid." The Senator then says, "This does not
13 mean that Tacha is soft on crime."
14 My opposition to this bill does
15 not mean that Al Waldon is soft on crime. Those
16 in the Democratic Conference and those in the
17 Republican Conference who will vote against this
18 bill does not mean that we are soft on crime.
19 Senator Biden continues by saying, "It is a
20 judge's job to keep the government from
21 violating a citizen's constitutional rights even
22 when this means giving a criminal a new trial."
23 My colleagues, we are first and
5026
1 foremost a nation of laws. Our political system
2 was founded upon a body of fundamental laws, the
3 Constitution. That Constitution was set up and
4 sets us apart from the despotic regimes of
5 Europe over 200 years ago. It was unique. It
6 ensured that the people were not ruled through
7 fiat and capriciousness. The guarantees of the
8 Constitution are still what set us apart from
9 the modern dictatorship, from authoritarian
10 regimes, from totalitarianism and from so-called
11 banana republics. Why do so many people want to
12 come here to America? Because our system is
13 still, 220 years later, the beacon to which all
14 nations aspire.
15 The police in this nation cannot
16 -- cannot, must not, legally act arbitrarily.
17 They are a disciplined, dedicated group of
18 professionals, proud of their professionalism
19 and their service to the public as was I when I
20 served as a police officer. I protest this
21 undermining of the most fundamental document in
22 the history of this nation, our Constitution. I
23 protest this canard that the police have their
5027
1 hands tied under current law and court precedent
2 and that justice is not prevailing in our courts
3 but, most of all, I protest that we are here
4 today practicing obfuscation 101. We are
5 saying, Watch my hands. Hear my shibboleths.
6 Read my lips but don't ask us, this Legislature,
7 this Governor, where's the budget? Steve
8 "Bantu" Biko said the most -- and I quote, "The
9 most potent weapon in the hands of the oppressor
10 is the mind of the oppressed", and so I refuse
11 to surrender my mind even to people as clever as
12 those here. I refuse to surrender the will and
13 the needs of the 300,000 in the 10th Senatorial
14 District. I refuse to believe that political
15 expediency is the right way, that wrong because
16 some one person wants to make it so is now
17 right. I refuse to surrender the lives and
18 spirit and futures of countless black and
19 Hispanic young men.
20 The Police and Public Protection
21 Act of 1996 will not protect the public. It
22 will explode our prison population, drain our
23 resources, make all of us more fearful and
5028
1 insecure by reducing the constitutional
2 protection and protections which have made this
3 nation so great. When you couple this act with
4 the Governor's desire to build 8,800 prison
5 cells, the only growth phase of his budget, when
6 you couple this with Schectman's report, the
7 possibility of prison yards, as dreams deferred
8 of blacks and Hispanics become abundantly real
9 and abundantly more possible, I yield not my
10 mind. I do not fail to protest. I have
11 confidence in the moral sanction of the court.
12 I thank you, my colleagues.
13 ACTING PRESIDENT KUHL: Chair
14 recognizes Senator Abate.
15 SENATOR ABATE: Thank you. Would
16 Senator Volker yield to one question?
17 ACTING PRESIDENT KUHL: Senator
18 Volker yield to Senator Abate?
19 SENATOR VOLKER: Yes.
20 ACTING PRESIDENT KUHL: Senator
21 yields.
22 SENATOR ABATE: Senator, if I can
23 preface my question. I enjoyed your rendition
5029
1 of a number of Court of Appeals cases. I know
2 that you are now going to have the ability if
3 you ever leave this Legislature to teach
4 Criminal Procedure Law or jurisprudence, but I
5 did enjoy your knowledge of criminal law and
6 procedure.
7 My first question, Senator
8 Volker, if the reason behind the exclusionary
9 rule, whether it be the state exclusionary rule
10 or the federal, is to strike a balance between
11 the ability of law enforcement to carry out its
12 function and balancing that right with the obli
13 gation to protect the public from unreasonable
14 intrusions, unreasonable searches and seizures,
15 clearly the intent of this legislation is your
16 concern to correct this balance, but don't you
17 think as a result of this legislation there will
18 be more unwarranted intrusions?
19 SENATOR VOLKER: If I did think
20 that, I wouldn't be sponsoring this legislation,
21 Senator. Let me just say, remember what I
22 stated before and that is that, by doing this
23 bill, we are, in effect, getting New York law
5030
1 back in sync with the rest of the country.
2 In other words, what we are
3 saying here is that we are -- that the New York
4 statute has gone -- or the New York -- the cases
5 that this statute aims at were cases that put
6 the New York situation at a higher standard than
7 not only the federal Constitution but by far the
8 rest of the country. Now, unless the assumption
9 is that the rest of the country is completely
10 unfair and that the Constitution of the United
11 States doesn't adequately protect individuals,
12 then I think you would have to assume that we
13 have gone beyond what the rest of the country
14 believes is proper conduct.
15 What we're saying in this bill is
16 not that we're going to allow improper conduct
17 but that we are going to allow reasonable
18 conduct, and reasonable, it seems to me, is
19 something that we have to deal with. No one is
20 saying that illegally obtained evidence, where
21 there is a showing of lack of reasonableness -
22 the Court of Appeals clearly can throw those
23 cases out, this legislation or not depending on
5031
1 the situation, as they can under the federal
2 Constitution, by the way.
3 I think what we should really all
4 understand here is that there is no absolute bar
5 for making reasonable determinations. What we
6 are saying here in this statute, that we think
7 that certain decisions in certain cases may have
8 gone too far and that we are making sure that
9 our Constitution is upheld as well as the
10 federal Constitution at the same time that the
11 people of this state are protected and that the
12 law enforcement people who enforce the law are
13 protected.
14 SENATOR ABATE: Would Senator
15 Volker yield to another question?
16 SENATOR VOLKER: Sure.
17 ACTING PRESIDENT KUHL: Senator
18 Volker, do you continue to yield?
19 SENATOR VOLKER: M-m h-m-m.
20 ACTING PRESIDENT KUHL: Senator
21 continues to yield.
22 SENATOR ABATE: My concern is
23 that you use the language "reasonable," and yet
5032
1 there is no definition in the legislation to
2 define what is "bad faith". Bad faith in whose
3 eyes? If the officer feels subjectively they've
4 acted not in bad faith, what does that mean?
5 SENATOR VOLKER: Well, first of
6 all -
7 SENATOR ABATE: How do you define
8 "bad faith" in this legislation?
9 SENATOR VOLKER: How would you
10 define "good faith"? I mean, the point is good
11 faith is the reverse of bad faith, and that's
12 not a determination to be made necessarily by a
13 police officer. In the long haul, that's going
14 to be made by a court.
15 We ask a law enforcement officer
16 to act reasonably. If his or her mistake is
17 considered to be one that was deliberately done
18 and not done in a proper manner, certainly that
19 would be -- I think would be considered bad
20 faith. In fact, I suppose if we define bad
21 faith in the statute that means as long as the
22 person didn't deliberately mean to harass -- or
23 put some language in -- I think that would be a
5033
1 better argument, frankly, that we were intruding
2 on the separation of powers.
3 Remember, if we were to very
4 strictly define what "bad faith" meant -- and
5 that might be difficult to do since no one has
6 tried to do that, but, if we did, we would be
7 restricting and tying the very hands of the
8 court that we're talking about giving authority
9 to deal with it.
10 SENATOR ABATE: Because of the
11 vagueness of the language and in terms of how
12 one will interpret bad faith, it will give very
13 little guidance to the police department as to
14 what their appropriate actions should be.
15 How can the police department
16 now, given this what I call vagueness, know what
17 is appropriate and allowable and what is not?
18 Basically, it can only be decided by the
19 individual officer acting on what they may or
20 may not perceive to be reasonable at the time.
21 So I'm concerned about what
22 guidance are we giving to the police department
23 with a bad faith exception?
5034
1 SENATOR VOLKER: Senator, I think
2 the guidance we're giving them is to -- the
3 judge is going to have to look at the totality
4 of the evidence, and what we're saying here is
5 that we have a -- and, by the way, this is not
6 something -- the bad faith interpretation is not
7 something that we pulled or was pulled whole
8 cloth and just used here. It is being used on
9 the federal level also, as you know. It was
10 quoted in the Supreme Court of the United
11 States.
12 SENATOR ABATE: Well, no, that
13 was more restrictive than the Supreme Court
14 because the Supreme Court talks about a good
15 faith exception that applies to search warrant
16 cases. It seems to me that we're going beyond
17 even the federal standards in this legislation.
18 SENATOR VOLKER: No, I don't
19 think we are, Senator. I think we are pretty
20 well right with the federal standard with this
21 legislation. I think if you look at the
22 totality of what's being done nationwide and in
23 the federal courts as well as the -- well, in
5035
1 Congress, I don't think we're going beyond
2 here. In fact, probably we're not going as far
3 as some states have done and as far as some
4 parts of the federal courts have moved.
5 I think that it is pretty clear
6 what the meaning of this statute is, and a court
7 will interpret it based not necessarily on what
8 the law enforcement officer thought but based on
9 the totality of the circumstances and whether
10 that evidence should be allowed in or not.
11 SENATOR ABATE: Will the Senator
12 yield to another question?
13 SENATOR VOLKER: Sure.
14 SENATOR ABATE: Why then did you
15 chose the language of "bad faith" when the
16 federal Supreme Court has used the words of
17 "good faith" exception? Obviously, there is a
18 difference in terminology. If you are trying to
19 make our state interpretation consistent with
20 the federal interpretation, why do you use
21 different terminology?
22 SENATOR VOLKER: I think that the
23 good faith/bad faith determination, I think, is
5036
1 the federal terminology and is the state
2 terminology. Maybe you juxtapose it, but I
3 think the issue of what constitutes good faith
4 and what constitutes bad faith is an issue that
5 has to be determined. To a law enforcement
6 officer, whether you say you must exercise good
7 faith or you shouldn't exercise bad faith, I
8 don't see where that's going to make any
9 difference in the long run, and I think the
10 direction of the court in interpreting the
11 statute is clear under either case.
12 SENATOR ABATE: Will the Senator
13 yield to another question?
14 ACTING PRESIDENT KUHL: Senator
15 Volker, do you yield to another question?
16 SENATOR VOLKER: Sure.
17 ACTING PRESIDENT KUHL: Senator
18 yields.
19 SENATOR ABATE: It is my
20 understanding that the Court of Appeals will not
21 be in a position to suppress evidence unless
22 after a hearing it is found that bad faith was
23 committed on the part of the police officer.
5037
1 Who carries the burden? Does the
2 defendant who has little knowledge of what's in
3 the mind of the police officer have to prove
4 that that officer acted unreasonably in bad
5 faith? I mean isn't this an impossible burden
6 due to over -
7 ACTING PRESIDENT KUHL: Senator
8 Abate, excuse the interruption just a minute.
9 Senator Holland, why do you
10 rise?
11 SENATOR HOLLAND: Could we have
12 the last section read so a member can vote on
13 this bill, please.
14 ACTING PRESIDENT KUHL: The
15 Secretary will read the last section.
16 THE SECRETARY: Section 5. This
17 act shall take effect immediately.
18 ACTING PRESIDENT KUHL: Call the
19 roll.
20 (The Secretary called the roll.)
21 ACTING PRESIDENT KUHL: Senator
22 Nanula, how do you vote?
23 SENATOR NANULA: No.
5038
1 ACTING PRESIDENT KUHL: Senator
2 Nanula will be recorded in the negative.
3 The roll call is withdrawn.
4 Thank you, Senator Volker and
5 Senator Abate, for allowing the interruption.
6 Senator Abate.
7 SENATOR ABATE: Who carries -- to
8 rephrase it, who carries the burden of proof and
9 how can the defendant possibly prove what's in
10 the mind of that officer?
11 SENATOR VOLKER: I don't think
12 it's the mind of the officer. I think it's the
13 totality of the evidence. If you look at these
14 kinds of cases and if you look at the
15 interpretations, there are far more than the
16 issue of what is in the mind of the law
17 enforcement officer. The Torres case, for
18 instance, there was a mountain of circumstantial
19 evidence brought in on the very issue of the
20 evidence that was obtained which is the normal
21 -- is the normal case, and I would think that
22 that would be the case under any circumstances
23 and that the -- what would have to happen is
5039
1 that the prosecution would bear the burden of
2 proving that there was no bad faith by the law
3 enforcement officers. Because, remember, there
4 has already been a determination that -- well,
5 presumably a determination that this evidence is
6 illegal; because if it's not directly illegal
7 evidence, then it has to be directly entered.
8 So once that is done, then the prosecution has
9 to move and show that there is no bad faith.
10 SENATOR ABATE: That was helpful,
11 Senator. So it is your understanding of this
12 legislation, since this is your legislation,
13 that the burden of proof would be on the
14 prosecution to come forward to show that the
15 stop was made in good faith?
16 SENATOR VOLKER: Yes, I think so.
17 SENATOR ABATE: The reason that
18 I'm concerned about -- of this whether it's
19 coming forward by the prosecution and the burden
20 shifting to the defendant, I read this
21 legislation that there has to be no indication
22 of criminality. The officer can stop someone,
23 just so it's not in bad faith, for any reason or
5040
1 no reason at all. So it's very broad what the
2 authority of the officer is in terms of
3 stopping, and that is my concern. How do we
4 accomplish the dual mission of balancing law
5 enforcement efforts and protecting citizens
6 at-large?
7 SENATOR VOLKER: First of all,
8 let's -- there are two pieces. You have moved,
9 then, from the issue of illegally excludes
10 evidence to the issue of stopping.
