Regular Session - February 11, 1997

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         9                       ALBANY, NEW  YORK

        10                       February 11, 1997

        11                           3:00 p.m.

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        13

        14                       REGULAR SESSION

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        18       SENATOR NICHOLAS A. SPANO, Acting President

        19       STEPHEN F. SLOAN, Secretary

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                                                              714

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

         2                      ACTING PRESIDENT SPANO: The

         3       Senate will come to order.  All please rise for

         4       the Pledge of Allegiance to the Flag.

         5                      (The assemblage repeated the

         6       Pledge of Allegiance to the Flag.)

         7                      In the absence of clergy, may we

         8       please bow our heads in a moment of silence.

         9                      (A moment of silence was

        10       observed.)

        11                      Reading of the Journal.

        12                      THE SECRETARY: In Senate, Monday,

        13       February 10th.  The Senate met pursuant to

        14       adjournment.  The Journal of Friday, February

        15       7th, was read and approved.  On motion, Senate

        16       adjourned.

        17                      ACTING PRESIDENT SPANO:  Without

        18       objection, the Journal stands approved as read.

        19                      Presentation of petitions.

        20                      Messages from the Assembly.

        21                      Messages from the Governor.

        22                      Reports of standing committees.

        23       Secretary will read.

        24                      THE SECRETARY: Senator Wright,

        25       from the Committee on Alcoholism and Drug Abuse,







                                                              715

         1       reports the following bills:

         2                      Senate Print 45, by Senator Levy,

         3       an act to amend the Vehicle and Traffic Law, in

         4       relation to requiring school bus and other motor

         5       vehicle drivers;

         6                      338, by Senator Skelos, an act to

         7       amend the Vehicle and Traffic Law, in relation

         8       to increasing the period of time;

         9                      1517, by Senator Rath, an act to

        10       amend the Vehicle and Traffic Law, in relation

        11       to the admissibility of evidence;

        12                      1659, by Senator Wright, an act

        13       to amend the Vehicle and Traffic Law, in

        14       relation to creating the crime of aggravated

        15       driving while intoxicated;

        16                      1661, by Senator Wright, an act

        17       to amend the Vehicle and Traffic Law, in

        18       relation to extending the scope;

        19                      1878, by Senator Spano, an act to

        20       amend the Vehicle and Traffic Law, in relation

        21       to the criminal penalties.

        22                      Senator -

        23                      ACTING PRESIDENT SPANO:  All

        24       bills reported directly to third reading.

        25       Excuse me.







                                                              716

         1                      THE SECRETARY: Senator Alesi,

         2       from the Committee on Consumer Protection

         3       reports the following bills:

         4                      396, by Senator Volker, an act to

         5       amend the General Business Law, in relation to

         6       providing proprietary access;

         7                      689, by Senator Spano, an act to

         8       amend the General Business Law and the Executive

         9       Law;

        10                      779, by Senator Cook, an act to

        11       amend the General Business Law;

        12                      1301, by Senator Velella, an act

        13       to amend the General Business Law.

        14                      Senator Padavan, from the

        15       Committee on Cities, reports the following bill:

        16                      899, by Senator Cook, an act to

        17       amend the General City Law and others, in

        18       relation to appointment of alternative members.

        19                      Senator Maziarz, from the

        20       Committee on Aging, reports the following bills:

        21                      1548, by Senator Holland, an act

        22       to amend the Vehicle and Traffic Law;

        23                      1693, by Senator Farley, an act

        24       to amend the Real Property Tax Law.

        25                      Senator Rath, from the Committee







                                                              717

         1       on Local Government, reports:

         2                      Senate Print 27, by Senator

         3       Volker, an act to amend the General Business Law

         4       and others, in relation to requiring domestic

         5       steel components;

         6                      616, by Senator Cook, an act to

         7       amend the County Law, in relation to review and

         8       approval;

         9                      1099, by Senator Lack, an act to

        10       amend the Real Property Tax Law;

        11                      1131, by Senator Marcellino, an

        12       act to amend the General Municipal Law;

        13                      1168, by Senator Lack, an act in

        14       relation to the real property tax assessed;

        15                      1728, by Senator Skelos, an act

        16       to amend the General Municipal Law, in relation

        17       to the notice of claim;

        18                      2180, by Senator Rath, an act to

        19       amend Chapter 708 of the Laws of 1992, amending

        20       the General Municipal Law.

        21                      Senator Levy, from the Committee

        22       on Transportation, reports:

        23                      597, by Senator Levy, an act to

        24       amend the Vehicle and Traffic Law;

        25                      755, by Senator Goodman, an act







                                                              718

         1       to amend the Transportation Law, in relation to

         2       disclosure;

         3                      756, by Senator Goodman, an act

         4       to amend the Transportation Law, in relation to

         5       mandating;

         6                      757, by Senator Goodman, an act

         7       to amend the Transportation Law, in relation to

         8       increasing penalties;

         9                      914, by Senator Levy, an act to

        10       amend the Transportation Law, in relation to

        11       establishing;

        12                      916, by Senator Levy, an act to

        13       amend the Vehicle and Traffic Law, in relation

        14       to establishing;

        15                      1387, by Senator Velella,

        16       reported with amendments, an act to amend the

        17       Vehicle and Traffic Law.

        18                      Senator Saland, from the

        19       Committee on Children and Families, reports:

        20                      307, by Senator Skelos, an act to

        21       amend the Family Court Act and the Criminal

        22       Procedure Law;

        23                      2379, by Senator Saland, an act

        24       to amend the Criminal Procedure Law and others.

        25                      Senator Cook, from the Committee







                                                              719

         1       on Education, reports:

         2                      Senate Print 3666, by Senator

         3       Cook, an act to amend the Education Law;

         4                      1475, by Senator Present, an act

         5       to adjust certain state aid payments.

         6                      Senator Marcellino, from the

         7       Committee on Environmental Conservation,

         8       reports:

         9                      Senate Print 118, by Senator

        10       Stafford, an act to amend the Environmental

        11       Conservation Law;

        12                      150, by Senator Stafford, an act

        13       to amend the Environmental Conservation Law;

        14                      389, by Senator Stafford, an act

        15       to amend the Environmental Conservation Law; and

        16                      1388, by Senator Marcellino, an

        17       act to amend the Environmental Conservation

        18       Law.

        19                      All bills ordered directly for

        20       third reading.

        21                      ACTING PRESIDENT SPANO:  Without

        22       objection.

        23                      Reports of select committees.

        24                      Communications and reports from

        25       state officers.







                                                              720

         1                      Motions and resolutions.

         2                      Senator Farley.

         3                      SENATOR FARLEY:  Thank you, Mr.

         4       President.

         5                      On behalf of Senator Hannon,

         6       would you please place a sponsor's star on

         7       Calendar Number 70.

         8                      ACTING PRESIDENT SPANO:  Without

         9       objection.

        10                      Senator Maziarz.

        11                      SENATOR MAZIARZ:  Thank you, Mr.

        12       President.

        13                      On behalf of myself, would you

        14       please place a sponsor's star on Calendar Number

        15       125, Senate Bill Number 931.

        16                      ACTING PRESIDENT SPANO:  So

        17       ordered.

        18                      Senator Skelos.

        19                      SENATOR SKELOS:  Mr. President,

        20       there will be an immediate meeting of the Rules

        21       Committee in Room 332 of the Capitol.

        22                      ACTING PRESIDENT SPANO:

        23       Immediate meeting of the Rules Committee in Room

        24       332 of the Capitol.

        25                      Senator Skelos.







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         1                      SENATOR SKELOS:  Mr. President, I

         2       believe there's a privileged resolution at the

         3       desk sponsored by Senator Levy.  I ask that the

         4       title be read and move for its immediate

         5       adoption.

         6                      ACTING PRESIDENT SPANO:

         7       Secretary read the title of the resolution.

         8                      THE SECRETARY: By Senator Levy,

         9       Legislative Resolution, memorializing the life

        10       of Lawrence Johnson.

        11                      ACTING PRESIDENT SPANO:  Question

        12       is on the resolution.  All those in favor

        13       signify by saying aye.

        14                      (Response of "Aye.")

        15                      Opposed nay.

        16                      (There was no response. )

        17                      The resolution is adopted.

        18                      Senator Skelos.

        19                      SENATOR SKELOS:  Mr. President,

        20       at this time I move that we adopt the Resolution

        21       Calendar in its entirety except for Resolution

        22       Number 326.

        23                      ACTING PRESIDENT SPANO:  All

        24       those in favor of adopting the Resolution

        25       Calendar in the entirety with the exception of







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         1       326 signify by saying aye.

         2                      (Response of "Aye.")

         3                      Opposed nay.

         4                      (There was no response. )

         5                      The Resolution Calendar is

         6       adopted.

         7                      SENATOR SKELOS:  At this time, I

         8       ask that Resolution Number 326, by Senator

         9       Waldon, be read in its entirety.

        10                      ACTING PRESIDENT SPANO:

        11       Secretary will read.

        12                      THE SECRETARY: By Senator Waldon,

        13       Legislative Resolution Number 326, commending

        14       New York State's first African-American

        15       Legislator, Edward A. Johnson, in honor of Black

        16       History Month.

        17                      WHEREAS, the month of February is

        18       designated Black History Month; at this time

        19       African-Americans reflect on the trials,

        20       tribulations and victories of their past.  It is

        21       a time for African-Americans to appreciate their

        22       own, to acknowledge not only the exceptional

        23       individuals of their past who are recorded in

        24       American history books but to appreciate those

        25       whose names are more obscure, yet whose







                                                              723

         1       contributions are nonetheless significant; and

         2                      WHEREAS, Edward A. Johnson, the

         3       first African-American elected to the New York

         4       State Legislature, is one of those individuals

         5       who will be commended during Black History

         6       Month; and

         7                      WHEREAS, Edward Austin Johnson

         8       was born a slave in Raleigh, North Carolina, on

         9       November 23, 1860.  He received his early

        10       education from Nancy Walton, a free

        11       African-American woman who also taught many in

        12       the white aristocracy; and

        13                      WHEREAS, Edward A. Johnson began

        14       his formal education at the Washington High

        15       School for Negroes and, upon graduation in 1879,

        16       entered Atlanta University; there he began

        17       teaching in surrounding rural communities.  He

        18       remained in the Atlanta area after his

        19       graduation, serving first as a teacher, then as

        20       a principal in the city's public schools; and

        21                      WHEREAS, in 1885, Edward A.

        22       Johnson returned to Washington High School to

        23       serve as principal.  In 1890, he published A

        24       School History of the Negro Race in America from

        25       1619 to 1890 which, although brief and basic,







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         1       became widely used as text for black schools in

         2       North Carolina and Virginia; and

         3                      WHEREAS Edward A. Johnson became

         4       the first law graduate from the newly founded

         5       Shaw University and shortly thereafter became

         6       the dean of its law department;

         7                      Edward A. Johnson became

         8       interested in politics and he became an

         9       assistant to the district attorney in Raleigh

        10       and held this post until 1907 when he moved from

        11       Raleigh to New York City to practice law;

        12                      Edward A. Johnson became involved

        13       in politics when he arrived in New York.  He

        14       insisted that African-American candidates be

        15       nominated in those districts in which they

        16       constituted a majority of the voters.  He became

        17       a committeeman in the 19th Assembly District in

        18       Harlem and was elected to the Assembly as the

        19       state's first African-American legislator in

        20       1917; and

        21                      WHEREAS, Edward A. Johnson served

        22       one term in the Assembly where he guided three

        23       significant bills to law.  Two bills amended the

        24       Civil Rights Laws of New York State, one

        25       prohibiting discrimination in employment or







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         1       accommodation by publicly funded hospitals, the

         2       other guaranteeing all civil privileges in

         3       schools, restaurants, hotels and places of

         4       amusement.  The third established the first free

         5       labor employment bureau in the country to help

         6       curb discrimination in unemployment; and

         7                      WHEREAS, it is with sincere and

         8       heartfelt esteem that this legislative body

         9       celebrate the contributions that African

        10       Americans have made to our rich collective

        11       heritage and to commend the talented people who

        12       directed and guided them;

        13                      NOW, THEREFORE, BE IT RESOLVED

        14       that this legislative body pause in its

        15       deliberations to commend New York State's first

        16       African-American legislator, Edward a Johnson,

        17       in honor of Black History Month; and

        18                      BE IT FURTHER RESOLVED that a

        19       copy of this resolution, suitably engrossed, be

        20       transmitted to the black and Puerto Rican

        21       Legislative Caucus and the Schomburg Center for

        22       Research in Black Culture, Harlem, New York.

        23                      ACTING PRESIDENT SPANO:  Senator

        24       Waldon.

        25                      SENATOR WALDON:  Thank you, Mr.







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         1       President, my colleagues.  On the resolution.

         2                      First.  Let me invite each of you

         3       to join with me in supporting this resolution.

         4       In the spirit of what America is all about, I

         5       submitted it for your consideration.  When you

         6       think that Mr. Johnson's parents were born

         7       slaves and that he, too, was born in slavery,

         8       that his father's first name, fitting or unfit

         9       ting, was Columbus, although we think of what

        10       America is all about and who it is claimed

        11       discovered America, and how you can have the

        12       hope of, no matter your circumstances, no matter

        13       how meager they may be, that you can rise to

        14       whatever your talents will allow you to reach

        15       for and to actually achieve, then Edward A.

        16       Johnson, is certainly someone who realized the

        17       American dream.  When it was impossible for many

        18       African-Americans to go to school at all, not

        19       only did he attend the secondary schools but he

        20       attended college and taught after he had

        21       finished law school at a law school and became

        22       its dean.

        23                      We know of Booker T. Washington

        24       and his many accomplishments, but many of us in

        25       this chamber have never heard of Mr. Johnson,







                                                              727

         1       but he was someone who worked with Booker T. in

         2       terms of establishing entrepreneurial

         3       enterprises amongst and for African-Americans.

         4                      I must actually thank Jim Watson,

         5       on my staff, for having not only the zeal and

         6       the inclination and the sensitivity to discover

         7       who Edward A. Johnson is and was and what he

         8       means to African-Americans, Caribbean-Americans

         9       and, in fact, all Americans.

        10                      He came to this chamber when he

        11       was the only voice for people of color.  No one

        12       had preceded him.  No one had been as sensitive

        13       to his needs or his people's needs as he was at

        14       that time, and so I rise to champion his memory,

        15       and to challenge those of us who are from the

        16       African-American and Caribbean-American communi

        17       ties serving in Albany now, that we not forget

        18       that this man was able to pass laws that dealt

        19       with civil rights even in the early 1900s, that

        20       this man was able to rail against a system which

        21       had denied access prior to his ambition to run

        22       for office and to be successful and that, if we

        23       believe that America is what America is all

        24       about, that each of us can make a contribution,

        25       then the contributions we've made to date are







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         1       far too few and far too little because the

         2       system still denies some of us -- some of us who

         3       look like Senator Paterson and myself, some of

         4       us who look like Senator Montgomery and myself

         5        -- has denied us true access to all that this

         6       nation is about, but if we decide internally

         7       that enough is enough and we will move forward

         8       to make sure that there is truly a level playing

         9       field and equity, that in the memory and in the

        10       posture of Edward A. Johnson, we will achieve

        11       great things in the future.

        12                      I welcome you to support this

        13       resolution.  This is a time of the year that we

        14       celebrate Negro history or African-American

        15       history or however you wish to characterize it,

        16       bespeaking the contributions made by the people

        17       from Africa to this great nation, and surely

        18       Edward A. Johnson was a champion in that

        19       regard.

        20                      Thank you very much, Mr.

        21       President.  Thank you, my colleagues.

        22                      ACTING PRESIDENT SPANO:  Question

        23       is on the resolution. All those in favor signify

        24       by saying aye.