11 The bill would allow question
12 when the police officer has objective, credible
13 reason not necessarily indicative of
14 criminality. So I think we are, in a sense,
15 dealing with two different pieces of the bill.
16 The issue of exclusion of
17 evidence, although it obviously could hinge on,
18 in certain cases, the stopping, that is a bit of
19 a different issue, and depending on what the
20 police officer finds in his questioning would
21 then determine how he would move on, and there
22 still could be an illegal seizing of evidence
23 despite the fact that maybe the police officer
5041
1 under the rules was able to stop that person,
2 but there would still be an issue as to whether
3 the evidence was either seized or obtained
4 legally.
5 For instance, the issue, as I
6 think in some of these cases is, when you find
7 that someone may have committed some criminal
8 conduct and you go to his house and you enter
9 his house, the question is, "Did he actually
10 agree to allow you to do that?" He wasn't under
11 arrest. You can't just walk into someone's
12 house. He can say, "The guy let me in," but if
13 the guy says, "Well, I didn't really let him
14 in," anything found in that house couldn't be
15 used as evidence under this bill or under the
16 statute as it is right now.
17 SENATOR ABATE: Except I read the
18 language -- and please correct me -- that the
19 Court can not get involved in suppressing this
20 evidence if two conditions have to be apparent;
21 one, that the officer acted in bad faith and,
22 secondly -- I read not and/or -- "and not in
23 whole or in part for the purpose of protecting
5042
1 the safety or an act of another person."
2 Anyone who is a law enforcement
3 officer in uniform or conceivably in undercover
4 work, their whole function is to protect the
5 public. So even if they act in bad faith and
6 it's consistent with their law enforcement
7 functions, it seems as though the prosecutor has
8 met their burden, because it talks about bad
9 faith and not in whole or in part.
10 SENATOR VOLKER: No, I think that
11 it's pretty clear what the clear meaning is, and
12 I still think you have to look at the totality
13 of the incident to make a determination whether
14 the evidence would be included, and I don't
15 think that this language is unreasonable.
16 I think it basically is what
17 generally is not only the law or has been
18 previously considered to be the law of New York
19 but also has been considered to be the law of
20 the land, and I don't think, really, we're
21 reaching much farther than what is generally
22 considered to be the law now in most
23 jurisdictions.
5043
1 SENATOR ABATE: I disagree,
2 Senator.
3 ACTING PRESIDENT KUHL: Senator
4 Volker, do you continue to yield?
5 Are you asking the Senator a
6 question?
7 SENATOR ABATE: Yes, please.
8 ACTING PRESIDENT KUHL: Senator
9 Volker, do you continue to yield?
10 Senator continues to yield.
11 SENATOR ABATE: Senator, I don't
12 understand. If, in fact, the legislation was
13 going to address and the burden was going to be
14 to look at the totality of the circumstances, I
15 would think there would be some language in this
16 legislation that explicitly talks about the
17 totality. It doesn't talk in that respect, and
18 please correct me. What I read is, "was
19 committed in bad faith and not in whole or in
20 part for the purposes of protecting the safety
21 of an act or another person." It does not talk
22 about totality of the circumstances.
23 I guess, please explain to me how
5044
1 this burden could ever be met, because in every
2 instance there could be an allegation made that
3 a law enforcement officer is on the street to
4 protect the public.
5 SENATOR VOLKER: Senator, I think
6 that you and I both know that we do not have to
7 -- that a court will interpret this based on -
8 when you say, "bad faith," they will clearly
9 interpret it based on the circumstances and not
10 the subjective mind of a law enforcement
11 officer. That's not the way it works, Senator.
12 I realize when you are looking at
13 this, you are thinking in those terms. That's
14 not the way it works in reality. In reality,
15 the courts have and will continue to have a
16 right to look at the totality of the
17 circumstances and make determinations. We don't
18 have to tell them that in the statute, because
19 the fact that we have stated in here what the
20 circumstances must be, I think, gives the court
21 the ability to make a determination and moves
22 the prosecution, by the way, to move forward to
23 show that there was not bad faith.
5045
1 And keep in mind here, Senator,
2 you've got to put these two sections together
3 and realize that what you're saying here is that
4 you already had a determination in one way or
5 another of illegally seized evidence, and then
6 that would trip off the issue of whether there
7 was bad faith and the issue of the law
8 enforcement officer's own situation under the
9 circumstances.
10 SENATOR ABATE: Senator Volker,
11 would you yield.
12 ACTING PRESIDENT KUHL: Senator
13 Volker, do you continue to yield?
14 Senator continues to yield.
15 SENATOR ABATE: On the one hand,
16 we do not trust the Court of Appeals to
17 interpret the Constitution and on the other hand
18 we are writing language so broad that talks
19 about -- language, as I stated, in line 15 and
20 16, and we're trusting the Court of Appeals to
21 interpret the intent of the Legislature. So as
22 far as I'm concerned, it seems very ironic. On
23 the one hand, we can't trust them to protect
5046
1 us. On the other hand, we think they can do
2 everything right in interpreting the intent of
3 our laws.
4 But let me get back to -
5 SENATOR VOLKER: Senator, I don't
6 agree with that, by the way, and let me say that
7 we can't exclude the Fourth Amendment of the
8 Constitution here. I think, Senator, you are
9 isolating this piece as if it somehow sits out
10 there by itself. The Fourth Amendment to the
11 Constitution is still there. The issue of
12 illegal search and seizure is clearly still
13 there. We are moving -
14 SENATOR ABATE: Under the federal
15 Constitution.
16 SENATOR VOLKER: Under federal.
17 That's what I'm saying, under the federal
18 Constitution, and we are not abrogating that,
19 clearly and were we to try to do that, we would
20 be subject to a constitutional challenge, which
21 I don't think that this statute would allow
22 that, and I don't think we're giving an enormous
23 amount of latitude to the Court of the Appeals.
5047
1 They have taken that latitude anyways, and I
2 guess I don't exactly see where the problem is
3 except in terms of the fact that you are looking
4 at it, I think, in terms of what the Court of
5 Appeals, in several cases, has already said,
6 while in other cases, they have said some other
7 things.
8 What we're trying to do is make
9 it much more clear as to what the clear meaning
10 of the Constitution is and the clear meaning of
11 Court of Appeals cases are so that there is no
12 confusion.
13 SENATOR ABATE: Senator Volker,
14 would you yield to my last question?
15 SENATOR VOLKER: Certainly.
16 ACTING PRESIDENT KUHL: Senator
17 yields.
18 SENATOR ABATE: Senator, you
19 agree that the responsibility of the Legislature
20 is to write laws; and, recently, when we
21 overturned the Court of Appeals case in the Ryan
22 case, we did that because the Court of Appeals
23 misinterpreted or we felt that the Court of
5048
1 Appeals misinterpreted a law that was passed,
2 and there was a need to clarify that law.
3 SENATOR VOLKER: Right.
4 SENATOR ABATE: So I think we're
5 in agreement that our responsibilities are to
6 write the laws. I don't understand where in
7 statutory authority the Legislature has the
8 authority to interpret the Constitution. Isn't
9 that the sole responsibility of the courts to
10 interpret the law and interpret the
11 Constitution? It is not within the realm of the
12 Legislature.
13 SENATOR VOLKER: Let me just read
14 you Justice Titone in the Johnson case,
15 "Exclusion of evidence is not a command of the
16 New York State Constitution, Article I, Section
17 12. Rather, it is a judicially declared rule of
18 evidence which the Legislature is free to
19 abrogate."
20 That was Justice Titone in the
21 concurring decision in People -- for the Johnson
22 case back in 1985, and the reason -- there are
23 other cases, but I use this because it
5049
1 specifically is in point here; and that is, that
2 it is the -- the Legislature has the authority.
3 And the Court of Appeals, by the way, on more
4 than one occasion -- this is only one of the
5 occasions. In fact, the Governor -- in the memo
6 the Governor cites another case rather than this
7 Johnson case, and we -- Richter Jewelers case,
8 which is a much earlier case, and a history has
9 been developed here.
10 We are not, in reality,
11 abrogating the Court of Appeals. We are
12 directing the Court of Appeals, in effect, using
13 their own cases and saying, "Look! This is the
14 plain meaning of the Constitution." We can't
15 abrogate the federal or the state Constitution.
16 We don't intend to. We just want to make sure
17 that wherever possible that the interpretations
18 fit in with what this Legislature has passed and
19 what the people of this state intended to do
20 when we passed this legislation and to make
21 sure, I think, that the people of this state are
22 properly protected.
23 I think we have the authority to
5050
1 do it, and I think we are doing something which
2 clearly is within our power.
3 SENATOR ABATE: Thank you,
4 Senator. On the bill.
5 ACTING PRESIDENT KUHL: Senator
6 Abate, on the bill.
7 SENATOR ABATE: Not to be
8 dramatic, but this is heartfelt. Both, I think,
9 my knowledge of the criminal justice system, my
10 work on the streets, that this could be one of
11 the darkest moments in legislative history if we
12 pass this legislation today.
13 We are all concerned with crime,
14 and we all wince when we hear of reports when a
15 guilty person and a criminal takes advantage of
16 the Constitution and takes advantage of the
17 criminal justice system, when we hear reports
18 that someone is set free because of the Fourth
19 Amendment. But regardless of these few cases
20 and these few occasions where criminals take
21 advantage of the Constitution, I have not heard
22 today any rationale based on full cases that
23 have been articulated to make such a radical
5051
1 change in our constitutional protections.
2 Certainly, we can't argue -- and
3 I believe law enforcement today is more than
4 willing and able and fully prepared to follow
5 the Fourth Amendment, and we can't argue the
6 police are so handicapped that they can't make
7 arrests. We can't argue that not enough people
8 are getting convicted. We can't argue that most
9 cases are suppressed after a suppression
10 motion. We know that's not the case.
11 If you've ever done defense, it's
12 an extraordinary situation when a motion to
13 suppress is granted. It's certainly an
14 exception. It's a minutiae of the totality of
15 cases that are heard on motion to suppress
16 issues.
17 And, certainly, we can't argue in
18 law enforcement in our criminal justice system,
19 we are not doing a splendid job of first
20 arresting, convicting and imprisoning huge
21 numbers of people.
22 What we're doing today is
23 forgetting what the origin of the exclusionary
5052
1 rule was. It's not to protect criminals. It's
2 to protect innocent people, and we always think
3 about the exclusionary rule within the context
4 of the criminal justice system. But what we
5 should be thinking about is all those innocent
6 people that walk down their streets, live and
7 work in their communities every day, and should
8 they be subjected to unwarranted intrusions
9 because the officer has a hunch based on, let's
10 say, good faith, based on a reason that he can
11 articulate or can't articulate?
12 Should individual innocent people
13 be subjected to these unwarranted intrusions?
14 And that is what will happen. The exclusionary
15 rule will hurt innocent people throughout the
16 state. We never hear about the officers
17 stopping innocent people. They act on a hunch
18 and no one gets arrested because the innocent
19 person didn't have drugs, didn't have guns,
20 wasn't involved in criminal activity. There are
21 thousands of cases like that where we can't give
22 a voice. We can't measure that harm.
23 So I submit what we're doing
5053
1 today is not helping the few criminals that get
2 off. We're hurting the huge numbers of people
3 who are innocent and need to be protected in
4 terms of their privacy rights.
5 I believe this legislation would
6 be a virtual abolition of the state exclusionary
7 rule, I believe, as it's written, in terms of
8 the bad faith exception and in addition, the
9 proof has to show that the officer was not
10 involved in legitimate law enforcement duties.
11 If an officer has a uniform, they are out there
12 doing legitimate work, conceivably. How will
13 the defendant ever be able show that there was
14 bad faith?
15 In essence, what we're doing,
16 we're saying now to the Court of Appeals, "Do
17 not get involved in protecting the rights of
18 citizens. It's no longer your job." And that's
19 what this legislation is doing.
20 I think it's a frontal attract on
21 the doctrine of separation of powers. It is a
22 frontal attack on the independence of the
23 judiciary, and we in the Legislature, by passing
5054
1 this, are treading on the authority of the Court
2 of Appeals to interpret the laws of the state.
3 We can have an active and legitimate role in
4 this area. Let's not overstep our bounds. We
5 can say the Court should interpret the rules
6 and, if we object to the way they interpret the
7 Constitution, we can amend the Constitution to
8 make it clearer. That is what our role in the
9 Legislature is, for legitimate purposes to amend
10 the Constitution, not to intervene and to take
11 away the authority of the courts.
12 And we should ask ourselves who
13 is in the best position to protect the citizens
14 of New York State? Is it people in Washington,
15 or should we ignore 20 years of jurisprudence
16 and say that the judges we elect and appoint do
17 not understand our traditions, do not understand
18 the law of New York State? I mean, repeatedly,
19 we as Republicans and Democrats talk about state
20 rights, the ability of the states to be able to
21 fashion their own laws to protect their
22 citizens. Why in this instance are we saying we
23 are not able to protect ourselves and must rely
5055
1 on federal guidelines?
2 I believe the outcome of this
3 legislation if it's passed will invite more
4 unwarranted intrusions. It's so broadly
5 drafted, law enforcement officers can stop
6 people for no reason or any reason at all.
7 There does not have to be any indication of
8 criminality and, moreover, it will not give
9 guidance to the police department so they can be
10 trained and that there is an actual accurate
11 description of what is allowable under the law.
12 So if you talk to police
13 commissioners over the last 20 years -- and
14 there's some documentation -- they wanted the
15 courts -- they wanted clear guidance as to how
16 they should train their officers.
17 So let me just end and when I
18 started that this is a -- I think, a grim day
19 because I believe the Constitution is not just
20 an inconvenience. It's not just a piece of
21 paper. It's not something we can hold up as
22 true on one day and discard on another, that it
23 is a precious document that should be cherished
5056
1 and that it should not be tampered with, and it
2 should withstand the whims and changing views of
3 the populace.
4 And so when I heard today that
5 the times demand it, that is exactly the reason
6 why we should not tamper with the Constitution.
7 Yesterday may demand something differently,
8 today something else, and tomorrow a different
9 result, and that's why we have a Constitution
10 that we do not change it willy-nilly at whim,
11 and there is a process available to the
12 Legislature if we want to clarify or change that
13 Constitution.
14 We should not destroy the
15 doctrine of separation of powers and the
16 independence of the judiciary. This is a very
17 dangerous path we're embarking upon. I hope all
18 of you will give it a second thought. We all
19 care about law enforcement. We all care about
20 stopping crime on the street, but there must be
21 a balance, a reasonable balance between law
22 enforcement and the protection of innocent -
23 and let me underscore, innocent people that walk
5057
1 and live on our streets.
2 So I hope many of you who might
3 have been predisposed to vote for this
4 legislation will consider voting against it.
5 Take another look. Again this is a dangerous
6 course, and it needs to be stopped.
7 Thank you.
8 ACTING PRESIDENT KUHL: Chair
9 recognizes Senator Dollinger.
10 But before that, Senator
11 Holland.
12 SENATOR HOLLAND: Could we read
13 the last section and let Senator Santiago vote,
14 please.
15 ACTING PRESIDENT KUHL: Secretary
16 will read the last section.
17 THE SECRETARY: Section 5. This
18 act shall take effect immediately.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll.)
22 Senator Santiago, how do you
23 vote?
5058
1 SENATOR SANTIAGO: In the
2 negative.
3 ACTING PRESIDENT KUHL: Senator
4 Santiago will be recorded in the negative.
5 The roll call is withdrawn.
6 We're back on debate.
7 Chair recognizes Senator
8 Dollinger for the floor.
9 SENATOR DOLLINGER: Will Senator
10 Volker yield for a couple of questions?
11 ACTING PRESIDENT KUHL: Senator
12 Volker, do you yield to a couple of questions
13 from Senator Dollinger?
14 Senator yields.
15 SENATOR DOLLINGER: Senator, I
16 appreciate the courtesy that you gave to the
17 members of the Codes Committee in delaying this
18 debate. As you may know, I sent a memo to your
19 office, and we've reviewed, and I think your
20 counsel has reviewed.
21 What I would like to do is focus,
22 if I could, with a series of questions about
23 just one portion of the bill to try to highlight
5059
1 one of the points Senator Abate made, which is
2 how the drafting of this bill is just going to
3 punt to the courts all kinds of critical
4 determinations that are not really specified in
5 the bill.
6 So with that in mind, through
7 you, Mr. President, can I turn your attention to
8 line 12 in the bill which talks about criminal
9 law enforcement duties. It says that when
10 engaged in criminal law enforcement duties -
11 this deals with the section that gives officers
12 the right to stop people and ask questions.
13 Does it mean that -- does this section mean that
14 it only applies if they are involved in criminal
15 law enforcement duties? What happens if they
16 are enforcing traffic laws and they want to stop
17 someone and ask them a question but they are
18 only giving out traffic tickets? Are they
19 permitted to then ask the questions and follow
20 the course of conduct described in the bill?
21 SENATOR VOLKER: I don't think
22 that the issues that are involved in this bill
23 have generally come up on traffic stops, but I
5060
1 think what you'll find that if you follow the
2 Vehicle and Traffic Law you will find there are
3 criminal offenses within the Vehicle and Traffic
4 Law. So when a police officer is involved in
5 enforcing the Vehicle and Traffic Law, he is
6 also involved in the -- engaged in criminal law
7 enforcement. So I think the answer to that is
8 it would be included, although these kinds of
9 issues generally don't come up unless there's
10 something more than just traffic involved. But
11 I think the answer is you will find clearly that
12 criminal law is involved in traffic enforcement
13 also.
14 SENATOR DOLLINGER: But, again
15 through you, Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Volker, do you continue to yield?
18 SENATOR VOLKER: Yes.
19 ACTING PRESIDENT KUHL: Senator
20 yields.
21 SENATOR DOLLINGER: All of the
22 issues in this portion of the statute, as you
23 know, will be litigated to death in the courts
5061
1 of this state because sooner or later some
2 police officer is going to stop someone, ask him
3 a series of questions, arrest him. They'll find
4 out he or she has drugs on them or some other
5 contraband and, lo and behold, the question will
6 be the validity of the stop and the validity of
7 the questioning, all of which hinge on the
8 specific, very narrowly construed language in
9 this statute; isn't that correct?
10 SENATOR VOLKER: Yes, it is, but
11 I can't imagine -- and, of course, I suppose you
12 could have a judge that would say, "Well,
13 there's criminal penalties in the Vehicle and
14 Traffic Law and any time that you are involved
15 with the automobile in traffic that the criminal
16 law could be involved, but we don't think that
17 it's specific enough." Sure, you could, but I
18 think, in general, that would be considered to
19 be unreasonable.
20 And it seems to me when you get
21 too specific that's when you get into problems,
22 and I think I could make the reverse argument to
23 what you are making that I think it is specific
5062
1 enough. In fact, you might have a problem if we
2 talked about the V&T law with just the V&T Law
3 and whether these issues should involve just the
4 V&T Law.
5 So I think that this statute does
6 apply to what you are talking about but only in
7 a very narrow manner, so I think the issue of
8 V&T stops is very clear. That's already in the
9 law. The issue of the criminal law would occur
10 afterwards.
11 SENATOR DOLLINGER: Again,
12 through you, Mr. President.
13 What happens if the person under
14 this statute refuses to answer the question?
15 What's the consequence to the individual?
16 SENATOR VOLKER: The answer, I
17 think, to that would depend on the
18 circumstances. If the law enforcement officer
19 stops somebody and can find nothing wrong, if
20 the person doesn't want to answer, there's very
21 little that police officer can do. If the
22 person -- if the law enforcement officer directs
23 him to do something and he absolutely refuses, I
5063
1 suppose he could -- in the Vehicle and Traffic
2 Law, he could bring some violation against him
3 if he was blocking traffic or something of that
4 nature.
5 But, generally speaking, the
6 truth is, Senator, if without -- if there is no
7 violation, there is no criminal conduct, and it
8 did happen to me at times. When I asked
9 somebody some questions and they wouldn't tell
10 me, if I didn't find anything wrong, I just let
11 him go.
12 SENATOR DOLLINGER: Well, then I
13 guess my question is, what does this statute
14 add, then, to the laws of this state?
15 SENATOR VOLKER: Well, what it
16 adds, Senator, is if there is some sort of
17 criminal conduct, then you have -- I mean,
18 Senator, I think the thing is you are looking at
19 it from the law student side. I am looking at
20 it from what really happens out in the street,
21 and that's what this statute is about, and I
22 think that is the trouble. The trouble is that
23 we must look at it not from the standpoint of
5064
1 what lawyers think in the courtroom but what
2 really happens on the street.
3 What this statute involves is the
4 issue of somebody stopping a person, and there
5 is a standard for what is involved in that stop,
6 and we don't have a judge standing there, of
7 course, looking over his shoulder and saying,
8 This is what you should do or you should do that
9 right here. So we have to set standards. What
10 this bill attempts to do is set standards.
11 SENATOR DOLLINGER: Again through
12 you, Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Volker, do you continue to yield?
15 SENATOR VOLKER: Certainly.
16 ACTING PRESIDENT KUHL: Senator
17 yields.
18 SENATOR DOLLINGER: I guess my
19 question is, what standard is set when it says,
20 "when he has an objective, credible reason not
21 necessarily indicative of criminality"?
22 SENATOR VOLKER: Right.
23 SENATOR DOLLINGER: What does
5065
1 that mean?
2 SENATOR VOLKER: That means it's
3 an objective, credible reason not necessarily
4 indicative of criminality. I think that's
5 pretty clear. If there's a reason -- and, by
6 the way, if he can't show that, then it's
7 probably going to be thrown out.
8 SENATOR DOLLINGER: But I guess
9 my question is, if he believes that there's
10 criminal conduct, he clearly has a right to ask
11 questions. He has a right to apprehend. Now we
12 have laws that define when he can apprehend for
13 misdemeanors, when for felonies.
14 But my question is, "an
15 objective, credible reason which is not
16 necessarily indicative of criminality," could
17 that be the presence of an African-American in a
18 predominantly white neighborhood?
19 SENATOR VOLKER: I think the
20 answer to that is that, if that were to be
21 determined to be, the answer would be no. There
22 isn't a court in this state that would say that
23 kind of a stop would be legal.
5066
1 SENATOR DOLLINGER: All right.
2 But if he has an objective, credible reason but
3 it doesn't relate to anything criminal but it
4 relates to something else, what is that
5 something else that would promote, would trigger
6 the application of this statute?
7 It's obviously not a crime. He
8 has done nothing wrong. There is no evidence
9 he's done anything wrong. But for some reason
10 this bill would give the police the ability to
11 say to somebody, "I know you have done nothing
12 wrong but I have a clearly objective reason to
13 ask you a series of questions," to which, I
14 would assume, the individual would say, "What
15 have I done wrong, officer?" The officer would
16 say, "Nothing, but you've still got to answer my
17 questions."
18 I guess my question is, when
19 would he do that?
20 SENATOR VOLKER: What you just
21 said is not correct, by the way. Let me just
22 say that no one is saying that anybody
23 necessarily is allowed to ask a series of
5067
1 questions unless there's some reason for it.
2 You are saying, what is that reason? I don't
3 know what that reason would be and that's one of
4 the reasons we have this in the law.
5 And by the way, we are, in effect
6 -- remember, the statute is already there. No
7 one is saying, even the Court of Appeals has not
8 said that a person can't be confronted and
9 questioned. The issue is what the standards
10 are.
11 For instance, you mentioned a
12 traffic stop. The issue of whether you can stop
13 a car is pretty clear. Obviously, you can stop
14 a car if a person violates a V&T statute or
15 there is an indication that that person may have
16 violated the V&T, or even if not. You can just
17 stop a car to check that vehicle out for various
18 reasons, for plates and things of that reason.
19 The right to do that for a law enforcement
20 officer is clear, and the questions about the
21 person's driving are clear. Then comes the
22 indication, though, that if there's something
23 potentially, for one reason or another, is a
5068
1 person lying on the other side of the car who is
2 drunk, for instance, just as a example, and then
3 the issue is, is that person all right, is that
4 person sick, things of that nature.
5 SENATOR DOLLINGER: Right, but
6 again through you, Mr. President.
7 ACTING PRESIDENT KUHL: Senator
8 Dollinger, just let me interrupt for one minute
9 because there have been several inquiries from
10 members. Debate on this issue started at 3:38,
11 so we're about 18 minutes away from the two-hour
12 time limit, and Senator Leichter has indicated a
13 desire to speak also. I just bring that to your
14 attention.
15 Senator Volker, do you yield to
16 another question?
17 SENATOR VOLKER: Sure.
18 ACTING PRESIDENT KUHL: Senator
19 yields.
20 SENATOR DOLLINGER: Under the
21 circumstances that you've just described, those
22 would all involve indications of criminality,
23 drunkenness, public intoxication, driving while
5069
1 intoxicated, violations of the Vehicle and
2 Traffic Law. This statute envisions some other
3 objective, credible reason for which an officer
4 can stop someone, ask him a series of questions
5 and then, it seems to me, Senator, the critical
6 issue then is, what happens if the individual
7 says, "Go to hell?" What happens?
8 SENATOR VOLKER: If there is no
9 criminality and if there is no indication that
10 there is anything improper, illegal, or in
11 violation of any statute, I presume that law
12 enforcement officer would have to let that
13 person go.
14 SENATOR DOLLINGER: Well, then,
15 how does this change current law?
16 SENATOR VOLKER: When it changes
17 current law is in the issue -- how it really
18 changes current law is when you find somebody
19 who has actually either done something or has
20 some sort of evidence or something that there's
21 some reason for obviously arresting him, and the
22 criteria is set out, by the way, already now.
23 It was set out in the Court of Appeals case.
5070
1 The Constitution is still there.
2 The Fourth Amendment, all that sort of stuff, is
3 still there. All we are doing here, in fact, is
4 setting a specific standard by which that person
5 or the law enforcement person would make some
6 judgment.
7 What you are saying to me,
8 Senator, is -- let me tell you something. If
9 you don't trust law enforcement officers, then
10 no standard is going to be used. This doesn't,
11 by the way, substantially change what has been
12 the law in this state for some years, except
13 that some very technical Court of Appeals cases
14 have added some additional problems to the
15 ability of law enforcement people to challenge
16 people.
17 Now, Senator, if you don't trust
18 law enforcement officers, then nothing we will
19 do here is going to be acceptable. My attitude
20 is -- have there been some illegal searches over
21 the years? When I was a police officer, I saw
22 some. They were thrown out, by the way, then
23 just as they could be thrown out under this
5071
1 bill.
2 Should law enforcement officers
3 be properly trained? Of course, they should.
4 Is this legislation -- are we opening up the
5 Pandora's box? We're not changing the
6 Constitution.
7 What you're saying to me is, your
8 trust for law enforcement officers is such that
9 you are afraid that this is going to be abused.
10 Senator, that's not really the issue. The issue
11 is we have a standard here, and we are setting
12 up a standard which I think is reasonable. You
13 don't agree. I understand that.