        25                      (Response of "Aye.")







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         1                      Opposed nay.

         2                      (There was no response. )

         3                      The resolution is adopted.

         4                      Senator Paterson.

         5                      SENATOR PATERSON:  Mr. President,

         6       I believe that Senator Waldon graciously opened

         7       the resolution for co-sponsorship at the

         8       beginning of his remarks, and I think he'll

         9       affirm that he'd like to open it up for all

        10       sponsors if they so desire.

        11                      ACTING PRESIDENT SPANO:  Senator

        12       Johnson.

        13                      SENATOR JOHNSON:  Mr. President,

        14       at this time may we please have the

        15       non-controversial reading of the calendar.

        16                      ACTING PRESIDENT SPANO:  Senator

        17       Johnson, Senator Paterson asked if, without

        18       objection, all members of the Senate be included

        19       on the previous resolution.

        20                      SENATOR JOHNSON:  Yes, certainly;

        21       that's great, Mr. President.

        22                      ACTING PRESIDENT SPANO:  All

        23       members will be included unless you notify the

        24       desk, and we will now have the reading of the

        25       non-controversial calendar.







                                                              730

         1                      THE SECRETARY: Calendar Number

         2       64, by Senator Present, Senate Print 532, an act

         3       to amend the General Municipal Law, in relation

         4       to giving municipalities the power.

         5                      SENATOR PATERSON:  Lay that

         6       aside.

         7                      ACTING PRESIDENT SPANO:  Lay

         8       aside.

         9                      THE SECRETARY: Calendar Number

        10       69, by Senator Skelos, Senate Print Number 336,

        11       an act to amend the Public Health Law, the

        12       Criminal Procedure Law and the Family Court Act,

        13       in relation to the testing of persons.

        14                      SENATOR PATERSON:  Lay aside.

        15                      ACTING PRESIDENT SPANO:  Laid

        16       aside.

        17                      THE SECRETARY: Calendar Number

        18       82, by Senator Levy, Senate Print 918, an act to

        19       amend the Public Authorities Law, in relation to

        20       requiring the Metropolitan Transportation

        21       Authority.

        22                      ACTING PRESIDENT SPANO:  Read the

        23       last section.

        24                      THE SECRETARY: Section 2.  This

        25       act shall take effect immediately.







                                                              731

         1                      ACTING PRESIDENT SPANO:  Call the

         2       roll.

         3                      (The Secretary called the roll. )

         4                      THE SECRETARY: Ayes 55.

         5                      ACTING PRESIDENT SPANO:  The bill

         6       is passed.

         7                      THE SECRETARY: Calendar Number

         8       85, by Senator Velella, Senate Print 19, an act

         9       to amend the Insurance Law, in relation to

        10       increasing the amount of credit life insurance.

        11                      ACTING PRESIDENT SPANO:  Read the

        12       last section.

        13                      THE SECRETARY: Section 2.  This

        14       act shall take effect immediately.

        15                      ACTING PRESIDENT SPANO:  Call the

        16       roll.

        17                      (The Secretary called the roll. )

        18                      THE SECRETARY: Ayes 55.

        19                      ACTING PRESIDENT SPANO:  The bill

        20       is passed.

        21                      THE SECRETARY: Calendar Number

        22       86, by Senator DeFrancisco, Senate Print 114, an

        23       act to amend the Insurance Law, in relation to

        24       premium or compensation.

        25                      ACTING PRESIDENT SPANO:  Read the







                                                              732

         1       last section.

         2                      SENATOR LEICHTER:  Lay aside.

         3                      ACTING PRESIDENT SPANO:  Laid

         4       aside.

         5                      THE SECRETARY: Calendar Number

         6       93, by Senator Seward, Senate Print 1182, an act

         7       to amend the County Law, in relation to

         8       establishing county communications systems.

         9                      SENATOR PATERSON: Lay aside.

        10                      ACTING PRESIDENT SPANO: Laid

        11       aside.

        12                      THE SECRETARY: Calendar Number

        13       94, by Senator Volker, Senate Print 87-A.

        14                      SENATOR PATERSON:  Lay aside.

        15                      ACTING PRESIDENT SPANO:  Laid

        16       aside.

        17                      THE SECRETARY: Calendar Number

        18       105, by Senator Volker, Senate Print 887, an act

        19       to amend the Criminal Procedure Law, in relation

        20       to fingerprinting persons.

        21                      ACTING PRESIDENT SPANO: Read the

        22       last section.

        23                      THE SECRETARY: Section 2. This

        24       act shall take effect immediately.

        25                      ACTING PRESIDENT SPANO:  Call the







                                                              733

         1       roll.

         2                      (The Secretary called the roll.)

         3                      THE SECRETARY: Ayes 55.

         4                      ACTING PRESIDENT SPANO:  The bill

         5       is passed.

         6                      Senator Skelos, that completes

         7       the reading of the non-controversial calendar.

         8                      SENATOR SKELOS:  Can we take up

         9       the controversial calendar.

        10                      THE SECRETARY: Calendar Number

        11       64, by Senator Present, an act to amend the

        12       General Municipal Law, in relation to giving the

        13       municipalities the power.

        14                      ACTING PRESIDENT SPANO:  Senator

        15       Present.

        16                      SENATOR PRESENT:  Thank you, Mr.

        17       President.

        18                      The General Municipal Law

        19       requires counties to award bids to the lowest

        20       bidder under a purchase order or a contract.

        21       Under the provisions of this, if a contract

        22       comes in for more than five percent above the

        23       lowest bidder, but it's state-operated, state

        24       provided services and workers, that bid can be

        25       awarded to the organization.







                                                              734

         1                      ACTING PRESIDENT SPANO:  Senator

         2       Paterson.

         3                      SENATOR PATERSON:  Thank you, Mr.

         4       President.

         5                      If Senator Present would yield

         6       for a brief question.

         7                      SENATOR PRESENT:  Certainly.

         8                      ACTING PRESIDENT SPANO:  Senator

         9       Present yields.

        10                      SENATOR PATERSON:  Senator, this

        11       legislation, which exists under the General

        12       Municipal Law, does it in any way conflict with

        13       the set asides provided for women's businesses

        14       under the Public Authorities Law?

        15                      SENATOR PRESENT:  None that I

        16       know, sir.

        17                      SENATOR PATERSON:  Thank you, Mr.

        18       President.

        19                      ACTING PRESIDENT SPANO:  Read the

        20       last section.

        21                      THE SECRETARY: Section 2.  This

        22       act shall take effect immediately.

        23                      ACTING PRESIDENT SPANO:  Call the

        24       roll.

        25                      (The Secretary called the roll. )







                                                              735

         1                      THE SECRETARY: Ayes 55.

         2                      ACTING PRESIDENT SPANO:  The bill

         3       is passed.

         4                      THE SECRETARY: Calendar Number

         5       69, by Senator Skelos, Senate Print 336, an act

         6       to amend the Public Health Law, the Criminal

         7       Procedure Law and the Family Court Act, in

         8       relation to the testing of persons.

         9                      SENATOR PATERSON:  Explanation.

        10                      ACTING PRESIDENT SPANO:

        11       Explanation has been asked for on Calendar 69.

        12                      Senator Skelos.

        13                      SENATOR SKELOS:  Thank you, Mr.

        14       President.

        15                      This legislation, which was

        16       debated last year, allows early detection and

        17       early treatment for our law enforcement

        18       community when, during the course of their

        19       duties, an injury incident relates to possible

        20       exposure to a transmissible disease.  I'm

        21       talking about daily incidents in the life of a

        22       cop or correction officer.  It could be a

        23       scuffle on the street, a brawl in a correction

        24       facility or in routine frisking that potentially

        25       exposes these officers to deadly transmissible







                                                              736

         1       diseases.

         2                      The purpose of this legislation

         3       is to provide a measure of protection to our

         4       police, correction and peace officers.  It gives

         5       them a method of discovering whether they have

         6       been exposed to a transmissible disease during

         7       the performance of their job without jeopardiz

         8       ing the confidentiality of the suspect's medical

         9       condition.

        10                      Treating a possible transmissible

        11       disease right away can prevent these diseases

        12       from becoming full-blown.  It is, therefore,

        13       imperative that treatment begin immediately.

        14       For example, we know now that a gamma globulin

        15       shot administered soon after exposure can stop

        16       hepatitis.  Science now tells us that early use

        17       of AZT can potentially stop HIV, and early

        18       injections of antibiotics can cure TB.

        19                      So basically, what this

        20       legislation does, it provides a measure or a

        21       peace of mind to police officers, early

        22       detection, early treatment and, hopefully, a

        23       cure.

        24                      ACTING PRESIDENT SPANO:  Read the

        25       last section.







                                                              737

         1                      SENATOR DOLLINGER:  Mr.

         2       President.

         3                      ACTING PRESIDENT SPANO:  I'm

         4       sorry.  Senator Dollinger.

         5                      SENATOR DOLLINGER:  I just have a

         6       couple questions that I wanted to make sure I

         7       understand this, but I think you and I discussed

         8       many aspects of this last year at some length.

         9                      Just so I understand the

        10       structure of the bill, again through you, Mr.

        11       President if the sponsor will yield, there are

        12       two sections of the Criminal Procedure Law that

        13       would be changed here.  One says that this is a

        14       requirement for testing of transmissible

        15       diseases in persons under arrest, and then the

        16       second section which actually amends, I believe,

        17       the Family Court Act, which provides for those

        18       that are in custody.

        19                      I guess my question is, is there

        20       a difference between the procedures in those two

        21       bills, or are they identical?

        22                      SENATOR SKELOS:  No.

        23                      SENATOR DOLLINGER:  O.K. So it's

        24       the same procedure for either instance.  Again

        25       through you, Mr. President, turning to the bill







                                                              738

         1       that -- the definition of transmitable disease,

         2       it suggests that it refers to and you refer to

         3       the immunodeficiency virus, HIV, or its

         4       derivatives, you talk about hepatitis and its

         5       derivatives, tuberculosis and then you say any

         6       other serious illness which the court finds the

         7       petitioner could have a reasonable expecta

         8       tion....

         9                      Could you tell me what that

        10       means? Is it -

        11                      SENATOR SKELOS:  Exactly what you

        12       just said.  A police officer, or correction

        13       officer, if they felt that they were potentially

        14       exposed to a transmissible disease -- and we

        15       know that presently 25 percent of the prison

        16       population test positive for TB; 15 percent of

        17       the prison population test positive for the HIV

        18       virus; many of them have both -- what would

        19       happen is the police officer would make an

        20       application to a judge, would have to show

        21       probable cause that he -- he or she may have

        22       been exposed to a transmissible disease.  A

        23       judge would then order, if he felt in his

        24       discretion that a test was warranted for this

        25       potential of having a transmissible disease.







                                                              739

         1                      SENATOR DOLLINGER:  O.K. But my

         2       question is, is it a subjective standard or any

         3       other infectious disease?

         4                      SENATOR SKELOS:  O.K.

         5                      SENATOR DOLLINGER:  My question,

         6       again through you, Mr. President, is it a

         7       subjective standard on the part of the officer

         8       that he could have a reason -- that the officer

         9       could have a reasonable expectation of

        10       contracting the disease, or is it an objective

        11       standard from medical science that says under

        12       these circumstances there was a reasonable

        13       opportunity for the disease to be transmitted,

        14       and do you understand the difference?

        15                      SENATOR SKELOS:  Basically what

        16       it is, Senator Dollinger, is their practical

        17       experience in law enforcement.  For example,

        18       patting down an individual and pricking

        19       themselves with a hypodermic needle, if I were a

        20       police officer I would want that individual

        21       tested immediately.

        22                      SENATOR DOLLINGER:  M-m h-m-m.

        23                      SENATOR SKELOS:  If I am a prison

        24       guard and a prisoner bites me, throws urine and

        25       feces on me, which occurs at times, if there's a







                                                              740

         1       fight and there's blood involved and it gets on

         2       me, to me in my experience as a police officer

         3       or correction officer, at that point I would

         4       feel the need to apply to the judge to have this

         5       person tested for a potential disease.

         6                      SENATOR DOLLINGER:  And again

         7       through you, Mr. President, I understand that

         8       situation.  I question whether your language

         9       here -- your language suggests that the

        10       petitioner -- that the judgment made is whether

        11       the petitioner, the person who has been exposed,

        12       could have a reasonable expectation.  That

        13       suggests that the court would be required to use

        14       a subjective standard based on the officer's

        15       fear of contracting the disease rather than a

        16       medical objective standard for determining

        17       whether the disease could be communicated under

        18       those circumstances.

        19                      SENATOR SKELOS:  Many instances

        20       there's not a doctor right on the scene.  We

        21       want to move this expeditiously because so often

        22       with treatment, if it occurs within 24 hours, 48

        23       hours, there's a better chance of the treatment

        24       being effective with the police officer or the

        25        -- or the prison guard.  If the judge feels







                                                              741

         1       that a hearing would be necessary, then he could

         2       bring in a medical doctor to make that -- that

         3        -- help him make his determination.

         4                      SENATOR DOLLINGER:  Right, but

         5       I'm just -- again through you, Mr. President,

         6       I'm just suggesting that the standard you're

         7       using is a subjective standard, that is whether

         8       the petitioner could have -- could have, might

         9       have, could have a reasonable expectation of

        10       contracting these illnesses from a subject as a

        11       result of the alleged exposure.

        12                      That suggests to me that it's a

        13       subjective standard.  The courts would apply a

        14       subjective standard and not a medically

        15       objective standard about the conditions under

        16       which the disease could be transferred, and I'm

        17       simply highlighting the difference between an

        18       officer coming in and saying, I'm afraid I might

        19       have gotten exposed to this disease, and a judge

        20       saying, There's medical evidence based on

        21       certain facts which would lead to a conclusion

        22       that there might have been a transmission.

        23                      SENATOR SKELOS:  It is to some

        24       extent subjective.  It is something the police

        25       officer could discuss.  For example, at the







                                                              742

         1       press conference we had today, we had a Dr.

         2       Belmonte with us, who is a specialist in

         3       occupational medicine, a surgeon and a

         4       consultant to approximately 20 municipalities

         5       dealing with police and correction officers.  He

         6       averages ten cases a month similar to this.  You

         7       could consult with him.

         8                      The bottom line, what we're

         9       trying to do with this legislation is get early

        10       detection, early treatment and protect the life

        11       of this police officer.

        12                      SENATOR DOLLINGER:  O.K. Again

        13       through you, Mr. President, I'm not going to

        14       focus on the entire bill but just one other

        15       thing I want to make sure about.  Who pays for

        16       the court costs of applying for the court order

        17       to conduct the test?

        18                      SENATOR SKELOS:  Same answer as

        19       last year, the county.

        20                      SENATOR DOLLINGER:  The county

        21       pays for the cost of applying.

        22                      SENATOR SKELOS:  You would make

        23       an application, ex parte application, to the

        24       court.  The court would make that decision on

        25       whatever costs there are involved.  It would be







                                                              743

         1       paid by the -- by that county.

         2                      SENATOR DOLLINGER:  Again through

         3       you, Mr. President, I'm a police officer, I want

         4       to get the test done.  I file the petition in my

         5       name, and it's -- the cost is paid for by the

         6       county.

         7                      SENATOR SKELOS:  Or the state if

         8       you filed the petition with the court.

         9                      SENATOR DOLLINGER:  If I file.

        10       O.K. The other question is, with respect to

        11       Section 3 in the bill, this is line 42 through

        12       45, it says that there is notice to the other

        13       side, to the person under arrest, and there's an

        14       opportunity -- is there an opportunity to be

        15       heard?