14 But, Senator, I don't think this
15 is lacking in definity, as you may think. I
16 like to think that I'm a decent lawyer. I think
17 I know what this statute says, what this
18 provision says, and I think that it's something,
19 I think, that not only can stand up -- stand the
20 test of the court, but I think it can stand the
21 test of reasonableness.
22 SENATOR DOLLINGER: Just so you
23 know, Senator, it's not law enforcement I don't
5072
1 trust. It's the government that I don't trust.
2 It's the government that makes -- I think law
3 enforcement does what government tells it to
4 do. It's the notion of government taking away
5 people's civil liberties that makes me so
6 distrustful.
7 On the bill, Mr. President.
8 This debate is not new in New
9 York. As Senator Volker probably knows, there
10 was a lively debate in 1938 when the
11 constitutional amendment that we talk about
12 today was passed. I think it might be
13 appropriate just to read the sort of blunt
14 language of that amendment.
15 It says -- this is Article I,
16 Section 12, of the Constitution. It is
17 identical to the Fourth Amendment of the United
18 States Constitution. It starts off with a very
19 interesting phrase. It says, "The right of the
20 people to be secure in their persons, their
21 houses, their papers and effects, against
22 unreasonable searches and seizures shall not be
23 violated, and no warrant shall issue but upon
5073
1 probable cause supported by oath or affirmation
2 and particularly describing the place to be
3 searched and the persons or things to be
4 seized."
5 As Senator Volker, I believe,
6 knows, in 1938, when that amendment was passed,
7 there was a proposal in the Constitutional
8 Convention to create an exclusionary clause, and
9 there was a very wonderful debate which -- I've
10 got the constitutional records here. I would
11 just like to read, I guess, the section that
12 perhaps agrees with my position today.
13 This is from a man named Osborn,
14 who had grown up in Germany. He talked about
15 how those who favor the exclusionary rule were
16 oftentimes accused of being soft on crime. He
17 follows with this commentary.
18 He says, "Then the person who
19 opposes me asks, 'Who are the people who would
20 be protected by these proposals?' and answers
21 himself in these words, 'Call the roll. Al
22 Capone, Lucky Luciano, Waxy Gordon, Dutch
23 Schultz, Toosie Herbert, and all the others.' I
5074
1 resent any distinguished prosecutor or any other
2 person saying or implying that I have any
3 interest in Al Capone, Toosie Herbert, or their
4 brothers in crime. I resent having my picture
5 attached to this rogue's gallery because I
6 happen to differ with the distinguished
7 prosecutors. My family has lived long and
8 honorably in the State of New York. Through my
9 late father, I have been intimately connected
10 with the problem of crime prevention and crime
11 elimination. The imputation that because I
12 favor this proposal I am participating in a plot
13 to slip through a joker that will protect the
14 criminal is as false as it is unwarranted. If
15 every person who dares to disagree with the
16 prosecutor is to be consigned to the criminal
17 classes, then free speech and free thought are
18 dead in this state. This cruel and deceptive
19 contention is the strongest argument advanced
20 yet for the inclusion of a forceful search and
21 seizure provision in our Constitution to protect
22 the honest, respectable, law-abiding citizens
23 from unscrupulous and overzealous officials who,
5075
1 wrapping themselves in the cloak of
2 infallibility, look upon every man as guilty
3 until proven innocent. But there is the more
4 fundamental aspect of this question. We want no
5 racketeers or mobsters or gangsters in this
6 country, but neither do we want to open the door
7 one millionth of an inch to racketeers of
8 intolerance, hatred, and political oppression
9 such as control Germany today, and I know no
10 better way to open that door than to sanctify
11 their methods by our agreement. Some day, of
12 course, the fundamentally great German people
13 will rise and banish the metaled and uniformed
14 gunmen who are their present leaders and make
15 William of Hohenzollern and his Junkers look
16 like honest, just, and upright gentlemen. But
17 the choice for us is clear between traditional
18 American methods and the methods of Nazi
19 tyranny. There can be no autocratic shortcuts
20 for democracy. There is no hope for democracy
21 save more democracy; and when a democracy finds
22 it necessary to resort, however discretely, to
23 the favored instruments of the GPU and the
5076
1 Gestapo, it risks dangers far worse than the
2 greatest criminal wave that this country has
3 ever known. Such dangers seem remote as we sit
4 here today. I hope they are, but they exist,
5 and we should never forget now, as always,
6 eternal vigilance is the price of liberty."
7 It's a wonderful debate. It's a
8 wonderful commentary. It seems to me that what
9 we've done in this legislation is we came up
10 with a nice little epigram. Described it "The
11 Police Protection Act." Of course, everybody
12 believes in police protection. Those who are
13 going to oppose this bill were against
14 protecting the police. I can read the
15 television commercials. I know what all the
16 printed material is going to say, "That Rick
17 Dollinger, he voted against the police."
18 He didn't vote against the
19 police. He voted because he believes that this
20 bill is wrong-headed; that the power that
21 Senator Volker wants to give to people to stop
22 and ask is a power in this bill that defies
23 definition. If it's a crime, you can stop, you
5077
1 can ask, you can search. You can do it under
2 reasonable suspicion. You can do it under
3 probable cause to believe that there's a crime.
4 Police have great latitude.
5 What this statute says is, even
6 though you have no evidence of criminality -
7 there is none -- you can nonetheless have a
8 police officer who might not even be wearing a
9 uniform, who might look just like me, stand up
10 to someone and say, "I got a couple questions
11 for you, guy. If you don't answer, I'm going to
12 take you down to the station." It sounds like a
13 time long ago that we buried that kind of
14 governmental abuse, not the police abusing it,
15 but government abusing its prerogatives.
16 And it seems to me, further, that
17 the notion that Senator Abate talked about, the
18 question of good and bad faith shifts to the
19 person who is accused the obligation to prove
20 that government has acted inappropriately. It
21 seems to me that in order to justify evidence,
22 in order to take evidence into our courts, the
23 exclusionary rule adopted by the United States
5078
1 Supreme Court 70 years ago has stood the test of
2 time.
3 And it seems to me, although I
4 would be the first to perhaps disagree with my
5 colleagues, Senator, who say that we don't have
6 the constitutional right to do this, I think we
7 do have the constitutional right to do it. We
8 can say to any Court in this state, "We have
9 looked at your remedy applied to your
10 constitutional harm, and we've decided that we
11 want to enact a different remedy." I think we
12 could pass this and perhaps make it
13 constitutional.
14 But more importantly, it seems to
15 me, it sends the wrong message about the role of
16 government in our society. It seems to me we
17 turn the criminal justice system on its head.
18 It seems to me we send a message that the
19 precious liberties, the precious rights that
20 were so deeply fought for in this country will
21 be lost.
22 I will close with Justice
23 Brandeis. We're all quoting judges these days,
5079
1 let me just quote him. "Decency, security and
2 liberty alike demand that government officials
3 shall be subjected to the same rules of conduct
4 that are commands to the citizen. In a
5 government of laws, existence of the government
6 will be imperiled if it fails to observe the law
7 scrupulously. Our government is the potent, the
8 omnipotent teacher. For good or ill, it teaches
9 the whole people by its example. Crime is
10 contagious. If the government becomes a law
11 breaker, it breeds contempt for law. It invites
12 every man to become a law unto himself. It
13 invites anarchy. To declare that in the
14 administration of the criminal law the end
15 justified the means, to declare that the
16 government may commit crimes to secure the
17 conviction of a private criminal would bring
18 terrible retribution. Against that pernicious
19 doctrine, this court should resolutely set its
20 face."
21 Reluctantly, Mr. Chairman and Mr.
22 President, I will be voting in the negative.
23 ACTING PRESIDENT KUHL: Senator
5080
1 Leichter on the bill.
2 SENATOR LEICHTER: Thank you, Mr.
3 President.
4 I think all of us accept that our
5 first duty and obligation is to protect the
6 public safety, and I think all of us appreciate
7 the concerns that exist in this society about
8 the high level of violence, the high level of
9 crime, although fortunately in this state, in my
10 city and throughout the nation, crime has been
11 declining, probably for demographic reasons but
12 it has been declining.
13 But, nevertheless, we want to
14 continue to see that where we can strengthen law
15 enforcement, we will do this, and I don't think
16 there's any difference here among us on this. I
17 think the one thing that if you really are
18 concerned about law enforcement that you ought
19 to hold sacred is that you will not politicize
20 it; that will you will not make it such a
21 partisan issue that you don't really care about
22 law enforcement; what you care about are votes.
23 I must say that as I read this
5081
1 bill it was either drafted with blatant politics
2 in mind or sheer ignorance. This is, without
3 question, the worst drafted bill that I can
4 remember seeing in many a year, and I can not
5 believe with all the disagreements I have with
6 the second floor that anybody on the second
7 floor could have drafted this. And I've been
8 thinking here, "Who could have drafted this?"
9 Now, I know Dale Volker didn't
10 draft it because I've worked with him. We
11 differ, but his workmanship, his quality, is
12 fine, and I came up with only one name, only one
13 person that could have drafted this. I think
14 this bill was drafted by Bill Powers, the
15 Republican State Chairman, because no way can
16 you otherwise explain what is a bill that really
17 makes so little sense, that has so many
18 loopholes, that's clearly unconstitutional.
19 And I want to say to you, Senator
20 Volker, I have the world of respect for you
21 because you stood up very manfully. You
22 defended this bill. You did it as skillfully as
23 could be done, and I didn't see any colleague
5082
1 from your side of the aisle get up and give you
2 any help for good reason.
3 And, Senator, I want to make it
4 very clear. In no way am I in any way
5 denigrating your good work, and if we ask you
6 questions and try to show up what we see are
7 inconsistencies in the bills and flaws, it's not
8 in any way criticism of you.
9 With that in mind, I just want to
10 ask you just a couple of questions on one aspect
11 of the bill.
12 ACTING PRESIDENT KUHL: Senator
13 Volker, do you yield?
14 SENATOR VOLKER: Sure.
15 ACTING PRESIDENT KUHL: Senator
16 Volker yields.
17 SENATOR LEICHTER: Thank you,
18 Senator. This is Section 4, which starts on
19 page 9 and which deals with the circumstances
20 under which a court can suppress evidence.
21 And as I read it, and tell me if
22 I'm correct, the suppression of evidence may not
23 occur under two specific circumstances, right,
5083
1 or unless two specific circumstances are met?
2 SENATOR VOLKER: Right.
3 SENATOR LEICHTER: One of them
4 relates to Section 12 of Article I of the
5 Constitution, and I think Senator Abate asked
6 you about that, and I think raised some very
7 significant questions. I want to ask you about
8 the second part.
9 Now, the two are distinct,
10 because the wording is not "and" but "or", so
11 under either one of these.
12 Now, under the second one, it
13 seems to say that any statute of this state that
14 we enact on or after the effective date of this
15 particular bill, if it becomes law, that any -
16 where we say that you can not suppress or,
17 rather, on the other hand, it's really the other
18 thing; that unless we say suppression can occur,
19 the Court may not suppress the evidence.
20 Right?
21 SENATOR VOLKER: Yes. I think
22 that's correct. But, of course, it would still
23 be governed by the Fourth Amendment to the
5084
1 Constitution and so that we would be limited in
2 what we could do, but that's correct, yes.
3 And remember that we're talking
4 about "or" and we are still governed by number
5 1, the first paragraph of the Constitution. So,
6 yes, that's true, and this is "or," but we're
7 still going to be governed.
8 SENATOR LEICHTER: Senator, I'm
9 glad you at least concede at least to this
10 extent that we will be governed by the
11 Constitution. But this bill is an effort, is it
12 not, to tell the courts how to interpret the
13 Fourth Amendment and to, in fact, change the way
14 the courts have been interpreting the Fourth
15 Amendment and how the courts have been
16 suppressing evidence?
17 SENATOR VOLKER: No, I don't
18 think it's an attempt to interpret the Fourth
19 Amendment. I think it's an attempt to clarify
20 the way in which the courts have actually dealt
21 with Section 12 of Article I of the
22 Constitution. As you, I'm sure, were listening,
23 I related to you the People versus Johnson case
5085
1 and other cases where the Court of Appeals
2 specifically said that the Legislature has the
3 right to determine how this evidence can be
4 admitted; that it is a judicially declared rule
5 of evidence that the Legislature is free to
6 abrogate. I think that's what we're referring
7 to in 2 also, and we're following that with this
8 provision.
9 SENATOR LEICHTER: Well, Senator,
10 you know, you have given us a lot of, "Well,
11 what we really meant" or how it should be
12 interpreted, but as you read this language, on
13 the face of it, it says that this Legislature by
14 statute can tell the Court that you shall only
15 permit the suppression of evidence under
16 circumstances that we permit. Isn't that what
17 the language states?
18 SENATOR VOLKER: Well, we are
19 taking what the courts have already said. We
20 are not -- once again, let me say we are not
21 abrogating either the Constitution, the Fourth
22 Amendment of the Constitution, obviously, or the
23 section of the Constitution which is identical
5086
1 in the state Constitution. We are saying that
2 the Legislature has the right -- where a court
3 goes even farther in interpretations, has the
4 right to make decisions in this area, and there
5 is a Court of Appeals case, as I said, that
6 specifically says that that's correct.
7 SENATOR LEICHTER: Well, Mr.
8 President, on the bill, and my thanks -
9 ACTING PRESIDENT KUHL: Senator
10 Leichter on the bill.
11 SENATOR LEICHTER: And my thanks
12 to my colleague.