        16                      SENATOR SKELOS:  The person will

        17       get notice of the decision of the court.

        18                      SENATOR DOLLINGER:  Right, but my

        19       question again through you, Mr. President, is

        20       whether -- if Senator Skelos will continue to

        21       yield is, does he get an opportunity to be

        22       heard?

        23                      SENATOR SKELOS:  No, it's an ex

        24       parte application and, if the judge in his

        25       discretion wants to bring in the person that's







                                                              744

         1       been arrested or that's incarcerated to be part

         2       of that proceeding, he can.  It's in the

         3       discretion of the court, but it's an ex parte

         4       application.  When the court makes its decision,

         5       they then will obviously notify both the

         6       petitioner and the person who is going to be

         7       tested.

         8                      SENATOR DOLLINGER:  O.K. I thank

         9       Senator Skelos for enduring another set of

        10       questions as last year.

        11                      Just on the bill, Mr. President.

        12                      ACTING PRESIDENT SPANO:  Senator

        13       Dollinger, on the bill.

        14                      SENATOR DOLLINGER:  The reason

        15       why I highlighted those two sections of the bill

        16       is because I think, to some extent, they're what

        17       the bill is all about.  What this bill talks

        18       about is the fear of transmissible disease and

        19       not necessarily the reality of circumstances

        20       under which diseases are transmitted.

        21                      In the definition of

        22       "transmissible disease," the way the language

        23       reads, it says, If the petitioner could -

        24       could, not does, but could have a reasonable

        25       expectation -- expectation -- that he might -







                                                              745

         1       might have been exposed and that he might have

         2       been in contact with someone, then under those

         3       circumstances, you are entitled to bring a

         4       petition to be tested.

         5                      It seems to me that that

         6       addresses the one issue that we all agree with

         7       and that is that people are afraid of the

         8       transmission of diseases in these situations.

         9       But the mere fear alone is not enough to require

        10       testing, and I would strongly suggest that there

        11       be a medical standard that the court would apply

        12       to the process by which testing occurs.

        13                      In order to apply a medical

        14       standard, it seems to me, Mr. President, what

        15       you have to do is, you have to give notice and

        16       an opportunity to be heard by the defendant, by

        17       the person in custody because the defendant

        18       could walk in the courtroom and say, I disagree

        19       with the facts alleged in the petition and I

        20       want a hearing on the issue of whether or not

        21       there is probable cause.

        22                      I think what this shows is the

        23       bill, although it tries to address a very

        24       complicated issue, is so hastily drafted and

        25       somewhat inartfully drafted that could create







                                                              746

         1       problems for our courts in trying to interpret.

         2                      I also think that this deals with

         3       a problem of fear and it is the second best way

         4       to determine whether diseases have been

         5       transmitted.  There is one absolutely clear

         6       first way to do it and that is, have the officer

         7       pay -- have the cost paid for by the county for

         8       the officer to be tested immediately and tested

         9       as frequently as possible to determine whether

        10       exposure has occurred.  That's the easy way to

        11       do it.  It's not based on fear; it's all based

        12       on simple medical science.

        13                      That is what we should be

        14       focusing on, and it seems to me that's the right

        15       thing to do.  This may be the second best thing

        16       to do.  I'm not sure this bill even does what

        17       the sponsor may or is attempting to do, but the

        18       best thing to do, the first thing to do, the

        19       thing that simply allays the fears and solves

        20       the problem is to simply allow the person to be

        21       tested and have the government pay the cost.

        22                      When that bill comes forward, I

        23       will be voting for it.  This bill, I will not.

        24                      SENATOR GOLD:  Last section.

        25                      ACTING PRESIDENT MAZIARZ:  Thank







                                                              747

         1       you, Mr. President.  Would the Deputy Majority

         2       Leader yield for a question?

         3                      SENATOR SKELOS:  I will.

         4                      ACTING PRESIDENT MAZIARZ:

         5       Senator Skelos.

         6                      SENATOR SKELOS:  Yes, I will.

         7                      SENATOR PATERSON:  Senator

         8       Skelos, understanding as we do these are pretty

         9       egregious situations and they place the

        10       individuals who are affected into situations

        11       that create a lot of fear and anxiety as Senator

        12       Dollinger referred, assuming that the -

        13       assuming that the defendant tested negative for

        14       whatever the disease might be, the HIV virus or

        15       tuberculosis, assuming that the defendant tested

        16       negative, to what extent would you suggest that

        17       it provides relief for the party that is perhaps

        18       urged by that not to be tested when the more

        19       responsible medical advice might be that they

        20       take the test?

        21                      SENATOR SKELOS:  It offers some

        22       peace of mind, but certainly the -- I think the

        23       consultation and the advice that a doctor such

        24       as Dr. Belmonte would give them is that perhaps

        25       you should be tested down the road, especially







                                                              748

         1       for the HIV virus, but there is an added measure

         2       of protection by having that person arrested

         3       tested at that time, especially the hepatitis

         4       and especially for TB where, if you can start

         5       treatment within 28 hours to 48 hours, you can

         6       have an cure of the disease.

         7                      SENATOR PATERSON:  Understanding

         8       that, I think that's precisely relating to the

         9       question that I previously asked.  In other

        10       words, since that is the best medical advice

        11       that we can come up with, the question is not

        12       really the merit of the legislation, because the

        13       legislation does have merit, but I think the

        14       question I'm asking is, for individuals who are

        15       already afraid to be tested that there's a kind

        16       of avoidant conduct that's been evidenced among

        17       people who have these types of problems that

        18       doesn't this provide in a sense a false comfort

        19       to them since we don't even know what diseases

        20       the defendant might have or might have

        21       transmitted?

        22                      SENATOR SKELOS:  It offers some

        23       sense of security that, if the defendant or the

        24       person arrested is tested at that time, we can

        25       find out whether, in fact, they are infected







                                                              749

         1       with one of these diseases.  Is it a hundred

         2       percent?  The answer is no.  But that's some

         3       thing that -- that they would be counseled by

         4       with their doctor, that perhaps there still is a

         5       need to be tested, but at that time there can be

         6       some sort of a determination as to whether they

         7       have been infected with this transmissible

         8       disease.

         9                      SENATOR PATERSON:  If the Senator

        10       would yield for another question.

        11                      ACTING PRESIDENT MAZIARZ:

        12       Senator Skelos.

        13                      SENATOR PATERSON:  Then how does

        14       the information that we derive from the test

        15       affect treatment?

        16                      SENATOR SKELOS:  Well, let's talk

        17       about a situation where the person is tested,

        18       does not have TB or hepatitis.  The police

        19       officer then can opt not to get the gamma

        20       globulin shots, not to get the other shots that

        21       are often very painful because he knows that

        22       this person is not infected with at least these

        23       two diseases so, by the -- by the -- by the

        24       person that's been arrested or in custody, not

        25       at least showing these two diseases, you can







                                                              750

         1       avoid certain painful and costly tests at that

         2       time.  So at least it eliminates those

         3       potentials.

         4                      SENATOR PATERSON:  Following up

         5       on that, Mr. President, if Senator Skelos would

         6       yield again.

         7                      ACTING PRESIDENT MAZIARZ:

         8       Senator Skelos, do you continue to yield to

         9       Senator Paterson?

        10                      SENATOR SKELOS:  Yes.

        11                      ACTING PRESIDENT MAZIARZ:

        12       Senator Paterson.

        13                      SENATOR PATERSON:  Then I would

        14       imagine that the distinction that you're drawing

        15       with the HIV virus is that it takes longer to

        16       get the test results.

        17                      SENATOR SKELOS:  It may take

        18       longer to get the results.  It may take longer

        19       to manifest themselves.

        20                      SENATOR PATERSON:  Right.

        21                      SENATOR SKELOS:  Yes.

        22                      SENATOR PATERSON:  Well, I

        23       certainly understand that, and thank you,

        24       Senator Skelos, but I think the point that I am

        25       very concerned about is that in these situations







                                                              751

         1       that are quite dangerous, and you set them forth

         2       quite well in your legislation.  In other words,

         3       this is not an issue that should be taken

         4       lightly, and it's an issue that you've taken a

         5       lot of time to research and it's quite

         6       commendable, but then somewhere at the end of

         7       the legislation, we're stopping short of what

         8       would be, in my opinion, the desired effect

         9       which would be to be as close to being certain

        10       as we possibly can be when the lives of police

        11       officers are at stake and, in my opinion, the

        12       only way that would be best accomplished is

        13       through the testing of the potential victim

        14       based on their contact with the defendant, the

        15       inmate or whoever the person is.

        16                      I have one last question on

        17       another part of the bill, if the Senator would

        18       continue to yield.

        19                      ACTING PRESIDENT MAZIARZ:

        20       Senator Skelos, do you continue to yield?

        21                      SENATOR SKELOS:  Certainly.

        22                      ACTING PRESIDENT MAZIARZ:

        23       Senator Paterson.

        24                      SENATOR SKELOS:  The police

        25       officer, the correction officer it would be







                                                              752

         1       common practice if they are bitten, if somebody

         2       spits on them, if blood is put on them, that

         3       they would be tested also.  So now what we have

         4       is the person arrested being tested and also if

         5       this legislation passes, and also the police

         6       officer.

         7                      SENATOR PATERSON:  Well, now -

         8                      ACTING PRESIDENT MAZIARZ:

         9       Senator Paterson.

        10                      SENATOR PATERSON:  Thank you, Mr.

        11       President.

        12                      Senator, if you wouldn't mind

        13       yielding.  I'm somewhat confused because if

        14       we're going to test, if that's the standard

        15       practice, then why do we need to test the other

        16       party where the information is certainly a lot

        17       more faulty?

        18                      SENATOR SKELOS:  Because the

        19       disease may not have manifested itself at that

        20       immediate time, hours after the incident, with

        21       the police officer or the correction officer.

        22                      SENATOR PATERSON:  What I'm

        23       suggesting, Senator, is that this disease being

        24       present in the inmate does not necessarily mean

        25       that it was transferred, and so in a sense we







                                                              753

         1       have a situation where both possibilities exist,

         2       in other words, where the -- where the police

         3       officer or the corrections officer may or may

         4       not have the disease or may not -- may or may

         5       not have acquired it, symptomatic or not, based

         6       on the contact with the -- the inmate and the

         7       defendant, and although the information might be

         8       important, for instance, if you were saying that

         9       this information is important because we need to

        10       know based on the contact that this inmate might

        11       have with other officers as yet where there

        12       hasn't been contact, in other words as a safety

        13       precaution, then I wholeheartedly agree with

        14       you, but I'm saying to know for the point of

        15       whether or not it got transferred to the

        16       individual who's making the applications where I

        17       don't think the information provides us with

        18       what is as close to what we would need in this

        19       case which is to have medical accuracy, and so

        20       now I'll go on to the next question, if the

        21       Senator will yield.

        22                      ACTING PRESIDENT MAZIARZ:

        23       Senator Skelos.

        24                      SENATOR SKELOS:  Yes, Mr.

        25       President.







                                                              754

         1                      ACTING PRESIDENT MAZIARZ:

         2       Senator Paterson.

         3                      SENATOR PATERSON:  Senator, just

         4       very briefly on the issue of confidentiality.  I

         5       notice that you have listed the potential of

         6       reaching out to the victim, the victim's

         7       immediate family, the health care providers, the

         8       victim's attorney.  I'm just wondering if there

         9       isn't a wide range of individuals that would be

        10       provided information who might not necessarily

        11       need to know the information about the result of

        12       these tests.

        13                      SENATOR SKELOS:  We've tried to

        14       keep it as tight as possible and, in fact, the

        15       person that's been tested, if they opted not to

        16       get the information, they won't be told the

        17       information.

        18                      ACTING PRESIDENT MAZIARZ:

        19       Senator Waldon.

        20                      SENATOR WALDON:  Thanks very

        21       much, Mr. President.

        22                      Would the gentleman yield to a

        23       question or two?

        24                      ACTING PRESIDENT MAZIARZ:

        25       Senator Skelos, would you yield to a question







                                                              755

         1       from Senator Waldon?

         2                      SENATOR SKELOS: Yes.

         3                      ACTING PRESIDENT MAZIARZ:

         4       Senator Waldon.

         5                      SENATOR WALDON:  Thank you, Mr.

         6       President.  Thank you, Senator Skelos.

         7                      Just for my personal edification,

         8       would you clarify some things.  Do you know

         9       definitively what is the gestation period for

        10       some -- let's just deal with the one that causes

        11       the most fear in the universe, for the HIV

        12       virus?

        13                      SENATOR SKELOS:  Senator Waldon,

        14       what I know definitively is the testimony of

        15       Albany Police Officer Steve Reilly, whose wife

        16       works in the Senate, who is presently pregnant.

        17       He had his blood commingled with a murder

        18       suspect's in a car.  I know what they're going

        19       through right now in their lives because this

        20       person would not be tested.

        21                      I know what Todd Tortia, a police

        22       officer from Nassau County, is going through

        23       that finally after six months and being treated

        24       with AZT as a precautionary measure, actually

        25       more than six months, not being able to work for







                                                              756

         1       six months, how it affected his family, and

         2       finally the person that was incarcerated

         3       submitting to a test and being found not to be

         4       infected with any transmissible disease so that

         5       this treatment that the police officer went

         6       through was needless -- actually it was over a

         7       year -- and I also know what 28-year-old Albany

         8       city police officer Victor Pizzola went through

         9        -- oddly enough his wife also works for the

        10       Senate and they have a one-year-old daughter -

        11       and the person that he was involved with would

        12       not submit to a test until a plea bargain

        13       arrangement was arranged with the court. Finally

        14       he submitted to a test and was not found to be

        15       positive for any transmissible diseases.  That's

        16       what I know that's certain, what these people

        17       have gone through with their lives.

        18                      SENATOR WALDON:  Senator -- if I

        19       may, Mr. President.

        20                      ACTING PRESIDENT MAZIARZ:

        21       Senator Waldon.

        22                      SENATOR WALDON:  I have great

        23       respect for you, I have great respect for what

        24       you're attempting to do with the bill, but

        25       considering that respect on a personal level I







                                                              757

         1       have to -- you are totally non-responsive to my

         2       question.

         3                      I'm asking you to help me and

         4       perhaps others in this chamber to understand the

         5       fear surrounding the issue of transmissible

         6       diseases to law enforcement personnel who are

         7       heroes on the line, good samaritans who give

         8       their lives all too often and take risks all too

         9       often so the rest of us can be safe and secure.

        10       This is not a frivolous activity.  If you don't

        11       know the gestation period for HIV, I would

        12       respectfully request that you just say no.

        13                      SENATOR SKELOS:  I know that it's

        14       an extended period of time.

        15                      SENATOR WALDON:  Thank you for

        16       that.  Mr. President, if I may ask another

        17       question.

        18                      ACTING PRESIDENT MAZIARZ:

        19       Senator Waldon.  Senator Skelos, do you continue

        20       to yield?

        21                      SENATOR SKELOS:  Yes.

        22                      SENATOR WALDON:  Thank you,

        23       Senator Skelos.  Thank you, Mr. President.

        24                      Then, Senator Skelos, can we

        25       create a hypothetical?  The hypothetical I wish







                                                              758

         1       you to respond to is the following: Someone may,

         2       in fact, be infected but the infection has not

         3       reached a level where it will present itself

         4       even if that person is tested.  Can you accept

         5       that that's a possibility?

         6                      SENATOR SKELOS:  And, Mr.

         7       President, I think, if I may, I think I

         8       mentioned that to Senator Paterson that that

         9       possibility does exist, but we know with TB and

        10       hepatitis, because for some reason you seem to

        11       be focused only on HIV.  I mean I'm talking

        12       about tuberculosis, hepatitis, other type

        13       infectious diseases also, so that we're not just

        14       focused on the HIV virus, but TB, hepatitis, you

        15       detect it and start treatment within 28, 48

        16       hours, the potential for curing that disease

        17       within the police officer is nearly a hundred

        18       percent.

        19                      SENATOR WALDON:  If I may

        20       continue, Mr. President.  Would the gentleman

        21       just continue to yield to a few more questions?

        22                      ACTING PRESIDENT MAZIARZ:

        23       Senator Skelos, would you continue to yield to

        24       Senator Waldon?

        25                      SENATOR SKELOS:  Yes.







                                                              759

         1                      SENATOR WALDON:  Senator, my

         2       purpose for asking is for a real purpose, and

         3       we'll get to it in a minute.  If -- another

         4       hypothetical.  If someone is infected and the

         5       gestation period for when that infection will

         6       show on a test does not happen, then there's no

         7       way even if he or she is tested, that the

         8       victim, the officer, will be able to

         9       definitively say Aha!, they have something, and

        10       I need to go through the process of treatment.

        11       Is that what you were saying earlier?

        12                      SENATOR SKELOS:  You can sit here

        13       and come up with so many possibilities.  We do

        14       not live in a perfect world, Senator Waldon, but

        15       all I know are the police officers, the peace

        16       officers, the correction officers that are

        17       supporting this legislation and, as I said to

        18       you last year when we went through our dance,

        19       our annual dance on this bill, these individuals

        20       feel that it's necessary in order to give them

        21       an additional way of protecting themselves when

        22       this type of incident occurs to them, so I'm

        23       going to err on the side of going along with our

        24       police officers.

        25                      SENATOR WALDON:  May I continue,







                                                              760

         1       Mr. President?  Would the gentleman -

         2                      ACTING PRESIDENT MAZIARZ:

         3       Senator Skelos, do you continue to yield?

         4                      SENATOR SKELOS:  Yes, Mr.

         5       President.

         6                      ACTING PRESIDENT MAZIARZ:

         7       Senator Waldon.

         8                      SENATOR WALDON:  Senator Skelos,

         9       we will pass this bill in this house.  What

        10       effect will this bill have, and now we're

        11       getting down to what I really want to deal with

        12       this year, and I must tell you that you're a

        13       very great dancing partner.  The rhythms have

        14       always been good, and we engage each other in a

        15       very fine, fine fettle, if I may.

        16                      There is nothing in this bill as

        17       proposed by you which will create a change in

        18       the procedures in any of the police departments

        19       across the state; is that a correct analysis?

        20                      SENATOR SKELOS:  Doesn't change

        21       any procedures.

        22                      SENATOR WALDON:  O.K. Thank you

        23       very much.

        24                      On the bill, Mr. President.

        25                      ACTING PRESIDENT MAZIARZ:







                                                              761

         1       Senator Waldon, on the bill.

         2                      SENATOR WALDON:  I believe I

         3       understand the Senator's concern and his concern

         4       on behalf of our law enforcement personnel and I

         5       am extremely sensitive to the needs of law

         6       enforcement personnel across the state, but I

         7       think this is flawed.

         8                      One, for a police officer on the

         9       line, the detective or a uniformed officer at

        10       the lowest level to get anything done, he has to

        11       go through a sergeant, through his lieutenant,

        12       through his captain if he's in a bureau, through

        13       his bureau chief and nothing is going to happen

        14       within 24 to 48 hours which will allow him or

        15       her to be tested in a proper fashion to

        16       accomplish what Senator Skelos wishes to do.

        17                      Senator Paterson was on the

        18       money.  Why should we mess around with all these

        19       other activities?  Why not cut to the chase?  If

        20       the officer who, most of them, when they begin

        21       their career graduated only from high school,

        22       has no medical degree, has no ability to say

        23       that I was in the Army, because most people do

        24       not go into the Army or the Air Force or the

        25       Marines or whatever now, but I have training in







                                                              762

         1       a second eight weeks in the service which gives

         2       me some expertise in this area which I can then

         3       say definitively I know that medically this

         4       person might have a disease that I need to

         5       protect myself from.

         6                      What we need to do is cut right

         7       to the chase and, if the officer, in his or her

         8       opinion, feels I've been exposed then go right

         9       into a treatment component until they find out

        10       whether or not it's true.  It saves money.  It

        11       saves aggravation.  It doesn't violate

        12       constitutional guarantees in terms of someone

        13       giving up their rights.

        14                      I think that it is an exercise -

        15       an exercise in futility to follow the mandates

        16       of this particular proposal, and I would

        17       encourage us not to support it.

        18                      Thank you very much, Mr.

        19       President.  Thank you very much, Senator

        20       Skelos.

        21                      ACTING PRESIDENT MAZIARZ:  Thank

        22       you, Senator Waldon.

        23                      Senator Leichter.

        24                      SENATOR LEICHTER:  Yes.  Thank

        25       you, Mr. President.







                                                              763

         1                      Senator Skelos, I just read our

         2       debate of last year, and I must say I was pretty

         3       persuasive.

         4                      SENATOR SKELOS:  Well, then,

         5       maybe you just want to say "ditto".

         6                      SENATOR LEICHTER:  Well, I will

         7       say "ditto" to the extent of not asking you any

         8       questions because the questions that you were

         9       asked by Senators Dollinger and Paterson and

        10       Waldon pointed out, I think, some of the

        11       difficulty that the rest of us have with this

        12       bill, and let me say that all of us want to take

        13       action to actually protect police officers.

        14       Theirs is a tough job and, if we can give them

        15       realistic honest protection, if we could do so

        16       within constitutional bounds, we certainly ought

        17       to do that and I have no problem with that.

        18                      The difficulty that we have with

        19       this bill is that it doesn't help police

        20       officers because, as you admitted last year and

        21       I think you admitted this year, irrespective of

        22       the test that is given the offender, the

        23       subject, as he or she are referred to in your

        24       bill, you have to test the police officer.  It

        25       would be irresponsible not to test that police







                                                              764

         1       officer.

         2                      So if you're in a situation where

         3       there's a chance of the passage of a

         4       communicable disease, the very first thing you

         5       must do is have that officer tested and it's the

         6       results of that test which will determine

         7       whether treatment is necessary or is not

         8       necessary.

         9                      Now, what you -- what you've done

        10       with this bill is, you've cloaked it with all

        11       sorts of communicable disease, but really,

        12       you're talking about HIV, and I submit to you

        13       it's a punitive bill because for HIV it makes

        14       absolutely no sense whatsoever to test the

        15       person who might have commun... communicated the

        16       disease because, as we know, and HIV is

        17       extremely complex and so on, the person could

        18       test negative and still have transmitted the

        19       disease.  He could test positive and may not

        20       have transmitted the disease and everyone will

        21       tell you that you must test the person who

        22       thinks he or she were infected.

        23                      Now, as far as TB and hepatitis,

        24       those have been around for a long time and

        25       nobody ever brought out a bill of this sort.  I







                                                              765

         1       don't think it's a problem, but it may be that

         2       in the case of TB, maybe in the case of

         3       hepatitis, tests would be justified.  Keep in

         4       mind that you have to have a very compelling

         5       standard here, because you're testing people who

         6       have not been convicted, so you have certain -

         7       they have certain rights, rights against search

         8       and seizure, but it may be that if you can

         9       really show a great medical advantage or

        10       benefit, that the courts will say that that is

        11       justifiable.

        12                      But that's not really what you're

        13       trying to do.  You're trying to deal with HIV

        14       and that's why this bill surfaced at the time

        15       that HIV became a problem in our society, and I

        16       think that it is punitive.  It's punitive saying

        17       you're somebody, you've been arrested, you're a

        18       subject, we think you might even have HIV; we're

        19       going to test you although it does absolutely

        20       nothing insofar as telling you whether the

        21       arresting officer, whether he pricked his finger

        22       or was bitten, or so on, might have been

        23       infected with the HIV virus.

        24                      For that reason, I think the bill

        25       is unconstitutional because it serves no purpose







                                                              766

         1       and again, I remind you you're dealing with

         2       people who are arrested, have not been

         3       convicted.  If you want to bring in a bill that

         4       deals only with hepatitis or TB, it may be that

         5       you have a bill that I and others could support

         6       and that's constitutional.  But your bill is

         7       aimed at HIV and for HIV it does absolutely

         8       nothing.  If anything, it's misleading.

         9                      That officer who says, Well, I

        10       think I might have contacted HIV, and they have

        11       tested that subject and he doesn't have it, I'm

        12       not going to be tested, he would be -- he would

        13       be in danger.  He shouldn't in any respect rely

        14       on the test, and similarly, if the test shows

        15       that the person was arrested was positive, it

        16       doesn't mean that he right away goes into

        17       treatment.  You have to test him.

        18                      So, Senator Skelos, I think the

        19       bill makes an ideological statement.  It

        20       expresses the disgust that some people have with

        21       persons who have -- who are HIV positive, but it

        22       does nothing for the law enforcement community.

        23       It does nothing to deal with the real medical

        24       problem, and I think it's constitutionally

        25       defective.







                                                              767

         1                      ACTING PRESIDENT MAZIARZ:  Thank

         2       you, Senator Leichter.

         3                      Senator Abate.

         4                      SENATOR ABATE:  Yes.  Would

         5       Senator Skelos yield to just a couple questions?

         6                      ACTING PRESIDENT MAZIARZ:

         7       Senator Skelos, would you yield to a couple

         8       questions?

         9                      SENATOR SKELOS:  Same as last

        10       year?

        11                      SENATOR ABATE:  I'd like to say

        12       same as last year but also I want to cover a

        13       couple questions that my colleagues raised, but

        14       I want to take it one step further.

        15                      Senator Leichter raised a very

        16       good issue.  We all understand that particular

        17       ly with TB, it's contagious and hepatitis is a

        18       very serious disease and the medical knowledge

        19       at hand says that, when you test someone for

        20       either hepatitis and TB, you have a very good

        21       idea whether they have it or not.  You don't

        22       have to wait for the immunity and the virus to

        23       show within the blood stream to see if the test

        24       is accurate.

        25                      If we really were concerned about







                                                              768

         1       protecting officers and giving them adequate -

         2                      SENATOR SKELOS:  We really are

         3       concerned, Senator, that's your interpretation.

         4       We really are concerned.

         5                      SENATOR ABATE:  Well, the reason

         6       I'm separating out because it's my understanding

         7       that we could pass today easily and pass in the

         8       Assembly easily if we separated out HIV testing

         9       and had a bill that just talked about hepatitis

        10       testing as well as TB.

        11                      Why not separate out the

        12       controversial from the non-controversial so at

        13       least immediately we could provide some relief

        14       to law enforcement officers and then go back and

        15       debate the HIV testing issue?

        16                      SENATOR SKELOS:  Because at least

        17       15 percent of the prison population is now HIV

        18       positive.

        19                      SENATOR ABATE:  But even a

        20       greater percent of the prison population have

        21       TB.

        22                      SENATOR SKELOS:  25 percent.

        23                      SENATOR ABATE:  And hepatitis, so

        24       why not create some immediate relief where we're

        25       testing these defendants and providing some good







                                                              769

         1       relief to law enforcement, and I guess that's my

         2       question, why not separate HIV testing out and

         3       do two-thirds of the bill today?

         4                      SENATOR SKELOS:  Because I think

         5       this is a very important component.  If you

         6       consider HIV a socially protected disease that's

         7       fine.  I consider it a disease that can

         8       negatively impact our police officers and

         9       correction officers just as TB can, just as

        10       hepatitis can.

        11                      SENATOR ABATE:  Well, let me

        12       rephrase the question.  If, in fact, we debate

        13       this bill like we did last year and we come back

        14       a year later with the same debate, around the

        15       advisability and the accuracy of this HIV test,

        16       and yet we would, if we could in this short term

        17       interim pass something, even though it's two

        18       thirds of a loaf, why not do it instead of

        19       coming back here next year in the same position

        20       we are today?  Why not at least pass immediately

        21       the testing that could require testing of

        22       defendants on TB and -- and hepatitis, even

        23       though it's not ideal as far as you're

        24       concerned?  We would be providing some real

        25       peace of mind to law enforcement officers on two







                                                              770

         1       thirds of the loaf.

         2                      SENATOR SKELOS:  Senator Abate,

         3       it's amazing how things sometimes happen in this

         4       Legislature.  Bills pass the Assembly that we

         5       never think would pass, and I'm hopeful that

         6       they'll see the wisdom of this legislation and

         7       pass it.

         8                      SENATOR ABATE:  But what I'm

         9       suggesting is we still could pass potentially

        10       two bills.  If everyone began to see it the way

        11       you did, we could pass two bills, one dealing

        12       with HIV testing, maybe down the road if you're

        13       right, but at least today we could reach a

        14       consensus and provide testing of defendants

        15       around the critical areas where there's

        16       agreement.

        17                      SENATOR SKELOS:  Why don't we

        18       suggest this to your colleagues in the Assembly

        19       majority, that they pass the bill you're

        20       suggesting and we, with consent, of course, of

        21       the Majority Leader and the Speaker, that we go

        22       to joint conference committee, and air out the

        23       difference between the two bills and see if we

        24       can resolve our differences?

        25                      SENATOR ABATE:  Not being in the







                                                              771

         1       leadership, I mean I think there is a

         2       difference.  Sure, we'll look at that, but I

         3       think there is a difference between the testing

         4       of HIV in terms of sound health care policy and

         5       the testing of TB and hepatitis, but let me go

         6       on.  When I talk on the bill, we can discuss the

         7       differences, but I think we in the Legislature

         8       should be about providing immediate relief when

         9       we can agree on issues.  We should identify

        10       those issues and pass legislation instead of

        11       putting forth legislation year after year that

        12       dies because we can't agree on a hundred percent

        13       of the bill.

        14                      SENATOR SKELOS:  Well, first of

        15       all, this is the second -

        16                      SENATOR ABATE:  I say let's be

        17       practical.

        18                      SENATOR SKELOS:  This is the

        19       second year that I brought this bill before the

        20       house and it reminds me of other legislation

        21       that I've had such as Megan's Law and others

        22       that it took sometimes two years for the

        23       Assembly to see the wisdom, the wisdom of the

        24       legislation that the Senate passed.

        25                      SENATOR ABATE:  Well, this is not







                                                              772

         1       about politics or ideology, this is about

         2       relying on the medical profession to give us

         3       some guidance, but at any rate, let me just go

         4       on to the testing of the defendants in this

         5       situation.  Who will bear the cost, and what

         6       will be the cost of this testing? I know I asked

         7       that question last year.

         8                      SENATOR SKELOS:  The county.

         9                      SENATOR ABATE:  And the counties

        10        -- do we have a price tag on what that will

        11       cost the counties?

        12                      SENATOR SKELOS:  No, no, no.

        13                      SENATOR ABATE:  And then

        14       procedurally, what will be the increased cost to

        15       local corrections because there will be a sub

        16       set of people who now could be detained up to 24

        17       hours for a hearing, or more than 24 hours if

        18       they refuse to get tested.

        19                      SENATOR SKELOS:  I'm looking to

        20       our police.  I'm not putting the cost factor on

        21       a policeman's life.  You may want to put a cost

        22       factor on a policeman's life or a correction

        23       officer's life.  I won't do that.

        24                      SENATOR ABATE:  I know probably a

        25       lot more about correction officers, and I'm very







                                                              773

         1       concerned about their security, but this bill

         2       does not provide any more health security than

         3       they have now.

         4                      SENATOR SKELOS:  Well, then,

         5       you're smarter and brighter than every

         6       correction officer, every police officer that's

         7       supporting this legislation, and I compliment

         8       you on your intelligence, being smarter than all

         9       of these.