13 I must say that, certainly,
14 listening to the questions of Senator Waldon and
15 Abate and Senator Dollinger and hearing the
16 answers, it seems clear to me that either this
17 bill in certain respects says absolutely nothing
18 or that it's a very blatant attempt to interfere
19 with the judiciary and to change the
20 Constitution by statute. I think this is an
21 effort to overrule the Court's interpretation of
22 the Fourth Amendment and of Article I, Section
23 12 of the state Constitution -- or Section 12 of
5087
1 Article I of the state Constitution.
2 And let me just say that I know
3 that the Governor and Senator Volker have pulled
4 out one or two cases where, on the face of it
5 without all the facts being made clear, it may
6 seem that the Court suppressed evidence which
7 allowed somebody who appeared to be guilty to go
8 free, and I'm sure that any court under any
9 document at some times will make mistakes.
10 But there's nothing worse that we
11 could do than to take what is the greatest
12 document in the history of this world for the
13 governing of a society's affairs and to change
14 the shining jewel of that document, the Bill of
15 Rights -- and that is true whether we speak of
16 the U.S. Constitution or we speak of the state
17 Constitution, and nobody here has shown a
18 problem. If there was a problem, then maybe
19 you'd amend the Constitution.
20 Because nobody has said or shown
21 or can reasonably claim that in some ways we're
22 endangered as a society or that the level of
23 crime relates to the fact that the suppression
5088
1 of evidence is making it impossible for law
2 enforcement officials to do their jobs and
3 protect the public. The fact is there is a
4 minuscule number of cases that are thrown out on
5 suppression of evidence, and in those minuscule
6 cases you can only find minuscule numbers where
7 you could possibly disagree with the Court.
8 But what is important are
9 constitutional protections. We ought to embrace
10 this Constitution. We ought to worship it. We
11 ought to uphold it. We ought to defend it. We
12 ought to protect it and not to undermine it as
13 this bill seeks to do.
14 Senator Volker, at one time, I
15 think when you were answering questions by
16 either Senator Waldon or Senator Abate, I think
17 you stated that we, we the Legislature, have the
18 right to interfere when the Court isn't doing
19 its job. I don't know what that means. I don't
20 think we do. The separation of power doesn't
21 permit that. The Court may be wrong and, if
22 it's wrong when it involves an interpretation of
23 a statute, we can change that statute. But when
5089
1 it involves the Constitution -- and you may
2 disagree and I may disagree -- we can certainly
3 change the composition of the court, and that's
4 a legitimate way to change public policy, but we
5 can't by statute overrule constitutional
6 interpretations, and that's what you seek to do
7 and that involves something even more serious,
8 something that is more dangerous than maybe some
9 criminals getting off, and that is that you are
10 tampering with the basic protections of people
11 in our society.
12 I remember at some period of time
13 after I came to this country, I heard somebody
14 say, and I thought it was the most wonderful
15 statement, that the laws of this country and our
16 law enforcement and judicial system would rather
17 let 100 guilty people go than to convict one
18 innocent person. Yes. That means that we
19 probably under our laws let people go that in a
20 less democratic or liberty-oriented system would
21 be held guilty, and in that way -- maybe it's
22 true. People say there was less crime in Nazi
23 Germany than there is now in Germany.
5090
1 But the fact is that by doing
2 this, we're protecting basic rights of people to
3 be free. You who claim always -- you, the
4 Republicans, that you are concerned about the
5 interference of government in the affairs of
6 people, yet here you want to take away one of
7 the most sacred rights. Unlawful search and
8 seizure is banned.
9 So let me just say, as a
10 political document, I can understand it. As
11 Senator Farley said -- those are immortal words,
12 Senator, which we keep on quoting -- "We're not
13 voting on bills; we're voting on issues." If
14 you want to vote on issues, the political issue,
15 you've got it and you can use this.
16 But let me just tell you. The
17 lovers of liberty, the protectors of democracy,
18 the protectors of the public, are the ones who
19 will vote against this bill.
20 ACTING PRESIDENT KUHL: Read the
21 last section.
22 THE SECRETARY: Section 5. This
23 act shall take effect immediately.
5091
1 ACTING PRESIDENT KUHL: Call the
2 roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 48.
5 ACTING PRESIDENT KUHL: Senator
6 Montgomery to explain her vote.
7 SENATOR LEICHTER: Slow roll
8 call.
9 ACTING PRESIDENT KUHL: The
10 Secretary will call the roll slowly. Ring the
11 bells.
12 THE SECRETARY: Senator Abate.
13 SENATOR ABATE: No.
14 THE SECRETARY: Senator Alesi.
15 SENATOR ALESI: Yes.
16 THE SECRETARY: Senator Babbush.
17 (There was no response.)
18 Senator Bruno.
19 (Affirmative indication.)
20 THE SECRETARY: Senator Connor.
21 (Negative indication.)
22 THE SECRETARY: Senator Cook.
23 SENATOR COOK: Yes.
5092
1 THE SECRETARY: Senator
2 DeFrancisco.
3 (There was no response.)
4 Senator DiCarlo.
5 (There was no response.)
6 Senator Dollinger.
7 SENATOR DOLLINGER: Mr.
8 President, just briefly to explain my vote.
9 ACTING PRESIDENT KUHL: Senator
10 Dollinger to explain his vote.
11 SENATOR DOLLINGER: I was very
12 simple, Mr. President. This isn't a vote
13 against my lack of faith in law enforcement.
14 This is my lack of faith in the government and
15 my belief that the powers of the majority
16 expressed in government can not -- can not and
17 never should take away the precious rights that
18 the people of this state put into Article I,
19 Section 12 of the state Constitution. We
20 shouldn't do it. It's the wrong thing to do.
21 No.
22 ACTING PRESIDENT KUHL: Senator
23 Dollinger in the negative.
5093
1 Secretary will continue to call
2 the roll slowly.
3 THE SECRETARY: Senator Espada.
4 SENATOR ESPADA: No.
5 THE SECRETARY: Senator Farley.
6 SENATOR FARLEY: Aye.
7 THE SECRETARY: Senator Gold.
8 SENATOR GOLD: In the negative.
9 THE SECRETARY: Senator Gonzalez,
10 excused. Senator Goodman.
11 (There was no response.)
12 Senator Hannon.
13 (There was no response.)
14 Senator Hoblock.
15 SENATOR HOBLOCK: Yes.
16 THE SECRETARY: Senator
17 Hoffmann.
18 (There was no response.)
19 Senator Holland.
20 SENATOR HOLLAND: Yes.
21 THE SECRETARY: Senator Johnson,
22 excused.
23 Senator Kruger.
5094
1 (There was no response.)
2 Senator Kuhl.
3 SENATOR KUHL: Aye.
4 THE SECRETARY: Senator Lachman.
5 SENATOR LACHMAN: Nay.
6 THE SECRETARY: Senator Lack.
7 SENATOR LACK: Aye.
8 THE SECRETARY: Senator Larkin.
9 SENATOR LARKIN: Aye.
10 THE SECRETARY: Senator LaValle.
11 SENATOR LAVALLE: Aye.
12 THE SECRETARY: Senator Leibell.
13 (There was no response.)
14 Senator Leichter.
15 SENATOR LEICHTER: Mr. President.
16 ACTING PRESIDENT KUHL: Senator
17 Leichter to explain his vote.
18 SENATOR LEICHTER: I'm sorry, I
19 have forgotten to do something. Since everybody
20 has been quoting judges and they are great
21 constitutional judges, I'm going to quote a
22 judge who may not be -- certainly known here but
23 may not be known throughout the nation, but he
5095
1 deserves to be quoted, and it's Judge Simons of
2 the Court of Appeals, a Republican judge from
3 upstate New York, and he states in a decision
4 writing for the Court of Appeals where -
5 upholds the suppression of evidence, upholds
6 Section 12 of Article I, and he says -- first,
7 I'm sorry, before I read Judge Simons, just
8 reading from a decision of the Court of
9 Appeals -- I'm sorry from the U.S. Supreme Court
10 which says, a, quote, "'good faith' ", unquote,
11 "exception on the other hand will tend to put a
12 premium on police ignorance of the law."
13 Unquote.
14 Just very briefly from Judge
15 Simons. He says, "The exclusionary rule's
16 purpose is completely frustrated. A premium is
17 placed on the illegal police action, and a
18 positive incentive is provided to others to
19 engage in civil, less lawless acts in the
20 future." A good Republican judge on the Court
21 of Appeals.
22 Thank you, Mr. President.
23 I vote in the negative.
5096
1 ACTING PRESIDENT KUHL: Senator
2 Leichter will be recorded in the negative.
3 Continue the slow roll call.
4 THE SECRETARY: Senator Levy.
5 SENATOR LEVY: Aye.
6 THE SECRETARY: Senator Libous.
7 SENATOR LIBOUS: Aye.
8 THE SECRETARY: Senator Maltese.
9 SENATOR MALTESE: Aye.
10 THE SECRETARY: Senator
11 Marcellino.
12 SENATOR MARCELLINO: Yes.
13 THE SECRETARY: Senator Marchi.
14 SENATOR MARCHI: Aye.
15 THE SECRETARY: Senator
16 Markowitz.
17 (There was no response.)
18 Senator Maziarz.
19 SENATOR MAZIARZ: Aye.
20 THE SECRETARY: Senator Mendez.
21 SENATOR MENDEZ: No.
22 THE SECRETARY: Senator
23 Montgomery.
5097
1 ACTING PRESIDENT KUHL: Senator
2 Montgomery to explain her vote.
3 Senator Markowitz, would you
4 please take your seat.
5 SENATOR MONTGOMERY: Thank you,
6 Mr. President.
7 I look at this legislation, and
8 it's particularly threatening to certain of my
9 constituents as I interpret what I read here,
10 especially the part that says that a police
11 officer -
12 ACTING PRESIDENT KUHL: Senator
13 Montgomery, excuse me just a minute.
14 It's extremely noisy in here.
15 SENATOR MONTGOMERY: Thank you,
16 Mr. President.
17 ACTING PRESIDENT KUHL: Thank
18 you.
19 Senator Montgomery.
20 SENATOR MONTGOMERY: A police
21 officer may approach a person in a public place
22 located within the geographic area of such
23 officer's employment when he has an objective,
5098
1 credible reason not necessarily indicative of
2 criminality, and to the full extent permissible
3 under the Constitution may ask such questions
4 and take such other actions as the officer deems
5 appropriate.
6 So there was a young man in my
7 district just a week ago who was harassed by the
8 police as he was walking down one of the tree
9 lined streets in my district that is part of the
10 historically landmarked area. This youngster
11 was walking from high school and was fixing the
12 buckle on his belt, was stopped by the police
13 and essentially frisked and harassed by the
14 police for no apparent reason.
15 This law seems to put in statute
16 the right of that police officer to do that kind
17 of stopping and harassing of young African
18 American males, in particular, even more than
19 they do already. So I think this is a
20 particularly ominous piece of legislation, and I
21 would hope that all of my colleagues would vote
22 against it as I am because we can not create
23 this kind of police state atmosphere in the
5099
1 communities within our districts in the state.
2 So, Mr. President, I'm voting no.
3 ACTING PRESIDENT KUHL: Senator
4 Montgomery will be recorded in the negative.
5 Continue the slow roll.
6 THE SECRETARY: Senator Nanula
7 voting in the negative earlier today.
8 Senator Nozzolio.
9 SENATOR NOZZOLIO: Aye.
10 THE SECRETARY: Senator Onorato.
11 SENATOR ONORATO: Aye.
12 THE SECRETARY: Senator
13 Oppenheimer.
14 SENATOR OPPENHEIMER: Aye.
15 THE SECRETARY: Senator Padavan.
16 SENATOR PADAVAN: Yes.
17 THE SECRETARY: Senator Paterson.
18 SENATOR PATERSON: No.
19 THE SECRETARY: Senator Present.
20 SENATOR PRESENT: Yes.
21 THE SECRETARY: Senator Rath.
22 SENATOR RATH: Yes.
23 THE SECRETARY: Senator Saland.
5100
1 SENATOR SALAND: Aye.
2 THE SECRETARY: Senator Santiago
3 recorded in the negative earlier today.
4 Senator Seabrook.
5 SENATOR SEABROOK: No.
6 THE SECRETARY: Senator Sears.
7 SENATOR SEARS: Aye.
8 THE SECRETARY: Senator Seward.
9 SENATOR SEWARD: Aye.
10 THE SECRETARY: Senator Skelos.
11 (There was no response.)
12 Senator Smith.
13 SENATOR SMITH: No.
14 THE SECRETARY: Senator Spano.
15 SENATOR SPANO: No.
16 THE SECRETARY: Senator
17 Stachowski.
18 SENATOR STACHOWSKI: Yes.
19 THE SECRETARY: Senator Stafford
20 excused.
21 Senator Stavisky excused.
22 Senator Trunzo.
23 SENATOR TRUNZO: Yes.
5101
1 THE SECRETARY: Senator Tully.
2 SENATOR TULLY: Aye.
3 THE SECRETARY: Senator Velella.
4 SENATOR VELELLA: Yes.
5 THE SECRETARY: Senator Waldon.
6 Volker, I'm sorry.
7 Senator Volker.
8 SENATOR VOLKER: Yes.
9 THE SECRETARY: Senator Waldon.
10 SENATOR WALDON: No.
11 THE SECRETARY: Senator Wright.
12 SENATOR WRIGHT: Aye.
13 ACTING PRESIDENT KUHL: Secretary
14 will call the absentees.
15 THE SECRETARY: Senator Babbush.
16 (There was no response.)