        10                      SENATOR ABATE:  I don't have a

        11       medical degree, but I will talk on the bill.

        12                      SENATOR SKELOS:  You should chat

        13       with Dr. Belmonte who comes in contact with

        14       these situations almost on a daily basis and

        15       says that it's absolutely necessary not only to

        16       test the individual who -- the police officer

        17       that perhaps has been bitten or spat upon.

        18                      SENATOR ABATE:  I agree with

        19       that, every officer must be tested.

        20                      SENATOR SKELOS:  But also the

        21       person that does that because, if that person,

        22       for example, the test indicates that he or she

        23       is HIV positive, with the advances that we've

        24       seen now, immediate treatment with AZT, that

        25       police officer's life may be saved.  That's my







                                                              774

         1       bottom line, saving that police officer's life.

         2                      ACTING PRESIDENT MAZIARZ:

         3       Senator Abate.

         4                      SENATOR ABATE:  Yes, could the

         5       Senator yield to additional questions?

         6                      ACTING PRESIDENT MAZIARZ:

         7       Senator Skelos, would you yield to additional

         8       questions?

         9                      SENATOR SKELOS:  We'll yield to

        10       one more additional question.

        11                      SENATOR ABATE:  Well, then, I'll

        12       have to ask someone else to yield because I have

        13       additional questions.

        14                      SENATOR SKELOS:  Well, if you

        15       know the rules of the Senate, it says you're not

        16       allowed to ask anyone additional questions.

        17                      SENATOR ABATE:  Let me ask a

        18       question and then if I need additional questions

        19       I'll understand where you're going.

        20                      SENATOR SKELOS:  Fine.

        21                      SENATOR ABATE:  The question is

        22       where in the bill does it provide money and

        23       programs to provide testing to the officers

        24       themselves and where in the bill does it provide

        25       for pre- and post-counseling for the officers







                                                              775

         1       who are going through a great deal of trauma who

         2       need this kind of relief? What are we doing for

         3       the officer, the HIV testing?

         4                      SENATOR SKELOS:  Most counties

         5       now, through their own procedures, pay for the

         6       testing of the officer if he is -- comes in

         7       contact with the type of situation we've been

         8       discussing.  It provides counseling to these

         9       officers presently.  All we're doing now is

        10       saying, test the person that's been arrested or

        11       that's in custody also.  That's the additional

        12       step that we're taking here.

        13                      SENATOR ABATE:  But there's

        14       nothing in this bill that would enhance those

        15       services to the officers who need immediately -

        16       immediate testing, giving localities the money

        17       to do that immediate testing, making sure that

        18       medications and drugs are available to the

        19       officers and making sure that there's counseling

        20       available to those officers? Is this bill silent

        21       on those issues?

        22                      SENATOR SKELOS:  The testing will

        23       be -- will occur.  The results will be found and

        24       it will be paid for by the county.

        25                      SENATOR ABATE:  O.K. On the







                                                              776

         1       bill.  Thank you very much.

         2                      ACTING PRESIDENT MAZIARZ:

         3       Senator Abate, on the bill.

         4                      SENATOR ABATE:  I agree

         5       wholeheartedly with the notion that we owe an

         6       immense debt of gratitude, and we have to do

         7       everything we can to protect our law enforcement

         8       officers so, if they have some real needs, so

         9       that we can relieve their peace of mind to give

        10       them some comfort we should do that and that's

        11       why I support a bill which makes a lot of sense

        12       because we will be giving good health

        13       information to that officer if we mandate the

        14       testing of defendants for TB and hepatitis.

        15                      But what we're doing when we say

        16       that we need to test defendants in terms of HIV

        17       is what my colleagues have said, the doctors

        18       have said, depending on when an individual is

        19       tested that person may test negative when, in

        20       fact, they do have the HIV virus.  We should not

        21       ever sanction as a government giving -- give bad

        22       information, particularly to our law enforcement

        23       officers.  They need accurate information so

        24       they can make good and sound health decisions to

        25       protect themselves.  So what we should be







                                                              777

         1       talking about is making sure the localities have

         2       enough money available to, on the spot, give

         3       testing to the officers who need it, to make

         4       sure they have counseling available, that there

         5       is enough money by the localities to deal with

         6       all these other issues, to protect the peace of

         7       mind of officers.

         8                      There's nothing in this bill that

         9       does that.  The response was, Well, the

        10       localities have enough money now and have the

        11       resources to do it.  I submit the localities do

        12       not have the money.  There should be enough

        13       programs designed where law enforcement officers

        14       can meet and get that counseling separate and

        15       apart from other programs that provide the

        16       counseling to constituents generally.

        17                      If you talk to law enforcement

        18       officers, they want to receive this kind of

        19       counseling and testing in a -- in a -- in a very

        20       private way.  I don't believe that the

        21       localities have these resources.  We should be

        22       talking about that and not giving them bad

        23       information.

        24                      Also, we haven't gotten answers

        25       today, and I think it's a major issue.  What







                                                              778

         1       will the impact of this bill be on the court

         2       system, on the correction system? We heard not

         3       so long ago from local jail system that they're

         4       dealing with enormous overcrowding and the state

         5       keeps putting more and more burdens on them in

         6       terms of unfunded mandate relief.

         7                      This bill could, in fact, mean

         8       that some people will be in the jail system

         9       longer, because they refuse to be tested.  The

        10       judge has to make a decision.  They talk about

        11       24 hours and it may be longer than 24 hours.

        12       Have we done a cost:benefit analysis to see if

        13       this makes sense?  We do know in terms of

        14       health, it does not produce a sound health

        15       policy.  Now, let's look at what kind of

        16       financial burden are we creating on the

        17       locality.

        18                      I still argue two-thirds of a

        19       loaf that we can produce today is better than no

        20       loaf.  If the law enforcement officers want this

        21       in terms of testing with TB and hepatitis, let's

        22       give it to them today and continue the debate

        23       and bring in medical professionals around the

        24       HIV testing.  If we don't want to do it, then I

        25       suspect that maybe we're only doing this for







                                                              779

         1       political or rhetorical reasons.  We don't want

         2       to help law enforcement officers.  I submit

         3       let's separate it out, let's do something good

         4       today, and let's not wait.

         5                      ACTING PRESIDENT MAZIARZ:

         6       Senator Marcellino.

         7                      SENATOR MARCELLINO:  Yes, Mr.

         8       President.

         9                      Senator Skelos, you're to be

        10       congratulated and commended for bringing this

        11       piece of legislation to the floor.  One of the

        12       police officers you mentioned, his spouse is one

        13       of my staffers and when that incident occurred,

        14       I know the pain that the family felt.  I know

        15       the pain that they went through for a long

        16       period of time, and I know that the person who

        17       inflicted the injury on the police officer plea

        18       bargained, used it it as a ploy to get a lighter

        19       sentence.  There was no doubt about guilt and he

        20       used it as a ploy and held it out and said, I

        21       won't let you test me unless you give me a

        22       lighter sentence.  Ha! Ha! Ha! Go through the

        23       pain, have all the agony, the pain that was

        24       inflicted upon your family, I don't care.  I'm

        25       going to try to get a lighter sentence for







                                                              780

         1       myself.

         2                      I think we can eliminate that by

         3       this bill.  This bill may not be perfect, but I

         4       think it goes a long way in taking a firm step

         5       in supporting our law enforcement officials.

         6       These people are on the line daily, risking

         7       their lives in support of everyone in this

         8       chamber, and our families and those of all of

         9       our constituents.  They are to be not only

        10       applauded, but aided in any way we can and if we

        11       can make their lives easier by providing

        12       whatever information a test of an individual

        13       would provide them, then we should do it.  We

        14       should do it.  And if they need counseling, they

        15       may know that the results of these tests may not

        16       be perfect.  They know that they should get

        17       tested themselves.  The police departments will

        18       provide and offer the counseling services for

        19       their membership.  They know that.

        20                      It's amazing to me how we are

        21       willing to pass legislation for hepatitis,

        22       polio, tuberculosis, or even the common cold,

        23       anything we can imagine, but suddenly when you

        24       mention HIV, the flags go up all over the

        25       place.  Nothing can be done when you mention







                                                              781

         1       HIV.  We can't test, we can't do anything

         2       because HIV is a problem.  I don't understand

         3       that.  We should help these people too.  They

         4       may not know they're infected.  Let them know.

         5                      We went through this on the baby

         6       AIDS bill.  Let these people know they're

         7       infected.  Maybe they can change their life

         8       style and today we know there are different

         9       medications that will prevent the full-blown

        10       appearance of the disease.  It seems to me

        11       they're getting better and better.  Well, maybe

        12       the testing will get better and better as we go

        13       along, but at least let's do it.  Let's get

        14       involved.  Let's not put a mask in front of our

        15       face.  Let's not say we can do anything but when

        16       it comes it AIDS, we won't talk about it.  We

        17       won't do anything, and we dance around about

        18       costs and all this other nonsense.

        19                      Ladies and gentlemen, this bill

        20       is a good bill.  It's time we move it.  It's

        21       time the other house comes to the table with the

        22       legislation.  Like Senator Skelos said, let them

        23       pass a bill, then we'll urge them to conference

        24       it, like we did the registry bill which no one

        25       said we could have.  We have it.







                                                              782

         1                      The conference committee system

         2       works.  Let's do it.  We talk, we talk, we talk;

         3       meanwhile, there are police officers and law

         4       enforcement officials out there risking their

         5       lives, and they're put through pain and anxiety

         6       unnecessarily that we could possibly alleviate

         7       some of it, not all the of it, but some of it

         8       with this legislation.

         9                      I'm going to vote aye.  I urge

        10       all my colleagues to vote the same.

        11                      ACTING PRESIDENT MAZIARZ:  Read

        12       the last section.

        13                      THE SECRETARY: Section 4.  This

        14       act shall take effect on the 1st day of

        15       November.

        16                      ACTING PRESIDENT MAZIARZ:  Call

        17       the roll.

        18                      (The Secretary called the roll. )

        19                      SENATOR GOLD:  Mr. President.

        20                      ACTING PRESIDENT MAZIARZ:

        21       Senator Gold.

        22                      SENATOR GOLD:  Yeah, Mr.

        23       President.  I -- I didn't have the advantage of

        24       hearing a lot of the debate because of the

        25       Finance hearings, but one thing I did hear from







                                                              783

         1       Senator Skelos which I was impressed with and

         2       maybe this is a place for it.  I'm going to vote

         3       against this because I -- I believe there are

         4       some flaws in the legislation as has been

         5       explained very well by Senator Abate and Senator

         6       Leichter and others, but I would like to see a

         7       situation if the Assembly believes they have a

         8       bill that does it better, for them to pass it

         9       and send it to the conference committee.

        10                      We've talked about conference

        11       committees.  We've had, I think, one or two

        12       situations with it and maybe we really ought to

        13       do more instead of going through the process

        14       every year of having bills that come before us

        15       year after year as one-house bills.

        16                      So, Senator Skelos, I took your

        17       words very seriously.  Perhaps Senator Abate and

        18       others can persuade the Assembly to deal with

        19       this in a different way and maybe we'll resolve

        20       it into a law.  I vote in the negative.

        21                      ACTING PRESIDENT MAZIARZ:

        22       Senator Paterson, to explain your vote.

        23                      SENATOR PATERSON:  Mr. President,

        24       I was very impressed by the remarks of Senator

        25       Abate, as I always am and her offer that perhaps







                                                              784

         1       we vote on the issues that had direct

         2       consequence such as the contraction of hepatitis

         3       and tuberculosis, and felt, as she, that perhaps

         4       the issue of HIV was a little bit more complex,

         5       but since we're probably relying on the study

         6       that the New York State AIDS Institute offered

         7       in 1990, which demonstrated that AIDS testing

         8       was not reliable within six months, what I'm in

         9       formed now is that the PCR test that could be

        10       taken by the individual who is charged with

        11       possibly inflicting the disease could in the -

        12       in its immediacy reveal not only whether or not

        13       the person is HIV positive, but would reveal

        14       actually whether there's even an infinitesimal

        15       chance that the virus may be transferred.

        16                      Apparently these diseases have

        17       been pared down to 300 sets of types of diseases

        18       that could theoretically be transferred.  If

        19       that is the case, then it would mean that

        20       treatment with AZT within the first 72 hours

        21       could probably prevent the spread of the virus

        22       and in some cases there's evidence that it might

        23       kill it all.

        24                      Now, AZT has been effective in

        25       the treatment of perhaps killing off the virus







                                                              785

         1       to newborns where the treatment is given to the

         2       mother in three to seven months of pregnancy.

         3       Also there are tests that demonstrate that

         4       individuals weave back and forth between HIV

         5       positive and HIV negative and that whether or

         6       not AZT is actually affecting the process is not

         7       known.  AZT is an immuno-suppressant drug which

         8       treats an immuno-suppressant virus.  Simply that

         9       means that it exacerbates bringing down the

        10       immune system and that was the problem that the

        11       officer had that Senator Skelos referred to

        12       because if he took AZT for six months he did

        13       significant damage to his immune system without

        14       knowing the results of that particular test.

        15                      So I think this is something that

        16       merits -- merits more study.  I'm certainly

        17       willing to discuss it.  I don't think this is an

        18       annual dance.  I think this is a very serious

        19       problem in which people differ on their points

        20       of view but are united in their desire to try to

        21       bring comfort and safety to individuals who are

        22       public servants who are trying to protect us.

        23                      ACTING PRESIDENT MAZIARZ:

        24       Announce the results. I'm sorry.

        25                      Senator Paterson.







                                                              786

         1                      SENATOR PATERSON:  Senator

         2       Leichter wanted to know how I voted.  I voted

         3       no.

         4                      ACTING PRESIDENT MAZIARZ:  We

         5       knew that.

         6                      Senator DeFrancisco to explain

         7       his vote.

         8                      SENATOR DeFRANCISCO:  Yes.  I'm

         9       going to vote in the affirmative.  You know,

        10       there seems to have been an awful lot of dancing

        11       around this issue.  I have been here about four

        12       years and it's pretty obvious to me that for

        13       some reason HIV is a politically protected

        14       disease in the eyes of some.  It seems to me if

        15       you don't know all the answers, as everyone

        16       seems to admit, as to treatment, and so forth,

        17       you would at least want all the information you

        18       could possibly get to analyze the situation and

        19       why should we have a different situation with

        20       certain diseases and not for one other and

        21       whether or not we provide counseling for police

        22       officers and provide them money and all these

        23       diversions that we heard on the floor today, the

        24       fact of the matter is information is important

        25       in the treatment of anything, and if we have







                                                              787

         1       someone who has committed an act which possibly

         2       can transmit a disease no matter what it is, I

         3       think it would be important for the medical

         4       treatment to know whether or not that person has

         5       that disease, and it may very well be that that

         6       person may be released on bail, may have his

         7       case disposed of and we may never see that

         8       person again and we may never get that

         9       information.

        10                      So for that reason, I think it's

        11       very important to pass this bill in a bill that

        12       really would deal with the same issue no matter

        13       what happens -- what the disease happens to be.

        14                      ACTING PRESIDENT MAZIARZ:

        15       Announce the results.

        16                      THE SECRETARY:  Those recorded in

        17       the negative on Calendar Number 69 are Senators

        18       Abate, Breslin, Connor, Dollinger, Gold,

        19       Leichter, Markowitz, Montgomery, Nanula,

        20       Paterson, Santiago, Seabrook, Smith and Waldon.

        21       Ayes 45, nays 14.

        22                      ACTING PRESIDENT MAZIARZ:  The

        23       bill is passed.