17 Senator DeFrancisco.
18 SENATOR DeFRANCISCO: No.
19 THE SECRETARY: Senator DiCarlo.
20 SENATOR DiCARLO: Aye.
21 THE SECRETARY: Senator Goodman.
22 (There was no response.)
23 Senator Hannon.
5102
1 SENATOR HANNON: Yes.
2 THE SECRETARY: Senator
3 Hoffmann.
4 (There was no response.)
5 Senator Kruger.
6 SENATOR KRUGER: No.
7 THE SECRETARY: Senator Leibell.
8 SENATOR LEIBELL: Aye.
9 THE SECRETARY: Senator
10 Markowitz.
11 SENATOR MARKOWITZ: No.
12 SENATOR PATERSON: Mr.
13 President.
14 ACTING PRESIDENT KUHL: Senator
15 Paterson.
16 SENATOR PATERSON: Mr. President,
17 it's taking a long time to count these votes,
18 don't you think?
19 ACTING PRESIDENT KUHL: You know,
20 I've been trying to educate the clerk on
21 counting, and we were trying to do it on fingers
22 and hands, and we ran out once. Right now we're
23 still trying to calculate. We still got a
5103
1 couple of members to call. We'll be with you in
2 just a minute, Senator Paterson. I may have to
3 take my shoes off to get to my toes, and there's
4 a serious objection up here at the desk about me
5 removing my shoes. But we'll be just a minute.
6 SENATOR GOLD: Mr. President.
7 ACTING PRESIDENT KUHL: Senator
8 Gold, why do you rise?
9 SENATOR GOLD: Well, because
10 there's an unfairness. I mean if Senator Tully
11 was up there, and he's used to counting higher
12 on a golf course than you are, you know, he
13 wouldn't need so many toes.
14 THE SECRETARY: Senator Skelos.
15 SENATOR SKELOS: Yes.
16 ACTING PRESIDENT KUHL: Announce
17 the results.
18 THE SECRETARY: Ayes 36, nays
19 18.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 Secretary will continue to call
23 the controversial calendar, the nine remaining
5104
1 bills.
2 THE SECRETARY: Calendar Number
3 636, by Senator Hoblock, Senate Print 6736, an
4 act to amend the Transportation Law, in relation
5 to regulation of motor buses.
6 ACTING PRESIDENT KUHL: Secretary
7 will read the last section.
8 THE SECRETARY: Section 2. This
9 act shall take effect immediately.
10 ACTING PRESIDENT KUHL: Call the
11 roll.
12 (The Secretary called the roll. )
13 THE SECRETARY: Ayes 57.
14 ACTING PRESIDENT KUHL: The
15 bill's passed.
16 SENATOR GOLD: Hold on.
17 ACTING PRESIDENT KUHL: Senator
18 Gold.
19 SENATOR GOLD: Yeah. No, Mr.
20 President. Mr. President, I just want to ask
21 the sponsor a quick question of explanation.
22 ACTING PRESIDENT KUHL: Withdraw
23 the roll call. We're now -- or we can -- motion
5105
1 is to reconsider the vote by which the bill
2 passed the house. Secretary will call the roll
3 on reconsideration.
4 (The Secretary called the roll on
5 reconsideration. )
6 THE SECRETARY: Ayes 57.
7 ACTING PRESIDENT KUHL: Bill is
8 before the house. The Chair recognizes Senator
9 Gold. Senator Hoblock, will you respond to a
10 question?
11 SENATOR HOBLOCK: Yes, Mr.
12 President.
13 ACTING PRESIDENT KUHL: Senator
14 yields.
15 SENATOR GOLD: Yeah, Senator. I
16 know it's late but, very briefly, could you just
17 tell us why we are making this exemption, and I
18 understand that there are other places that have
19 made the exemption but why are we making the
20 exemption? If these regulations went in for
21 safety reasons, then why, if we do your bill
22 which I believe is going to conform to what
23 other people have done, why are we doing it if
5106
1 the original regulations were for the safety of
2 people?
3 SENATOR HOBLOCK: Well, the
4 current exemption applies to operation in a city
5 or unincorporated village. We're adding a
6 county or the jurisdictional area of a
7 transportation authority because what we've been
8 told now is that these motor buses go to a line
9 at the end of the city and, you know, their area
10 may be across the county line but they can't
11 go. What this does is, it gives the
12 transportation authority more flexibility with
13 their bus routes now.
14 SENATOR GOLD: Mr. President,
15 will the Senator yield to one more question?
16 ACTING PRESIDENT KUHL: Senator
17 Hoblock, do you continue to yield?
18 SENATOR HOBLOCK: Yes.
19 ACTING PRESIDENT KUHL: Senator
20 yields.
21 SENATOR GOLD: Senator, I
22 understand what you're saying in terms of if
23 there are places -- and I believe the city of
5107
1 New York is one -- where the regulations do not
2 apply.
3 SENATOR HOBLOCK: Right.
4 SENATOR GOLD: But the question I
5 had, and I know there are other Senators on both
6 sides that have it, and it's just a question to
7 explain. We could conform everybody by making
8 the city of New York and others abide by the
9 standards and that would be a conforming
10 factor.
11 In conforming it the way you're
12 doing it, we are apparently taking out some
13 protection. Now, the answer that would make me
14 feel comfortable is that maybe the protections
15 aren't needed because they've done it another
16 way, et cetera, et cetera, but if it's just
17 conforming it, why do we want to conform it if
18 we're taking away some protections to riders?
19 SENATOR HOBLOCK: Well, the
20 question is whether or not you are taking away
21 protection. What's happened is that, due to
22 federal cutbacks, many of these authorities had
23 to cut routes. They just did it here locally in
5108
1 the tri-county area. Here in the Capital
2 District crossing county lines is like less than
3 half across the city of New York and larger
4 cities in this state, and in order to become a
5 little bit more efficient and to economize, this
6 is what management would like. This is what the
7 drivers would like so they could be a little bit
8 more flexible in operating within that area.
9 Now, keep in mind it's within a
10 county or the jurisdictional area of the
11 authority.
12 ACTING PRESIDENT KUHL: Secretary
13 will read the last section.
14 THE SECRETARY: Section 2. This
15 act shall take effect immediately.
16 ACTING PRESIDENT KUHL: Call the
17 roll.
18 (The Secretary called the roll. )
19 THE SECRETARY: Ayes 57.
20 ACTING PRESIDENT KUHL: The bill
21 is passed.
22 THE SECRETARY: Calendar Number
23 651, by Senator Holland, Senate Print 5789A, an
5109
1 act to amend the General Municipal Law, in
2 relation to indexing the interest rate on
3 judgments.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the last section.
6 SENATOR LEICHTER: Explanation.
7 ACTING PRESIDENT KUHL: Senator
8 Holland for an explanation.
9 SENATOR HOLLAND: The Senator
10 knows that the General Municipal Law says that
11 now interest can be no more -- shall not exceed
12 9 percentum on judgments against municipalities.
13 This bill says that it will be the prime
14 interest rate but no more than 9 percent.
15 In the past, up until 1982, the
16 interest rate was 3 percent when the prime
17 interest rate was running at 13 percent or 20
18 percent. So this Legislature raised it to 9
19 percent or not to exceed 9 percent. Therefore,
20 the judges are setting it always at 9 percent
21 and, if we say the prime interest rate, the
22 taxpayers of the individual municipalities will
23 save some money.
5110
1 SENATOR LEICHTER: Mr. President.
2 ACTING PRESIDENT KUHL: Senator
3 Leichter.
4 SENATOR LEICHTER: Mr. President,
5 yes, if Senator Holland would yield, please.
6 ACTING PRESIDENT KUHL: Senator
7 Holland, do you yield to Senator Leichter? The
8 Senator yields.
9 SENATOR LEICHTER: Senator, just
10 to explore the technical language of your bill,
11 you refer to the "Federal Reserve prime lending
12 rate". What is the "Federal Reserve prime
13 lending rate?" I know what the prime rate is
14 but I don't think I know what the Federal
15 Reserve prime lending rate is.
16 SENATOR HOLLAND: I can not tell
17 you exactly, but the -- I can't tell you.
18 SENATOR LEICHTER: Well, may I
19 respectfully suggest that you lay the bill aside
20 until tomorrow, take a look. I think there's a
21 prime rate. I do not believe -- I may be wrong,
22 but I don't believe there's such a thing as a
23 "Federal Reserve prime lending rate". I'll ask
5111
1 the distinguished chairman of the Banking
2 Committee if he knows any such technical gauge
3 or guide of a rate of interest.
4 ACTING PRESIDENT KUHL: Senator
5 Leichter, you have the floor. Senator Farley,
6 under the rule of the house, currently cannot
7 yield to a question because he hasn't spoken on
8 the bill, and I'm a little bit reluctant to bend
9 the rules for the sake of this.
10 Are you asking Senator Holland to
11 lay the bill aside, Senator Leichter?
12 SENATOR LEICHTER: I'm just
13 suggesting that we get, since Senator Holland
14 didn't seem to have an answer to it -
15 SENATOR HOLLAND: I am told that
16 the Federal Reserve sets their own rate and that
17 is what the bill is referring to.
18 SENATOR LEICHTER: Mr. President,
19 if Senator Holland will continue to yield.
20 ACTING PRESIDENT KUHL: Senator
21 Holland, you continue to yield? Senator
22 continues to yield.
23 SENATOR LEICHTER: The Federal
5112
1 Reserve has numerous rates. It has the discount
2 rate; it has the overnight lending rate, and so
3 on. I don't believe that there is anything such
4 as the Federal Reserve prime rate. If there is
5 anybody in the house that says, yes, there is
6 this and this, I'll certainly accept it, but my
7 belief or my -
8 SENATOR HOLLAND: I know what you
9 want. You want the other 9 percent changed also
10 but I will -- I will lay it aside until tomorrow
11 at your suggestion.
12 ACTING PRESIDENT KUHL: Bill is
13 laid aside at the request of the sponsor.
14 SENATOR LEICHTER: I will
15 appreciate it.
16 ACTING PRESIDENT KUHL: Bill is
17 laid aside at the request of the sponsor.
18 Secretary will continue to call
19 the controversial calendar.
20 THE SECRETARY: Calendar Number
21 671, by Senator Holland, Senate Print 201, an
22 act to amend the Vehicle and Traffic Law, in
23 relation to optional equipment.
5113
1 SENATOR DOLLINGER: Explanation.
2 ACTING PRESIDENT KUHL:
3 Explanation has been asked for, Senator
4 Holland.
5 SENATOR HOLLAND: This was
6 suggested by a senior citizens group in
7 Hillburn, New York, where they have buses that
8 pick them up and bring them to the Senior
9 Citizens Center. Because the senior citizens
10 are not as agile, do not hear as well, may not
11 see as well, their suggestion was -- and I agree
12 with their suggestion -- that localities should
13 have the option of having -- of putting the same
14 red light system on the senior citizen buses
15 that are on school buses so that drivers would
16 stop behind the senior citizens' buses, and
17 that's what the bill does.
18 ACTING PRESIDENT KUHL: Senator
19 Dollinger? Senator Stachowski? Senator
20 Leichter?
21 SENATOR DOLLINGER: Mr.
22 President.
23 ACTING PRESIDENT KUHL: Senator
5114
1 Dollinger.
2 SENATOR DOLLINGER: Would Senator
3 Holland yield to a question?
4 ACTING PRESIDENT KUHL: Senator
5 Holland, will you yield to Senator Dollinger?
6 SENATOR HOLLAND: Yes.
7 ACTING PRESIDENT KUHL: Senator
8 yields.
9 SENATOR DOLLINGER: In this bill,
10 is there any distinctive marking on this bus to
11 know -- to trigger the responsibility to stop as
12 you approach it? With a school bus, they're
13 big, they're yellow, they're easily
14 identifiable. I know that in my -- in my home
15 town we have a bus that transports senior
16 citizens that, frankly, looks like just about
17 any other kind of van, and it might be very
18 difficult to distinguish them visually as you
19 approach. You see flashing red lights on a gray
20 pick-up truck or a gray van, you wouldn't
21 necessarily conclude that that's a school bus or
22 the equivalent of a school bus, and it triggers
23 your obligation to stop and not pass it in the
5115
1 oncoming direction.
2 SENATOR HOLLAND: Same type of
3 light system, Senator, that's on the school
4 buses.
5 SENATOR DOLLINGER: Right, but is
6 there any provision in the bill that would
7 require different markings on the bus so you'd
8 be able to recognize what the bus was? The
9 advantage of a school bus is, I think almost
10 everywhere in this state they're painted yellow,
11 they say "school" on it.
12 I'm just concerned that a driver
13 approaching would -- would not, I think, as many
14 drivers do, he sees the yellow school bus, he
15 sees the light flashing and he immediately
16 concludes he's got to stop. You see the light
17 flashing but don't see a yellow school bus,
18 would you come to the same conclusion?
19 SENATOR HOLLAND: That's what the
20 bill says, Senator, have the same flashing red
21 lights as a school bus, and I hope and believe
22 that everyone in the state understands that you
23 must stop behind those red lights.
5116
1 SENATOR DOLLINGER: O.K. Again
2 just for perhaps if this goes to conference or
3 if this comes to the Senate again, I would just
4 think it would be a stronger bill if there were
5 some identifiable markings on the bus so that
6 the whole driving public who is so used to
7 stopping when they're big and yellow when the
8 lights go on, would be able to make the same
9 conclusion.
10 Otherwise, you may have a hollow
11 safety protection for the elderly because the
12 voter or the driver just doesn't recognize the
13 fact that this is the equivalent of a school bus
14 for purposes of stopping.