        24                      The Secretary will read.

        25                      THE SECRETARY:  Calendar Number







                                                              788

         1       86, by Senator DeFrancisco, Senate Print 114, an

         2       act to amend the Insurance Law, in relation to

         3       the premium or compensation for giving bail

         4       bond.

         5                      SENATOR PATERSON:  Explanation.

         6                      ACTING PRESIDENT MAZIARZ:

         7       Senator DeFrancisco, an explanation of Calendar

         8       Number 86 has been requested by Senator

         9       Paterson.

        10                      SENATOR DeFRANCISCO:  Presently

        11       the law allows for premiums on bail bonds in the

        12       amount of 5 percent for the first $1,000 which

        13       means $50, 4 percent for the next 1,000, which

        14       is another $40, and 3 percent on the amounts in

        15       excess of that.

        16                      The bill would increase the

        17       premiums for the first 3,000 to 10 percent of

        18       the face value.  The next 7,000 would be 4

        19       percent, and the next 10,000 would be 6

        20       percent.

        21                      The reason for it is that

        22       presently there is reluctance in many

        23       jurisdictions, and I know for sure mine, for

        24       bail bondsmen to even bother with a $1,000 bail

        25       bond for a premium of $50 when most of that







                                                              789

         1       money gets transmitted to the insurance company

         2       who's posting the bond anyway and these bonds in

         3       smaller amounts are not being offered and as a

         4       result people are staying in jail because

         5       there's not this service that is a valuable

         6       service provided by bail bondsmen in the lower

         7       amounts of bonds, so -- and since 40 states -

         8       we have the lowest bail bond premiums in the

         9       country, and I think it is unfair to those

        10       having an alternative to cash to be given an

        11       opportunity to get out of jail while that person

        12       is accused and waiting trial, and that's the

        13       reason for the bill.

        14                      ACTING PRESIDENT MAZIARZ:  Thank

        15       you, Senator DeFrancisco.

        16                      Read the last section.

        17                      THE SECRETARY:  Section 2.  This

        18       act shall take effect immediately.

        19                      SENATOR LEICHTER:  Explanation,

        20       please.

        21                      ACTING PRESIDENT MAZIARZ:

        22       Senator Leichter, Senator DeFrancisco just gave

        23       a very detailed and excellent explanation.

        24                      Senator Paterson.

        25                      SENATOR PATERSON:  Mr. President,







                                                              790

         1       if Senator DeFrancisco would yield for a

         2       question.

         3                      ACTING PRESIDENT MAZIARZ:

         4       Senator DeFrancisco, would you yield for a

         5       question?

         6                      SENATOR DeFRANCISCO:  Yes.

         7                      ACTING PRESIDENT MAZIARZ:

         8       Senator Paterson.

         9                      SENATOR PATERSON:  I'm concerned

        10       that at the low ends where the poor and the

        11       indigent are looking for the opportunity to

        12       receive bail, that perhaps raising the

        13       percentage might be raising it out of reach, and

        14       so I was wondering if you -- have you given any

        15       thought to perhaps minimizing the bail on the

        16       lower ends and then increasing it at other

        17       points because basically the point that you're

        18       making -- your legislation is quite good and at

        19       this point, particularly with respect to where

        20       the insurance companies see this, it is valid.

        21                      SENATOR DeFRANCISCO:  Well, it is

        22       a sliding scale.  The first 10 -- excuse me.

        23       The first 3,000 is 10 percent, then it goes down

        24       to 4 percent for the next 7- and it's a sliding

        25       scale, but as far as the low end, that's where







                                                              791

         1       the problem arises.  If a judge sets a bail of

         2       $1,000 cash, $1,000 bond, I think it's easier

         3       under the bill to raise $100 if you get a bail

         4       bond at 1,000 rather than try to find $1,000 in

         5       cash and that's -- I guess the alternative of

         6       not having that bond is a cash bail or pretrial

         7       release which we do use substantially in

         8       Onondaga County through the Probation Department

         9       without having to raise any bond.  So if there's

        10       an indigent who's not a risk, the Probation

        11       Department is likely to take that individual in

        12       its program.

        13                      ACTING PRESIDENT MAZIARZ:

        14       Senator Paterson.

        15                      SENATOR PATERSON:  Thank you,

        16       Senator.

        17                      ACTING PRESIDENT MAZIARZ:  Read

        18       the last section.

        19                      THE SECRETARY:  Section 2.  This

        20       act shall take effect immediately.

        21                      ACTING PRESIDENT MAZIARZ:  Call

        22       the roll.

        23                      (The Secretary called the roll.)

        24                      THE SECRETARY:  Ayes 57, nays 2,

        25       Senators Abate and Leichter recorded in the







                                                              792

         1       negative.

         2                      ACTING PRESIDENT MAZIARZ:  The

         3       bill is passed.

         4                      The Secretary will read.

         5                      THE SECRETARY:  Calendar Number

         6       93, by Senator Seward, Senate Print 1182.

         7                      SENATOR SKELOS:  Lay it aside for

         8       the day.

         9                      ACTING PRESIDENT MAZIARZ:  The

        10       bill is laid aside for the day.

        11                      THE SECRETARY:  Calendar Number

        12       94, by Senator Volker, Senate Print 87-A, an act

        13       to amend the Penal Law, in relation to criminal

        14       possession of marijuana in the third degree.

        15                      ACTING PRESIDENT MAZIARZ:  Read

        16       the last section.

        17                      THE SECRETARY:  Section 2.  This

        18       act shall take effect on the first -

        19                      ACTING PRESIDENT MAZIARZ:  Excuse

        20       me.  Senator Leichter.

        21                      SENATOR LEICHTER:  I'm just

        22       voting negative.

        23                      THE SECRETARY:  Section 2.  This

        24       act shall take effect on the first day of

        25       November.







                                                              793

         1                      ACTING PRESIDENT MAZIARZ:  Call

         2       the roll.

         3                      (The Secretary called the roll.)

         4                      ACTING PRESIDENT MAZIARZ:

         5       Senator Waldon, to explain his vote.

         6                      SENATOR WALDON:  Let me apologize

         7       to Senator Volker because he and I concurred on

         8       this issue and we're going to try to bring some

         9       light to our respective positions regarding the

        10       use of marijuana and, in fact, what is

        11       characterized as the sale of marijuana when

        12       young people -- thank you very much, Mr.

        13       President.  I apologize for that -- giving away

        14       to others.

        15                      It is my belief that we can no

        16       longer take a position which allows our young

        17       people to think that we're sending them a signal

        18       that the use of something, as they characterize

        19       it, as mild as marijuana is acceptable

        20       behavior.

        21                      It is my belief that this

        22       experimentation with marijuana all too often

        23       leads to the use of stronger drugs and certainly

        24       those who are looking to create a clientele will

        25       give away -- and everyone who has ever read







                                                              794

         1       anything about drugs knows this to be true -

         2       will give away drugs in order to create a client

         3       base, and so if we in the Legislature recognize

         4       that these are potential dangers to our young

         5       people, we cannot afford to be soft regarding

         6       even something that the youth of America claim

         7       is as soft a drug as marijuana.

         8                      So I encourage my colleagues to

         9       recognize that even social experimentation with

        10       this substance creates a potential danger, not

        11       just to those who use it but to those who

        12       surround them and all of society, and I would

        13       encourage you to join me and others in this

        14       chamber who feel that the distribution, as a

        15       gift or otherwise, to peers is just as dangerous

        16       as someone who's running a business of selling

        17       drugs and we should stop it at all costs.

        18                      So I encourage you to support

        19       this and for us to take a step and send a signal

        20       that even the use of marijuana is unacceptable

        21       behavior to us as a Legislature.

        22                      I thank you, Mr. President, and I

        23       apologize, Senator Volker.

        24                      ACTING PRESIDENT MAZIARZ:

        25       Announce the results.







                                                              795

         1                      THE SECRETARY:  Ayes 58, nays 1,

         2       Senator Leichter recorded in the negative.

         3                      ACTING PRESIDENT MAZIARZ:  The

         4       bill is passed.

         5                      Senator Skelos, that completes

         6       the controversial reading of the calendar.

         7                      SENATOR SKELOS:  Mr. President,

         8       if we could return to reports of standing

         9       committees, I believe there's a report of the

        10       Rules Committee at the desk.

        11                      ACTING PRESIDENT MAZIARZ:  The

        12       Secretary will read.

        13                      THE SECRETARY:  Senator Bruno,

        14       from the Committee on Rules, reports the

        15       following bill direct to third reading:

        16                      Senate Print 1663, by Senator

        17       Goodman, an act to amend Chapter 912 of the Laws

        18       of 1920, relating to allowing and regulating

        19       boxing, sparring and wrestling matches.

        20                      ACTING PRESIDENT MAZIARZ:

        21       Senator Skelos.

        22                      SENATOR SKELOS:  I move we accept

        23       the report of the Rules Committee.

        24                      ACTING PRESIDENT MAZIARZ:  All in

        25       favor of accepting the report of the Rules







                                                              796

         1       Committee signify by saying aye.

         2                      (Response of "Aye".)

         3                      Opposed, nay.

         4                      (There was no response.)

         5                      The report is accepted.

         6                      Senator Skelos.

         7                      SENATOR SKELOS:  Can we take up

         8       the Rules report at this time.

         9                      ACTING PRESIDENT MAZIARZ:  The

        10       Secretary will read.

        11                      THE SECRETARY:  Senator Goodman

        12       moves to discharge from the Committee on

        13       Tourism, Recreation and Sports Development

        14       Assembly Bill Number 2718 and substitute it for

        15       the identical Third Reading Calendar 127.

        16                      ACTING PRESIDENT MAZIARZ:  The

        17       substitution is ordered.

        18                      The Secretary will read.

        19                      THE SECRETARY:  Calendar Number

        20       127, by Member of the Assembly Kaufman, Assembly

        21       Print 2718, an act to amend Chapter 912 of the

        22       Laws of 1920, relating to allowing and

        23       regulating boxing, sparring and wrestling

        24       matches.

        25                      SENATOR LEICHTER:  Explanation.







                                                              797

         1                      ACTING PRESIDENT MAZIARZ:

         2       Senator Goodman, an explanation has been

         3       requested from Senator Leichter.

         4                      SENATOR GOODMAN:  Mr. President,

         5       our action today culminates what I think could

         6       fairly be called a crusade of year long length

         7       to do away with a sport that I have

         8       characterized as nothing more than vicious human

         9       cockfighting.

        10                      "Ultimate fighting", as it is

        11       known, is a fight which has just recently been

        12       held in Alabama and which had a sign above the

        13       ring, I am informed, which said "Anything goes",

        14       and that was not an exaggeration, Mr. President,

        15       because this form of fighting is not anything

        16       with which anyone in this room would normally be

        17       familiar.  It is not boxing.  It is not

        18       wrestling.  It is neither the show time form of

        19       wrestling, nor the Greco-Roman form of

        20       wrestling.  It is a vicious confrontation of two

        21       individuals intent literally upon destroying one

        22       another.

        23                      Anyone who has seen one of these

        24       contests -- and I'm not sure how many of you

        25       have had occasion to either rent the available







                                                              798

         1       VHS tape from your local tape rental stores or

         2       whether you've seen them on pay television or,

         3       perish the thought, actually attended one, will

         4       know there's an audience screaming for blood and

         5       that invariably their screams are well gratified

         6       by virtually the action that occurs.

         7                      If you'll half close your eyes

         8       and visualize a television screen, I'll tell you

         9       what you can see if you watch an "ultimate

        10       fight".  A typical one would involve two men

        11       charging at one another and one will raise his

        12       foot in a kick to the throat or the head of his

        13       opponent and down the opponent on the mat, who

        14       will then leap onto the opponent.  They may

        15       grapple for a time, and in the particular film

        16       to which I refer which I will show you gladly in

        17       my office, or at least unhappily in my office

        18       since it's quite revolting, there is a

        19       deliberate effort to take a fist and to pummel

        20       directly the vital parts which are situated

        21       between the legs of one contestant.  This is

        22       done repeatedly and viciously.  It is done with

        23       no other intent than to visit the worst kind of

        24       injury upon the opponent.  There is eye

        25       gouging.  There is head butting.  There is every







                                                              799

         1       form of attempt by one human being to literally

         2       destroy another and the match is invariably

         3       concluded with blood and gore all over the mat.

         4                      Now, the proponents of this type

         5       of contest contend that this is really a very

         6       innocent form of sport because no one has yet

         7       been killed, but let me say that in March of

         8       1956, your Senate Investigations Committee held

         9       a hearing and called before it medical experts

        10       to comment upon the films which we showed them

        11       of these contests and they commented that in all

        12       probability deaths would occur in the ring and

        13       at least very severe injury could result in a

        14       significant number of cases.  These opinions

        15       were being delivered by sophisticated ringside

        16       physicians and other neurologists who observed

        17       the action and felt that it is absolutely

        18       subhuman.

        19                      Now, Mr. President, as bad as

        20       this is for the contestants participating in the

        21       contest, in my judgment, it has an even worse

        22       effect, and that is the abominable example which

        23       it sets for the youngsters of the coming

        24       generation upon whom this Legislature votes $9

        25       billion annually to educate and uplift them for







                                                              800

         1       a constructive role in society.  These

         2       youngsters are treated to an exhibition of the

         3       worst kind of sportmanship.  In fact, they're

         4       treated to what is nothing more nor less than a

         5       barroom brawl or an alley fight of the lowest

         6       conceivable type.

         7                      They're given the impression that

         8       this is something which should be emulated and

         9       the result could very well be behavior which

        10       will result in injury to youngsters fighting in

        11       a school yard or other places where they think

        12       that these types of tactics ought to be

        13       encouraged and utilized by them.

        14                      How many times do we see a

        15       youngster with a toy gun shooting another

        16       youngster?  This is not a toy gun situation.

        17       This is one in which kicks to various sensitive

        18       body parts where the exposed Adam's apple is hit

        19       and this can be a killing blow, and I just

        20       cannot tell you -- words fail to describe the

        21       depth of my feeling as to the undesirability of

        22       this type of contest.

        23                      Mr. President, I'm very proud

        24       that the Senate has finally seen fit to come

        25       forward and to take action which will provide a







                                                              801

         1       surgical strike to remove this cancer from the

         2       body politic.  We've done this in some

         3       successive steps.

         4                      First, we passed a bill which

         5       placed this type of fighting under regulation.

         6       There's a misapprehension about that bill.  Some

         7       thought that it was a bill to permit the

         8       fighting.  The fighting has always been

         9       permitted and the bill ought to regulate it.

        10                      The next step was that the State

        11       Athletic Commission then proceeded to issue a

        12       set of very stringent regulations which, when

        13       they were about to be applied in Buffalo last

        14       week, resulted in the fight promoters removing

        15       the fight from Buffalo and bringing an action in

        16       federal court for the purpose of seeing that

        17       these fights were permitted to continue.

        18                      The federal district judge ruled

        19       that the regulations of the State Athletic

        20       Commission were appropriate and that they should

        21       be enforced and not drive the fight out of the

        22       state, but that's not sufficient because various

        23       evasive techniques would undoubtedly be

        24       identified by various of the promoters of these

        25       contests to keep the sports in New York, which







                                                              802

         1       is after all the Empire State where some of the

         2       greatest boxing matches occur, and let it be

         3       noted I happen to be a fan of good professional

         4       boxing, and I would remind you that the Senate

         5       Investigations Committee suspended boxing for 60

         6       days in this state in an earlier investigation

         7       when a fighter was killed in the ring and we

         8       reached the conclusion that there was inadequate

         9       medical supervision of these contests.

        10                      But, Mr. President, to wrap this

        11       up, let me just say this is the worst kind of

        12       conceivable public exhibition.  People have

        13       said, Well, shouldn't people have the right to

        14       do anything they please?  Well, should they?

        15       Should people have the right to stage knife

        16       fights in a ring?  Should I have the right to

        17       take a needle and insert it into your eyeball in

        18       a contest to see whether I can impair your

        19       vision?

        20                      There are certain things which

        21       society sets standards for and precludes and

        22       says "this is not acceptable behavior."  This is

        23       surely Exhibit A of that type of stricture which

        24       we need to apply in the interest of good

        25       government and better civic understand- ing of







                                                              803

         1       what constitutes good, clean fighting and a

         2       contest that's properly supervised.

         3                      And so, Mr. President, we've

         4       reached the point where we now feel it is

         5       imperative that we have a sweeping definitive

         6       block to this.  The Assembly has passed this

         7       bill.  The Governor, the Attorney General, the

         8       mayor of the city of New York, innumer- able

         9       elected officials have rallied to this standard,

        10       and frankly, it's due to the outraged public

        11       outcry that this whole action is now possible

        12       this afternoon.

        13                      I want to commend the Senate for

        14       considering this measure, and I want to urge

        15       upon my colleagues immediate and sweeping action

        16       to put an end to this scourge forthwith.

        17                      ACTING PRESIDENT HOLLAND:

        18       Senator Stachowski.

        19                      SENATOR STACHOWSKI:  Just, Mr.

        20       President, a couple of comments on Senator

        21       Goodman's remarks about ultimate fighting.

        22                      SENATOR GOODMAN:  Mr. President,

        23       may I be forgiven?  Senator, would you yield for

        24       one moment?  There's a rather vital part of

        25       legislative intent that I want to be sure is







                                                              804

         1       spread upon the record.  It will take 30

         2       seconds.

         3                      SENATOR STACHOWSKI:  Actually you

         4       had most of the votes, Senator, but if you keep

         5       talking you might start losing them.

         6                      SENATOR GOODMAN:  I'll take my

         7       chances on that.

         8                      ACTING PRESIDENT HOLLAND:  Do you

         9       yield, Senator?

        10                      Senator Goodman.

        11                      SENATOR GOODMAN:  I do want to

        12       say, Senator, that there is one piece of

        13       legislative intent which must be placed upon the

        14       record very explicitly, and that is, there is no

        15       intention to block this form of fighting on

        16       television because we do not have the right

        17       under the First Amendment to accomplish that

        18       effect.

        19                      Therefore, let it be understood

        20       that in the legislative intent of the Governor

        21       whose program bill this is, and I as the sponsor

        22       in the Senate, and I believe the Assembly would

        23       say the same thing, cable television can

        24       continue.  We have no right to block this under

        25       the U.S. Constitution and we don't intend to do







                                                              805

         1       that.

         2                      ACTING PRESIDENT HOLLAND:

         3       Senator Stachowski.

         4                      SENATOR STACHOWSKI:  Again, Mr.

         5       President, I would like to try to make just a

         6       couple of comments on Senator Goodman's

         7       remarks.  I'm not going to vote against the

         8       bill, but I would like to point out that the

         9       fight last week was in Niagara Falls and the

        10       people of Niagara Falls were very upset at being

        11       referred to as Buffalo because it's 25 miles

        12       away.

        13                      Secondly, I don't know which

        14       famous fights he's talking about in New York

        15       lately.  It could be Riddick Bowe or the fight

        16       that followed after the last -- you know, after

        17       the big -- a lot of fights.  So based on

        18       security in the city of New York on boxing

        19       matches now, I don't know what's worse, ultimate

        20       fighting or going to a boxing match in Madison

        21       Square Garden.

        22                      So hopefully they'll clean up

        23       that while we're cleaning up ultimate fighting,

        24       and then we'll have it back to regular boxing

        25       that we enjoyed in New York State and that I







                                                              806

         1       know Floyd Patterson wants to bring back to New

         2       York State.

         3                      I vote aye on the bill.

         4                      ACTING PRESIDENT HOLLAND:

         5       Senator Dollinger.

         6                      SENATOR DOLLINGER:  Mr.

         7       President, will Senator Goodman yield just to

         8       two quick questions?

         9                      ACTING PRESIDENT HOLLAND:

        10       Senator?

        11                      SENATOR GOODMAN:  Yes.

        12                      ACTING PRESIDENT HOLLAND:  The

        13       Senator yields.

        14                      SENATOR DOLLINGER:  Senator, you

        15       said that the bill provides that it is not meant

        16       to impair television, televising these images,

        17       is that correct?

        18                      SENATOR GOODMAN:  That's correct.

        19                      SENATOR DOLLINGER:  Would that

        20       apply to Pay Per View as well?

        21                      SENATOR GOODMAN:  Yes, it would.

        22                      SENATOR DOLLINGER:  So it's not

        23       intended to kick these matches off of Pay Per

        24       View.

        25                      SENATOR GOODMAN:  That's my







                                                              807

         1       judgment.  We don't have that power under the

         2       First Amendment, Senator, and therefore that's

         3       not its intent.

         4                      SENATOR DOLLINGER:  If I read

         5       your bill, your bill is certainly broad enough

         6       to include Pay Per View, is it not?

         7                      SENATOR GOODMAN:  We've

         8       explicitly stated the legislative intent.  So

         9       there can be no misunderstanding of the wording

        10       of the bill.

        11                      SENATOR DOLLINGER:  But there's

        12       nothing in the term of "legislative intent" in

        13       this bill that mentions it's not intended to

        14       apply to Pay Per View or any other type of

        15       televised -- I understand, Senator, you as the

        16       sponsor of this legislation and a court looking

        17       at the records of the deliberations of this body

        18       would conclude that you as the sponsor did not

        19       intend to affect Pay Per View but there's

        20       nothing in this document that would prevent the

        21       prosecution of Time Warner or MSG for putting on

        22       Pay Per View an ultimate fighting match because

        23       the language is broad enough.  It says you

        24       advance combative activity when you -- conduct

        25       directed toward the creation, establishment or







                                                              808

         1       performance toward the aforementioned premises,

         2       paraphernalia, equipment, or apparatus, could

         3       include television cameras, or towards the

         4       solicitation or inducement of persons to attend

         5       or participate.  If it's participate, then they

         6       could be out soliciting people to watch Pay Per

         7       View.  That's a solicitation to participate in

         8       ultimate fighting to pay for it.  It's just like

         9       buying a ticket.  Isn't that correct, Senator?

        10                      SENATOR GOODMAN:  Your

        11       interpretation is one which I think is laid to

        12       rest by the very explicit statement I just made,

        13       Senator.

        14                      SENATOR DOLLINGER:  Okay.  I hope

        15       that -- again, through you, Mr. President -

        16       that a court -- one of the things that we don't

        17       do is make debate available to the court so that

        18       they can figure out what statutory intent is all

        19       about in New York.  Maybe we should do that,

        20       because I certainly read this as being broad

        21       enough to affect Pay Per View here in this

        22       state.

        23                      Let me ask one other question,

        24       Senator.  Is it your intention -- again through

        25       the Chair, is it your intention to ban







                                                              809

         1       promotional activities of ultimate fighting in

         2       this state even if the fight doesn't occur in

         3       New York?

         4                      SENATOR GOODMAN:  Is it my

         5       intention to do that?  In such fashion as it may

         6       not conflict with the First Amendment to the

         7       Constitution, that's certainly our intention.

         8       I'm not sure that under the free speech it's

         9       guaranteed that if there's television

        10       advertising, for example, would not be within

        11       the ambit of the bill to prevent that.

        12                      SENATOR DOLLINGER:  Again,

        13       through you, Mr. President.  Suppose there's an

        14       ultimate fight in New Jersey.  Can they promote

        15       it in New York City under this bill?

        16                      SENATOR GOODMAN:  The answer is

        17       that if it's a free speech issue that they can,

        18       yes.

        19                      SENATOR DOLLINGER:  Okay.  So if

        20       the fight isn't held here in New York, then they

        21       can still do all the promotional activities.

        22                      SENATOR GOODMAN:  I'm not sure

        23       why they would want to do that but they could.

        24                      SENATOR DOLLINGER:  Well, they

        25       would obviously be soliciting people from New







                                                              810

         1       York to go to the fight in New Jersey.

         2                      SENATOR GOODMAN:  That's

         3       certainly possible.  Free speech guarantees your

         4       right to do that, as well as to invite people to

         5       a pornography show and a number of others

         6       things, which you would never wish to attend,

         7       Senator.

         8                      SENATOR DOLLINGER:  Again through

         9       you, Mr. President.  I, like Senator Stachowski,

        10       am not going to vote against this bill.  I think

        11       what's happened here is that Senator Goodman has

        12       given the ultimate punch to ultimate fighting

        13       here and knocked them out of New York State,

        14       which I agree with.

        15                      I am concerned, however, because

        16       I think the issue is that Pay Per View, the

        17       television implications and the question of to

        18       what extent you can be a promoter in New York

        19       State even though the fight occurs some place

        20       else, Senator, you're much more familiar with

        21       that.  You come from the tri-state region.  You

        22       know that region.  You know the possibility of

        23       interstate problems as well.  I'm willing to

        24       give the final punch to ultimate fighting, but

        25       I'm not sure that this -- I think that this bill







                                                              811

         1       could use a little further drafting to better

         2       define exactly what we're trying to weed out of

         3       the process.

         4                      ACTING PRESIDENT HOLLAND:

         5       Senator Leichter.

         6                      SENATOR LEICHTER:  Yes, Mr.

         7       President.  Thank you.

         8                      I wanted to ask Senator Goodman a

         9       question but before I do, I really want to say,

        10       Senator, I commend you for the fight that you've

        11       waged without resorting to any kicks to vital

        12       parts or anything else to get this bill passed,

        13       and I think it's important and I certainly

        14       support you on it.

        15                      I just want to say, Senator, if

        16       you would be so good to yield, I was concerned

        17       about the questions that Senator Dollinger

        18       raised.  I see this is the Governor's bill.

        19       Maybe it wasn't drafted by you, but I just say

        20       it's not a carefully drafted bill because

        21       certainly your reading of this bill would seem

        22       to imply that any activity in this state related

        23       to ultimate fighting, wherever, in Alabama, New

        24       Jersey, and so on, could be a criminal act, and

        25       I don't think it's a First Amendment issue at







                                                              812

         1       all.  It may involve interstate commerce, and so

         2       on, but quite possibly some prosecutor might

         3       proceed under this bill.  I just think it could

         4       have been more carefully drafted, but let me ask

         5       you another question which sort of puzzles me.

         6                      The bill has a reference to

         7       martial arts and the definition of martial arts

         8       is in reference to organizations that put on

         9       martial arts.  I don't understand why that's in

        10       the bill at all.

        11                      SENATOR GOODMAN:  What I think

        12       you're referring to is the definition which

        13       commences on line 6 which says "A combative

        14       sport shall mean any professional match or

        15       exhibition other than boxing, sparring,

        16       wrestling or martial arts," wherein contestants

        17       do various things.  It is excluding martial arts

        18       which, as you know, are Judo, Tae Kwon Do or

        19       other martial arts as they are so-called, not

        20       boxing, not wrestling, but that special category

        21       of Jiu-Jitsu, and the like.  So they are

        22       excluded from this bill.  A Jiu-Jitsu match or a

        23       Tae Kwon Do match would not be -

        24                      SENATOR LEICHTER:  I understand

        25       that, Senator, but what I'm puzzled at is you go







                                                              813

         1       ahead and you define martial arts just as

         2       matches or exhibitions sanctioned by a number of

         3       organizations.  So martial arts, as I understand

         4       it, is in schools.  There's martial arts

         5       exhibits, and so on.  It may be done by clubs,

         6       and so on.

         7                      SENATOR GOODMAN:  That's the

         8       exclusionary clause.  They are excluded from the

         9       regulatory ambit of the bill.

        10                      SENATOR LEICHTER:  Well, it says

        11       that martial arts shall include any professional

        12       match and exhibitions.

        13                      SENATOR GOODMAN:  Other than

        14       boxing, wrestling or -

        15                      SENATOR LEICHTER:  No.  I see

        16       that, Senator.  I'm referring to line 10 which

        17       says "martial arts shall include any

        18       professional match, exhibition sanctioned by any

        19       of the following exhibitions."

        20                      SENATOR GOODMAN:  And they are,

        21       therefore, excluded from the

        22       regulatory -

        23                      SENATOR LEICHTER:  I understand.

        24       My point is, Senator, that martial arts -- I

        25       think some of our schools have martial arts







                                                              814

         1       exhibits.  Clubs have martial arts exhibits that

         2       in no way have any relationship or reference to

         3       these particular organizations, and it would

         4       seem to me that you're now raising a question

         5       whether these martial arts activities can

         6       proceed.

         7                      SENATOR GOODMAN:  I think quite

         8       the reverse.  I think what this does explicitly

         9       is to exclude those types of martial arts from

        10       the prohibitions contained in the bill.

        11                      SENATOR LEICHTER:  Well -- but

        12       isn't it true, Senator, it's only the martial

        13       arts that are sanctioned in exhibitions by these

        14       organizations?  If Junior High School 141 has a

        15       martial arts exhibit -

        16                      SENATOR GOODMAN:  It just says it

        17       shall include them.  It does not say that it

        18       shall not include other forms of martial arts.

        19       I don't think that's a problem, Senator.

        20                      SENATOR LEICHTER:  Well, it says

        21       -- if I may, Senator, it says that others may

        22       be included, but you then have to apply to the

        23       -- I think to the -- you have to apply to the

        24       boxing commission.

        25                      I mean, I must say, with all due







                                                              815

         1       respect, it's important what you've achieved.

         2       We certainly have expressed our intent.  I just

         3       wish that the bill had been drafted maybe a

         4       little more carefully and clearer because I

         5       think it's going to raise some problems, and I

         6       must say that last year as many of the members

         7       in this house, I thought I voted for a bill to

         8       ban ultimate fighting, and I know that was your

         9       intent and I was somewhat embarrassed to read in

        10       the paper that we had actually sanctioned it and

        11       authorized it.  So I -- and while that certainly

        12       wasn't your intent and you brought it -- tried

        13       to bring it under regulation -- I know the whole

        14       sad history, and I don't mean this in any way as

        15       any criticism of you because you tried to do

        16       everything you possibly could.  I'm just saying

        17       how we word the bills obviously is very

        18       important irrespective of what our intent may

        19       be, and I think some of us were embarrassed last

        20       year.  Now, somebody could say, Well, you should

        21       have to read the bill more carefully last year,

        22       but it was at the end of the session and I saw

        23       Senator Goodman, and I knew your good fight and

        24       your intentions and they certainly are clear as

        25       regard to this bill, but I just say to you that







                                                              816

         1       I think that this bill may come back to create

         2       some problems for us.  At least it will stop the

         3       ultimate fighting that has been planned for this

         4       state and in that respect it's good, but I think

         5       that we ought to be more careful, frankly, than

         6       we are in this bill.

         7                      SENATOR GOODMAN:  If that's a

         8       question, let me respond briefly.  As it turns

         9       out, looking back in retrospect, last year's

        10       bill accomplished a very salutary purpose.  It

        11       placed under the regulatory authority, the

        12       absolute authority of the State Athletic

        13       Commission, this form of contest.  In so doing

        14       what it inadvertently did, I grant you, is to

        15       say that an individual municipality did not have

        16       the right to ban it unilaterally but that would

        17       require action by the State Athletic Commission

        18       but let's follow what actually happened.

        19                      The State Athletic Commission

        20       promulgated rules that were so strict that they

        21       were an indispensable step toward the ultimate

        22       result that we've achieved today -- or will

        23       achieve, I trust, in a matter of moments, which

        24       is the passage of the bill.