15 ACTING PRESIDENT KUHL: Senator
16 Stachowski.
17 SENATOR HOLLAND: Let me just
18 finish that if I could, Mr. President.
19 The bill says that the
20 regulations shall be set up by the
21 Commissioner. Hopefully, that will cover your
22 concern.
23 ACTING PRESIDENT KUHL: Senator
5117
1 Stachowski.
2 SENATOR STACHOWSKI: I don't know
3 if I want to ask a question.
4 I just want to maybe clarify that
5 this problem here is, and it's among the
6 transportation people also, is that all these
7 buses that different cities, different towns,
8 use to transport seniors are all different.
9 They're painted different. They look different
10 and when suddenly red lights start flashing on
11 them, I don't think that that alone is going to
12 have a driver awareness that, as Senator
13 Dollinger pointed out, the big yellow bus with
14 "school" on it and the arm that comes down and
15 then the red lights go on, that people are
16 acutely aware that that's a school bus and
17 they're prepared that they might have to stop
18 behind it, where this -- this will be a
19 different -- different kind of bus any place.
20 If you're a visitor in the town and all of a
21 sudden red lights go on a bus that's completely
22 foreign to you, and I don't know as it always -
23 is it mini-buses that they use to do seniors,
5118
1 large buses? Would even senior vans fall under
2 this? And then you'd have to wonder if the van
3 in front of you is going to start flashing red
4 lights.
5 I think the problem here is the
6 concern that there's no uniformity in the
7 vehicle used to transport seniors. I don't
8 think there's an argument on this side that we
9 don't want to provide the same protection or the
10 people that are asking the question, whether
11 that protection should be provided for seniors
12 that are being transported, but isn't there a
13 danger if we have multi-colored, multi
14 dimensional vehicles with flashing red lights
15 and what's going to happen to all the people
16 that are driving and either one realizes that
17 it's going to happen, the other one is from out
18 of town and he probably piles into the car in
19 front of him because he's not ready for that
20 kind of bus to suddenly flash red lights?
21 I think there's a little bit of a
22 problem here and that's just what we're trying
23 to get at, and that's the only question we had
5119
1 is how do we get around this and the fact that
2 the Department is going to come up with the
3 rules, I don't know that that alleviates that
4 problem.
5 ACTING PRESIDENT KUHL: Senator
6 Holland, would you like to address the issue and
7 close debate?
8 SENATOR HOLLAND: Well, again,
9 the Commissioner -- the bill says the regulation
10 is prescribed by the Commissioner. The
11 Commissioner hopefully would solve those
12 problems that you're looking at, and again I
13 certainly believe and hope that everyone in this
14 state and for that fact, other states know that
15 when you come up upon the rear part of a bus
16 with red lights flashing that you stop.
17 ACTING PRESIDENT KUHL: Any other
18 Senator wishing to speak on the bill?
19 Secretary will read the last
20 section.
21 THE SECRETARY: Section 4. This
22 act shall take effect on the 1st day of
23 September.
5120
1 SENATOR LEICHTER: Well, just
2 very briefly, I just want to say to Senator
3 Holland, as I read this bill, this bill would
4 apply to any bus that could transport somebody
5 60 years of age. Doesn't say exclusively, so
6 any bus -- I'm over 60 years. I get on any bus.
7 That bus going to have to have flashing red
8 lights? Because if you'll see at the beginning
9 of the section, it says, any omnibus having seat
10 capacity more than *** and used exclusively and
11 then it says to trans... exclusively, and then
12 it lists various people, but then you go on to
13 say *** "and" after the listing of the people so
14 the "exclusive" as I read it no longer applies
15 to the change that you're making, so it would
16 seem to be that any bus in the state of New York
17 since it could take somebody who is 60 years of
18 age or older, will have to have flashing red
19 lights.
20 ACTING PRESIDENT KUHL: Secretary
21 will read the last section.
22 THE SECRETARY: Section 4. This
23 act shall take effect on the 1st day of
5121
1 September.
2 ACTING PRESIDENT KUHL: Call the
3 roll.
4 (The Secretary called the roll. )
5 ACTING PRESIDENT KUHL: Announce
6 the results when tabulated.
7 THE SECRETARY: Ayes 56, nays
8 one, Senator Leichter recorded in the negative.
9 ACTING PRESIDENT KUHL: The bill
10 is passed.
11 Secretary will continue to call
12 the controversial calendar.
13 THE SECRETARY: Calendar Number
14 686, by Senator Maziarz, Senate Print 6893, an
15 act to amend the Highway Law, in relation to
16 designating a portion of the state highway
17 system the Senator Ralph Quattrociocchi Memorial
18 highway.
19 ACTING PRESIDENT KUHL: Senator
20 Maziarz, on the bill.
21 SENATOR MAZIARZ: Thank you, Mr.
22 President.
23 Mr. President, this legislation
5122
1 designates State Route 531 Extension which runs
2 in the western portion of Monroe County as the
3 Ralph Quattrociocchi Memorial Highway.
4 Mr. President, shortly after my
5 election to this great institution, I sat down
6 with Senator Ralph Quattrociocchi who had
7 several years ago represented the west side of
8 Monroe County, and Ralph Quattrociocchi provided
9 me in probably the three or four hours that we
10 were together, a great education, an education
11 not only about western Monroe County, Monroe
12 County in general, but also about this
13 institution, and the last thing that Ralph
14 Quattrociocchi said to me was that he not only
15 loved his years of service here, but he loved
16 the New York State Senate as an institution. He
17 loved the individuals that he served with.
18 I was very fortunate about a
19 month before Ralph unexpectedly passed away to
20 have run into him unexpectedly. Ironically
21 enough, it was at a volunteer fire company
22 function. Ralph Q, as he was more affection
23 ately known on the west side of Monroe County,
5123
1 was still out there, still attending the
2 volunteer fire company functions and the church
3 functions and the things that he did so well
4 when he represented western Monroe in this great
5 institution; and he told me then, we had an
6 occasion, as I said, unexpectedly to sit down
7 and to talk for about an hour. He reiterated
8 all those things that he told me about this
9 great house of the Legislature, and he mentioned
10 several names, names on both sides of the aisle,
11 names like George Onorato and Bill Stachowski
12 that he worked with, that worked with him, and I
13 know after speaking to Ralph's wife after he
14 passed away, the great love that he had for this
15 institution, and I think it's only fitting that
16 one project that Senator Quattrociocchi worked
17 on almost his entire career in this house was
18 the extension of Route 531 on the west side of
19 Monroe County, and that road extension has
20 opened up almost all of western Monroe and
21 hopefully will in the future go further west and
22 open up more commerce and business and provide
23 more jobs to people in western Monroe County and
5124
1 provide firms like Kodak and Xerox and Bausch &
2 Lomb areas for expansion on the west side.
3 I know that, when I asked Senator
4 Quattrociocchi the last time I spoke to him,
5 when I asked him what he considered to be his
6 greatest accomplishment during his tenure in the
7 New York State Legislature, he mentioned the
8 extension of Route 531 and he said to me, he
9 said, "In fact, I will tell you that the
10 greatest accomplishment that I had in all my
11 years of public service, both in the county
12 legislature and in the state legislature was the
13 extension of 531" because the extension of 531
14 provided -- opened up western Monroe County to
15 commerce, development and jobs, and that's what
16 Ralph Quattrociocchi was all about.
17 I know that Senator
18 Quattrociocchi or Ralph Q, as he was more
19 affectionately known, had a reputation on the
20 west side of Monroe County for attending each
21 and every event regardless of how small or how
22 large that event would be and as I know some of
23 the people who served with him in this body know
5125
1 full well, that we're certainly going to miss
2 him. The people of Monroe County are going to
3 miss him, and I know that I as a -- as a new
4 legislator here am certainly going to miss the
5 counsel and advice that he provided to me, and I
6 think it's only a fitting tribute, Mr.
7 President, that we adopt this bill today, and I
8 would also invite all of my colleagues in the
9 Legislature to sign onto this bill as
10 co-sponsors for a very worthy tribute to a very
11 worthy colleague here.
12 Thank you, Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Dollinger.
15 SENATOR DOLLINGER: On the bill,
16 Mr. President.
17 I appreciate Senator Maziarz'
18 warm words about Ralph Quattrociocchi. I knew
19 Ralph for a long time, and I shared a ballot
20 with him on three separate occasions; but I just
21 rise because I -- I can't let this moment go
22 without talking about perhaps what, in my
23 judgment, might have been the ultimate tribute
5126
1 to Ralph Quattrociocchi.
2 I don't believe, and I went back
3 through my records, I believe Ralph Quattro
4 ciocchi passed one bill in this house and I, for
5 one, can't believe that in the eight years he
6 spent here, he only had one good idea, and I'm
7 disappointed, I guess, that we have a system
8 that somehow says all the ideas, all the names
9 on bills are on the Republican side and, for
10 some reason, even a bill like this doesn't in
11 its first distribution get the people who shared
12 many a meal with him on this side of the aisle
13 -- I mean George Onorato, Bill Stachowski, Fred
14 Ohrenstein -- who shared many a meal with him,
15 and I guess I share Senator Maziarz' tribute to
16 Ralph, and he certainly deserves to have this
17 highway named after him, but perhaps the most
18 fitting tribute we could give Ralph
19 Quattrociocchi is to forever put away the notion
20 that somehow -- and I believe this is equally
21 appropriate in the Assembly -- that the notion
22 that somehow all the bills have to have Majority
23 names on them, don't get circulated among the
5127
1 Minority, is the wrong idea.
2 I know Senator Velella has talked
3 to me a number of times that this is extremely
4 prevalent in the Assembly. I don't condone it;
5 in fact, I condemn it. It makes silly sense
6 over there; it makes no more sense over here,
7 and my regret is that, frankly, the names of
8 those who shared many a meal with him over here
9 are on not on this bill in the first instance.
10 I don't fault the sponsor. I
11 think, unfortunately perhaps, sometimes our
12 staffs and sometimes through inadvertence,
13 sometimes because it's the end of the year and
14 we want to get this stuff done, we forget those
15 courtesies, but it would seem to me that we
16 would all be paying tribute to Ralph
17 Quattrociocchi by abandoning that silly notion
18 forever and getting used to the notion that we
19 can all work together and create the legislation
20 that will benefit the people of this state and
21 remember a man who made a contribution not only
22 to New York State but to the people in the town
23 of Greece that I represent, and all of western
5128
1 New York State, by pushing for Route 531.
2 ACTING PRESIDENT KUHL: The Chair
3 would just note that, even though the sponsor
4 has indicated he's willing to accept, that this
5 is not something that the desk can do directly.
6 You'll have to file the co-sponsorship form and
7 get the sponsor's signature on it. So the
8 information has to be submitted to Senator
9 Maziarz.
10 The Secretary will read the last
11 section.
12 THE SECRETARY: Section 4. This
13 act shall take effect immediately.
14 ACTING PRESIDENT KUHL: Call the
15 roll.
16 (The Secretary called the roll. )
17 THE SECRETARY: Ayes 57.
18 ACTING PRESIDENT KUHL: The bill
19 is passed unanimously.
20 Secretary will continue to call
21 the controversial calendar.
22 THE SECRETARY: Calendar Number
23 692, by Senator Libous, Senate Print 4472, an
5129
1 act to amend the Penal Law, in relation to
2 increasing the penalties for repeat convictions
3 of assault.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the last section.
6 THE SECRETARY: Section 4. This
7 act shall take effect on the 1st day of
8 November.
9 ACTING PRESIDENT KUHL: Call the
10 roll.
11 (The Secretary called the roll. )
12 THE SECRETARY: Ayes 57.
13 ACTING PRESIDENT KUHL: The bill
14 is passed.
15 THE SECRETARY: Calendar Number
16 743, by Senator Maltese, Senate Print 490, an
17 act to amend the Public Authorities Law, in
18 relation to providing for free passage for
19 active duty military personnel.
20 SENATOR LEICHTER: Explanation.
21 ACTING PRESIDENT KUHL: Senator
22 Maltese, an explanation of Calendar Number 743
23 has been asked for by Senator Leichter.
5130
1 SENATOR MALTESE: Mr. President,
2 as the bill indicates, this would grant free
3 passage over bridges and tunnels operated by the
4 Triborough Bridge and Tunnel Authority to
5 servicemen and servicewomen stationed in New
6 York City. The bridges and tunnels under the
7 jurisdiction of the Authority are the Triboro
8 Bridge, Throgs Neck Bridge, Verrazano Narrows
9 Bridge, Bronx Whitestone Bridge, Cross Bay
10 Veterans Memorial Bridge, Henry Hudson Bridge,
11 Marine Parkway Gil Hodges Memorial Bridge,
12 Brooklyn Battery Tunnel, Queens Midtown Tunnel,
13 and the fare is $3.50.
14 There are precedents for
15 discounted fares in the Public Authorities Law
16 for the Verrazano Narrows Bridge, the Cross Bay
17 Veterans Memorial Bridge and the Marine Parkway
18 Gil Hodges Bridge. This bill was originally
19 requested by the commander of the Atlantic
20 Fleet, and there are other jurisdictions, other
21 states that provide for free transportation for
22 servicemen, active duty military personnel.
23 SENATOR LEICHTER: Mr. President.
5131
1 ACTING PRESIDENT KUHL: Senator
2 Leichter.
3 SENATOR LEICHTER: Senator
4 Maltese, I have a memorandum in opposition to a
5 somewhat similar bill by the MTA. I want to ask
6 you if you know of any opposition to this bill.
7 SENATOR MALTESE: I don't know of
8 any op... Mr. President, I don't know of any
9 opposition. The number that was given to us of
10 active duty personnel, seriously reduced by the
11 way, is approximately 15,000 active duty
12 personnel in the entire city of New York, so I
13 -- I don't think that too many people would be
14 availing themselves. They'd be -- they'd have
15 to be serving in New York City.
16 SENATOR LEICHTER: Mr. President,
17 on the bill.
18 I just wish to point out -
19 ACTING PRESIDENT KUHL: Senator
20 Leichter, on the bill.
21 SENATOR LEICHTER: -- that there
22 was a memorandum in opposition to a similar bill
23 by Senator Marchi which provided for toll-free
5132
1 passage over the Verrazano Narrows Bridge to
2 vehicles identified as belonging to members of
3 the armed forces or their dependents.
4 Excuse me, Senator Maltese. If
5 you'd yield just for one more question.
6 ACTING PRESIDENT KUHL: Senator
7 Maltese, do you yield?
8 SENATOR MALTESE: Yes.
9 ACTING PRESIDENT KUHL: Senator
10 yields.
11 SENATOR LEICHTER: Yes, I know
12 you read off a list of bridges. Is one of those
13 the Verrazano Bridge?
14 SENATOR MALTESE: Yes, it is.
15 SENATOR LEICHTER: All right.
16 Mr. President, I assume that the Authority would
17 also be in opposition to this bill, although I
18 must say this was -- I think this memo was -- I
19 can't really tell. It was FAXed to me, and I
20 can't tell what year this was, so it's
21 questionable that the MTA would not -- is not
22 opposing this bill, but, Mr. President -- yeah.
23 But, Mr. President, the reason
5133
1 stated in this memo, the reasons that concern me
2 is that we would be subsidizing the federal
3 government. Senator Maltese, I would love to
4 let all our veterans ride free, and I suggest
5 that the federal government, which has a lot
6 more money than we do, provide a means by which
7 those soldiers and sailors and other members of
8 the armed services, men and women who need to go
9 across bridges in the city of New York which is
10 under the jurisdiction of the Triborough Bridge
11 and Tunnel Authority, that it afford them the
12 means to do so without having to pay it out of
13 their own pocket, but I don't think we're in a
14 position to do it, much as I would like to help
15 the veterans. This is not veterans, much as I'd
16 like to help the members of the active armed
17 services, we just don't have the money. We're
18 short of money as it is, Senator. You know the
19 shortfall that the MTA has. You know the
20 decline in service in the Transit Authority in
21 your district and my district and throughout New
22 York.
23 Now, you're -- you're reducing
5134
1 the amount available to support transit by many
2 millions of dollars more. In this particular
3 memo, the Transit -- the MTA says that this will
4 cost millions of dollars per year. Maybe their
5 figures are wrong. It's certainly going to have
6 some cost. That cost ought to be borne by the
7 federal government.
8 As it is, New York State gets, I
9 think, short-changed by the federal government
10 and even more so under the Newt Gingrich
11 Congress. So why should we act like the big
12 shot and say, Here's money that we don't have?
13 I think it's well intentioned but fiscally
14 unwise, Senator.
15 ACTING PRESIDENT KUHL: Senator
16 Marchi.
17 SENATOR MARCHI: I'd like to
18 indicate my support for this legislation.
19 Military personnel especially -- well, we have a
20 situation, even on Staten Island, where there's
21 a split jurisdiction between the Brooklyn side
22 and the Staten Island side. For them to come
23 across it's a $7 hit. Now, a lot of families
5135
1 just can't afford that.
2 The mistake they made, and I've
3 impressed them, why didn't you exact this before
4 you came in? In California, in San Francisco,
5 they have that privilege of going back and forth
6 and they exacted that in negotiations when they
7 were coming in. We have considered their
8 presence a boon to the respective communities
9 wherever they are located, and to deny them
10 this, I mean they -- frankly, we're not -- I
11 don't know, maybe we ought to exempt admirals if
12 they have to pay or something, but really, I
13 don't see any justification for -- for doing
14 something that other communities have done
15 voluntarily in an attempt to induce the presence
16 of -- of the military, and they're paying a
17 heavy price. It's -- it's heavy duty and it's
18 costly to the military people. I know sometimes
19 when they've had a massive transfer of a naval
20 base to a southern port, they were relieved
21 because of the cost elements. They were very
22 happy where they were, but the costs are
23 aggravated when they're in a high expense, high
5136
1 cost area such as our own and where we can
2 facilitate that, this is not -- this is not a
3 heavy exaction. It is something that we would
4 voluntarily and happily have given to them had
5 it been made a condition for their arrival.
6 So I certainly support Senator
7 Maltese's legislation.
8 SENATOR LEICHTER: Mr.
9 President. Mr. President.
10 ACTING PRESIDENT KUHL: Senator
11 Leichter.
12 SENATOR LEICHTER: Would Senator
13 Marchi yield?
14 SENATOR MARCHI: Yes.
15 ACTING PRESIDENT KUHL: Senator
16 Marchi, do you yield?
17 SENATOR LEICHTER: Senator, I
18 appreciate your goodheartedness, but let me ask
19 you why don't you include allowing them the
20 right to ride free on the subway and the buses?
21 Where's the distinction? Why just the bridges?
22 How about those that have to ride the subway and
23 the buses? Why not say -
5137
1 SENATOR MARCHI: Well, that's
2 next year's bill, Senator, I'll introduce -
3 it's a heavy hit. I can see it graphically in
4 that area where you're crossing a bridge or
5 something that the tolls are very high. They're
6 much higher than a subway or a bus or anything
7 else, very high, and if you're a young enlisted
8 man with a family, boy, you're really, really
9 suffering.
10 ACTING PRESIDENT KUHL: Secretary
11 will read the last section.
12 THE SECRETARY: Section 2. 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 ACTING PRESIDENT KUHL: Announce
18 the results when tabulated.
19 THE SECRETARY: Those recorded in
20 the negative on Calendar Number 743 are Senators
21 Leichter and Paterson. Ayes 55, nays 2.
22 ACTING PRESIDENT KUHL: The bill
23 is passed.
5138
1 Continue to call the
2 controversial calendar.
3 THE SECRETARY: Calendar Number
4 755, by Senator Farley, Senate Print 6129, an
5 act to repeal Section 392-a of the General
6 Business Law, relating to the manufacture and
7 sale of used or second-hand hats.
8 ACTING PRESIDENT KUHL: Senator
9 Farley, the day you've been waiting for.
10 SENATOR FARLEY: Thank you, Mr.
11 President.
12 You know, this bill repeals an
13 archaic law, to say the least, that regulates
14 the advertising and sale of used hats.
15 Under the current law sellers of
16 used hats such as antique stores, used clothing
17 stores, charities such as the Salvation Army,
18 St. Vincent DePaul and Junior League's Next to
19 New store, and those sort of things, they must
20 post a sign that's visible from 30 feet and they
21 almost -- they also must announce that on this
22 sign that used hats or second-hand hats are sold
23 at this store, and every hat must be permanently
5139
1 labeled as such, and a violation of this is a
2 misdemeanor, and I don't want Bishop Hubbard or
3 anybody else to go to jail because there isn't a
4 sign posted outside the St. Vincent DePaul
5 store, and this law when it was enacted in 1933,
6 the consumers were potentially defrauded because
7 the hats were refelted, and there may have been
8 some lice in them, I don't know, and they were
9 sold as new to unsuspecting customers.
10 Today, however, fortunately, is
11 not 1930 and many small businesses and charities
12 are at risk because they are unaware of the
13 law. I haven't seen one of those signs in my
14 whole lifetime. Enforcement of this law would
15 lead to higher cost. We don't have a hat police
16 any more, and incidentally I've contacted the
17 Retail Council, the Millinery Information
18 Institute, and neither of them have any
19 objection to repealing this law, and the bill is
20 carried in the Assembly by the Majority Leader,
21 Mr. Bragman, who thinks it's essential that we
22 repeal this law.
23 Are there any questions?
5140
1 ACTING PRESIDENT KUHL: Senator
2 Dollinger.
3 SENATOR DOLLINGER: Could they be
4 called second-head hats instead of second-hand
5 hats?
6 SENATOR FARLEY: Whatever you'd
7 like.
8 SENATOR DOLLINGER: Good. I'll
9 vote in favor.
10 ACTING PRESIDENT KUHL: Senator
11 Marchi.
12 SENATOR MARCHI: Would Senator
13 Farley yield?
14 ACTING PRESIDENT KUHL: Senator
15 Farley, do you yield to Senator Marchi?
16 SENATOR MARCHI: Do you have a
17 message of necessity from Bishop Hubbard?
18 SENATOR FARLEY: I'm sure that
19 Bishop Hubbard would have no objection to this
20 because I'm quite sure the St. Vincent DePaul
21 store has no sign out front.
22 SENATOR MARCHI: You've convinced
23 me.
5141
1 ACTING PRESIDENT KUHL: Any other
2 Senator wishing to speak on the bill?
3 The Secretary will read the last
4 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 57.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 THE SECRETARY: Calendar Number
14 761, by Senator Seward, Senate Print 6143, an
15 act to amend the Public Service Law, in relation
16 to cellular telephone services.
17 SENATOR PATERSON: Explanation.
18 ACTING PRESIDENT KUHL: Lay the
19 bill aside.
20 SENATOR TULLY: Lay the bill
21 aside.
22 ACTING PRESIDENT KUHL: Lay the
23 bill aside for the day.
5142
1 Secretary will continue to call
2 the controversial calendar.
3 THE SECRETARY: Calendar Number
4 794, by Senator LaValle, Senate Print 7231, an
5 act to amend the Education Law, in relation to
6 requiring higher education report cards.
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 57.
15 ACTING PRESIDENT KUHL: The bill
16 is passed.
17 Senator Tully.
18 SENATOR TULLY: May we please
19 return to reports of standing committees?
20 ACTING PRESIDENT KUHL: Return to
21 reports of standing committees. There's a
22 report of the Senate Finance Committee at the
23 desk. I'll ask the Secretary to read.
5143
1 THE SECRETARY: Senator Stafford,
2 from the Committee on Finance, offers up the
3 following bill directly for third reading:
4 Senate Print 7542, by Senator
5 Volker, an act to provide heroism, valor and
6 outstanding performance awards to certain
7 members of the State Police and making an
8 appropriation therefor.
9 ACTING PRESIDENT KUHL: Without
10 objection, the report of the Senate Finance
11 Committee is received. The bill is reported
12 directly to third reading.
13 Secretary will read the title.
14 THE SECRETARY: Calendar Number
15 1218, by Senator Volker, Senate Print 7542, an
16 act to provide heroism, valor and outstanding
17 performance awards to members of the State
18 Police.
19 ACTING PRESIDENT KUHL: Senator
20 Tully.
21 SENATOR TULLY: Yes, Mr.
22 President. Are there messages of necessity and
23 appropriation at the desk?
5144
1 ACTING PRESIDENT KUHL: There is
2 a message of appropriation and necessity at the
3 desk, Senator Tully.
4 SENATOR TULLY: I move we accept
5 the message.
6 ACTING PRESIDENT KUHL: Motion is
7 to accept the message of necessity and
8 appropriation at the desk relative to Calendar
9 Number 1218. All those in favor signify by
10 saying aye.
11 (Response of "Aye.")
12 Opposed nay.
13 (There was no response. )
14 The message is accepted.
15 The Secretary will read the last
16 section.
17 THE SECRETARY: Section 3. This
18 act shall take effect April 1st.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll.)
22 THE SECRETARY: Ayes 57.
23 ACTING PRESIDENT KUHL: The bill
5145
1 is passed.
2 Senator Tully.
3 SENATOR TULLY: Is there any
4 housekeeping at the desk?
5 ACTING PRESIDENT KUHL: There is.
6 Like to return to motions and resolutions.
7 Chair recognizes Senator Farley.
8 SENATOR FARLEY: Thank you, Mr.
9 President. On behalf of Senator Marcellino, on
10 page 17, I offer the following amendments to
11 Calendar Number 449, Senate Print 6213, and I
12 ask that bill retain its place.
13 ACTING PRESIDENT KUHL:
14 Amendments to Calendar Number 449 are received
15 and adopted. Bill will retain its place on the
16 Third Reading Calendar.
17 Senator Farley.
18 SENATOR FARLEY: Also on behalf
19 of Senator Marcellino, on page 67, I offer the
20 following amendments to Calendar 1042, Senate
21 Print 7132, and I ask that that bill retain its
22 place on the Third Reading Calendar.
23 ACTING PRESIDENT KUHL:
5146
1 Amendments to Calendar Number 1042 are received
2 and adopted. Bill will retain its place on the
3 Third Reading Calendar.
4 Chair recognizes Senator
5 Paterson.
6 SENATOR PATERSON: Mr. President,
7 there was to be a legislative briefing for the
8 Minority after session today. But due to the
9 lateness of the hour, conflicting schedules and
10 the Fourth Amendment to the Constitution, that
11 briefing has been postponed to a date which I'm
12 not certain.
13 ACTING PRESIDENT KUHL: Thank
14 you, Senator Paterson, for that announcement.
15 Chair recognizes Senator Tully.
16 SENATOR TULLY: Thank you, Mr.
17 President.
18 There being no further business,
19 I move we adjourn until Wednesday, May 15th, at
20 at 11:00 a.m.
21 ACTING PRESIDENT KUHL: Without
22 objection, the Senate stands adjourned until
23 tomorrow Wednesday, May 15th, at 11:00 a.m.
5147
1 (Whereupon at 6:30 p.m., the
2 Senate adjourned.)
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