        25                      Now, as far as this is concerned,







                                                              817

         1       your concern about the exclusion, I think is

         2       explicitly taken care of by simply trying to

         3       define what martial arts consists of, and in so

         4       doing it speaks of several organizations which

         5       have martial arts in their curricula, if you

         6       please, and in so doing it does not preclude

         7       other definitions from being applied.

         8                      ACTING PRESIDENT HOLLAND:

         9       Senator Dollinger.

        10                      SENATOR DOLLINGER:  Mr.

        11       President, would Senator Goodman yield to just

        12       one more question, an information question?

        13                      ACTING PRESIDENT HOLLAND:  The

        14       Senator yields.

        15                      SENATOR DOLLINGER:  Senator, are

        16       the wrestling matches that are televised, those

        17       -- I don't know whether they're called

        18       professional or whether they're fake or whether

        19       they're entertainment -- I know your bill

        20       mentions the fact that wrestling matches are not

        21       going to be included, but my question is are the

        22       wrestling that appear on WWF and all those other

        23       -- are they licensed by the state of New York?

        24                      SENATOR GOODMAN:  The answer is

        25       that they are and they are, as you said -- what







                                                              818

         1       was the adjective you used?  I'll call them

         2       farcical.

         3                      SENATOR DOLLINGER:  The reason

         4       why I asked the question is because they don't

         5       appear to have any rules.  Do those matches have

         6       rules about where you can punch and kick?  We're

         7       not putting Hulk Hogan out of business, are we?

         8                      SENATOR GOODMAN:  The whole thing

         9       is obviously a sham for entertainment purposes

        10       and what seems to be happening is not happening

        11       at all.  It's an illusion, a chimera.

        12                      SENATOR DOLLINGER:  I understand

        13       that.  I want to make sure that that illusion or

        14       that form of entertainment isn't captured by

        15       this bill.  You don't intend to affect any of

        16       that, what we call professional wrestling.

        17                      SENATOR GOODMAN:  Perish the

        18       thought.

        19                      SENATOR DOLLINGER:  Perish the

        20       thought.  Long live Hulk Hogan.

        21                      ACTING PRESIDENT HOLLAND:

        22       Senator Paterson.

        23                      SENATOR PATERSON:  Mr. President,

        24       if Senator Goodman would yield.  I thought I had

        25       the answer to Senator Dollinger's question that







                                                              819

         1       the professional wrestling matches, as they're

         2       classified by the New York State Athletic

         3       Commission, are considered to be exhibitions,

         4       whereas the boxing matches are considered to be

         5       contests.

         6                      So, Senator Dollinger, the

         7       wrestling matches are more like these sessions.

         8       They're exhibitions.  We already know the

         9       outcome.

        10                      (Laughter)

        11                      ACTING PRESIDENT HOLLAND:  Does

        12       any further Senator wish to speak?  Read the

        13       last section -- Senator Stachowski.

        14                      SENATOR STACHOWSKI:  Just for a

        15       serious note, I can explain to Senator Dollinger

        16       having taken part in putting together a

        17       wrestling thing last year in Buffalo where they

        18       raised a lot of money for charity -- Buffalo,

        19       big difference, 25, 26 miles apart, but they get

        20       sanctioned by the state commission -- Athletic

        21       Commission and the State Athletic Commission

        22       actually usually has people there not only to

        23       watch the matches but also they count the gate

        24       to make sure they're getting their proper share

        25       of what they're supposed to get.  So it's very







                                                              820

         1       regulated right down to the ticket dollars.

         2                      ACTING PRESIDENT HOLLAND:  Read

         3       the last -- Senator Hoffmann.

         4                      SENATOR HOFFMANN:  I have been

         5       very quiet for awhile here.

         6                      Mr. President, I have some

         7       familiarity with other forms of fisticuffs from

         8       two different experiences since my legislative

         9       tenure began, and this is an area on which I

        10       want to apply a little bit of reasoning before I

        11       arrive at a decision.  Now I'm just going to

        12       muse aloud for a minute on some of the things

        13       that I've seen and observed in this chamber and

        14       related to these activities.

        15                      In my first, I believe, term in

        16       the Senate I had the distinction of being

        17       appointed to a Minority task force on

        18       professional wrestling.  The late Senator Abe

        19       Bernstein was every bit as concerned about

        20       professional wrestling at that time as is the

        21       good Senator from Manhattan today about the

        22       ultimate fighting championship, and I remember

        23       several hearings -- well, one hearing that was

        24       held -- one hearing that was held in New York

        25       City discussing the wrestling exhibitions and







                                                              821

         1       there were a number of testimonies that came

         2       through that hearing that stick in my mind, none

         3       more so than the gentleman who described how it

         4       was demeaning to him as an individual to be in

         5       these exhibitions and be forced to take a fall

         6       or be told by the promoter what the outcome

         7       would be and he appealed to Senator Stachowski,

         8       Senator Masiello, myself and Senator Montgomery,

         9       along with Senator Bernstein at the Minority

        10       Task Force on Professional Wrestling for

        11       guidance, and we were pleased because as members

        12       of the Senate Minority, people don't often ask

        13       us for guidance, and we told them that if they

        14       were concerned about their safety and about

        15       their activity, clearly they could organize and

        16       they could do something to defend their own

        17       honor and they could create more stature to

        18       their sport.  I'm not sure that they followed

        19       our direction too well.

        20                      Several of them came up to a

        21       couple of us after the hearing was over and

        22       asked if we would be willing to help them create

        23       a wrestling union and there are days when I've

        24       wondered what course that might have taken had I

        25       taken them up on that offer, but the wrestlers







                                                              822

         1       clearly had it within their power to enter or

         2       not enter that particular activity.

         3                      The other area where I have

         4       learned a little bit about the entertainment

         5       world of the fight game comes from Canastota,

         6       New York which I have proudly represented now

         7       going into the 13th year.  In Canastota, the

         8       town fathers and mothers and many of the

         9       business leaders asked me as a newly elected

        10       Senator to help complete something that had

        11       begun by my pred... begun by my predecessor,

        12       Senator Auer, and that was the Boxing Hall of

        13       Fame.

        14                      Now, all of you have noticed as

        15       you drive west across the Thruway, or if you

        16       drive east, the signs are on both sides of the

        17       road, the International Boxing Hall of Fame in

        18       Canastota, New York, attracts thousands of

        19       people ever year for its induction ceremony.

        20       Canastota is the home of the Boxing Hall of Fame

        21       because it is the place where two world

        22       champions grew up, Carmen Basilio and Billy

        23       Backus and they were related.  Carmen is Billy's

        24       uncle and there are a large number of men in

        25       that town who have been involved in boxing both







                                                              823

         1       as professionals and amateurs for many years and

         2       the town wanted this facility.  They wanted a

         3       museum to memorialize boxing because they

         4       believed that this was an important part of

         5       their culture and they also recognized something

         6       that we should not overlook here today.  It is

         7       an important part of tourism activity.  There

         8       are so many people coming into the Boxing Hall

         9       of Fame that hotels are full all the way from

        10       Utica to Syracuse when the induction ceremonies

        11       take place every year.

        12                      So I think before we casually

        13       dismiss the whole ultimate fighting concept as

        14       one that is just blood and guts or is blood

        15       thirsty or some of the words that Senator

        16       Goodman has used to describe it, we should

        17       recognize that there are many people out there

        18       who have decided that this is a legitimate form

        19       of entertainment and it is a sport that is

        20       regulated.

        21                      Now, while I'm musing aloud here,

        22       I must also ask if, in fact, we have an Athletic

        23       Commission in this state with commissioners

        24       confirmed by this Senate, then why do we need to

        25       supersede their power and impose additional







                                                              824

         1       regulations?

         2                      It seems to me we're engaged in a

         3       discussion about ending a problem that doesn't

         4       exist.  The Athletic Commission has already

         5       taken care of this.  They have impos- ed some

         6       restrictions.  Their restrictions were upheld by

         7       the court over the wishes of the promoters and

         8       the promoters chose to go elsewhere.

         9                      That is not to say, however, that

        10       another athletic commission, or this athletic

        11       commission, upon further review, might find

        12       another arrangement, different types of

        13       regulations that would be suitable both to the

        14       promoters and to the general public and the

        15       ultimate fighting games could take place in New

        16       York State once again to the economic benefit of

        17       New York State, and I think it's a very

        18       important question that some of my colleagues

        19       have raised, and I know one in the Assembly

        20       raised as well.  If it cannot be regulated on

        21       Pay Per View, if we have no control over where

        22       these events are taking elsewhere, if it's a

        23       national issue and they've chosen not to do

        24       anything about it in Washington, why do we want

        25       to unilaterally exclude ourselves from any of







                                                              825

         1       the economic benefits that would come from

         2       staging the ultimate fighting championships here

         3       in New York State?

         4                      So I'm very much troubled by the

         5       fact that we have so many other pressing matters

         6       that we could be dealing with here in New York

         7       State.  There are so many unreasonable things

         8       that people do to each other that we could be

         9       paying attention to ahead of this one.  Why at

        10       five minutes of 5:00 this afternoon, instead of

        11       talking about the budget or the other state

        12       agencies, we want to ban ultimate fighting in

        13       New York State?

        14                      It seems not a terribly

        15       productive use of our time and one that's a

        16       little bit shortsighted since there is already

        17       in place an entity duly empowered to regulate

        18       this issue.  I don't think it requires our

        19       attention.

        20                      ACTING PRESIDENT HOLLAND:  Read

        21       the last section.

        22                      THE SECRETARY:  Section 3.  This

        23       act shall take effect immediately.

        24                      ACTING PRESIDENT HOLLAND:  Call

        25       the roll.







                                                              826

         1                      (The Secretary called the roll.)

         2                      THE SECRETARY:  Ayes -

         3                      ACTING PRESIDENT HOLLAND:

         4       Senator DeFrancisco to explain his vote.

         5                      SENATOR DeFRANCISCO:  I'm going

         6       to vote yes, but I -- I want to mention just a

         7       couple of things that were mentioned in the

         8       debate that I think were a little bit

         9       inaccurate.

        10                      First of all, the regulations

        11       were not upheld by the court.  The question was

        12       whether the promoters were being -- would be

        13       allowed a temporary injunction to hold up the

        14       enforcement of the regulations until this fight

        15       took place and all the court decided was there

        16       was not irreparable harm shown and moved to a

        17       later date whether the regulations were

        18       enforceable or not.

        19                      I think at that later date,

        20       however, it will turn out that they are

        21       enforceable and, you know, the irony of the

        22       situation is that there are many, many dangerous

        23       sports that are regulated in this state and

        24       regulations were imposed and the promoters

        25       decided they wanted to go elsewhere.  That's a







                                                              827

         1       decision that the promoters should have, but if

         2       the regulations apparently were too tough and

         3       because they had some of the protections that

         4       maybe many of us would like to see in this type

         5       of sport, regulations that may ultimately take

         6       place in other states -- so I -- you know, I

         7       think it's academic at this point in time

         8       because promoters will not touch New York State

         9       with a ten-foot pole, but when you have Niagara

        10       Falls, some hotels losing 30 percent of their

        11       occupancy overnight and you have bouts in boxing

        12       that Senator Goodman enjoys where people have a

        13       nervous breakdown and start crying to stop a

        14       fight, there's a very, very thin line that we're

        15       dealing with here, a very, very thin line and

        16       that line is even blurred more when I still

        17       watch the ultimate fight Friday night because I

        18       wanted to see what we were preventing to be

        19       shown in the state of New York, and I saw it on

        20       the TV.

        21                      So the children we're trying to

        22       protect, the competitors we're trying to

        23       protect, all of these wonderful social benefits

        24       that we're trying to impose aren't going to

        25       happen because they're still going to be on TV







                                                              828

         1       and anybody who wants to see them, child or

         2       adult alike, will see them.  The only difference

         3       is, just like in casino gambling, the revenue is

         4       going to Canada, Alabama, the Indian nations or

         5       anywhere else.  So we're on a high moral ground

         6       and we're not doing a darn thing to promote

         7       anything other than a loss of economic

         8       well-being in the state of New York.

         9                      As I mentioned, the issue is

        10       academic.  No promoter under the regulations now

        11       is going to have his fight here.  So for that

        12       reason, I'll vote yes, but it doesn't make any

        13       sense because we've already regulated the sport

        14       out of this state.

        15                      ACTING PRESIDENT HOLLAND:

        16       Results.

        17                      THE SECRETARY:  Ayes 59.

        18                      ACTING PRESIDENT HOLLAND:  The

        19       bill is passed.

        20                      Senator Marcellino.

        21                      SENATOR MARCELLINO:  Mr.

        22       President, can we return to reports of standing

        23       committees for a report from the Veterans

        24       Committee.

        25                      ACTING PRESIDENT HOLLAND:  The







                                                              829

         1       Secretary will read.

         2                      THE SECRETARY:  Senator Meier,

         3       from the Committee on Veterans, reports the

         4       following bills:

         5                      Senate Print 76, by Senator Levy,

         6       an act to amend the Public Service Law;

         7                      423, by Senator Goodman, an act

         8       to amend the Real Property Tax Law;

         9                      462, by Senator Larkin, an act to

        10       amend the Vehicle and Traffic Law; and

        11                      463, by Senator Larkin, an act to

        12       amend the Education Law.

        13                      All bills ordered directly for

        14       third reading.

        15                      ACTING PRESIDENT HOLLAND:

        16       Without objection, all bills ordered direct to

        17       third reading.

        18                      Senator Marcellino.

        19                      SENATOR MARCELLINO:  Move to

        20       motions and resolutions.

        21                      ACTING PRESIDENT HOLLAND:  Yes.

        22       Return to motions and resolutions.

        23                      Senator Marcellino.

        24                      SENATOR MARCELLINO:  Senator

        25       Trunzo.







                                                              830

         1                      ACTING PRESIDENT HOLLAND:

         2       Senator Trunzo.

         3                      SENATOR TRUNZO:  Mr. President, I

         4       move to amend Senate Bill Number 709-A by

         5       striking out the amendment made on January 27th

         6       and restore it to the original Print Number 709.

         7                      ACTING PRESIDENT HOLLAND:  The

         8       amendment is received.

         9                      Senator Marcellino.

        10                      SENATOR MARCELLINO:  Mr.

        11       President, I believe there's a resolution at the

        12       desk by Senator Stafford.  We would like the

        13       title read and the resolution adopted

        14       immediately.

        15                      ACTING PRESIDENT HOLLAND:  The

        16       Secretary will read the title.

        17                      THE SECRETARY:  By Senator

        18       Stafford, Legislative Resoluation commemorating

        19       the 200th Anniversary of the office of State

        20       Comptroller.

        21                      ACTING PRESIDENT HOLLAND:  All in

        22       favor of the resolution signify by saying aye.

        23                      (Response of "Aye".)

        24                      All opposed, nay.

        25                      (There was no response.)







                                                              831

         1                      The resolution is adopted.

         2                      Senator Marcellino.

         3                      SENATOR MARCELLINO:  Mr.

         4       President, is there any housekeeping at the

         5       desk?

         6                      ACTING PRESIDENT HOLLAND:  No

         7       housekeeping, Senator.

         8                      SENATOR MARCELLINO:  There being

         9       no further business, I move we adjourn until

        10       Wednesday, February 12th, at 10:00 a.m.

        11                      ACTING PRESIDENT HOLLAND:  Upon

        12       motion, the Senate stands adjourned until

        13       Wednesday, February 12th, at 10:00 a.m.

        14                      (Whereupon, at 5:01 p.m., the

        15       Senate adjourned.)

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