Regular Session - February 24, 1997
963
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9 ALBANY, NEW YORK
10 February 24, 1997
11 3:01 p.m.
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13
14 REGULAR SESSION
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18 SENATOR JOHN R. KUHL, JR., Acting President
19 STEPHEN F. SLOAN, Secretary
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964
1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: The
3 Senate will come to order. All the members will
4 find their places, staff will find their
5 places. Ask all the members and everybody in
6 the chamber to rise and join with me in saying
7 the Pledge of Allegiance to the Flag.
8 (The assemblage repeated the
9 Pledge of Allegiance to the Flag.)
10 I ask all of you to remain
11 standing so the invocation can be delivered
12 today by the Reverend Dr. Evelyn John, Pastor of
13 the New Life Center of Truth of Brooklyn, New
14 York.
15 DR. EVELYN JOHN: Everyone, let us
16 just relax, let go and let God. Let us pray.
17 Loving Father, Almighty God, we
18 give Thee thanks for this day. We give Thee
19 thanks for the opportunity You have given us to
20 serve You in spirit and in truth. We thank You,
21 O God, for this Senate and for giving these,
22 Your children, the opportunity to come together
23 to build a wonderful nation. As I bear them up
24 to You this day in prayers of thanksgiving in my
25 heart, I ask that You take complete control of
965
1 their mind, body and affairs so as they go about
2 the task that is before them, they will do it
3 for the love of serving their country. So
4 lovingly and trustingly I place this Senate and
5 all who gather here into Your care and keeping
6 nothing that your Holy Spirit is now guiding and
7 directing them to do that which is right and is
8 good that the country and the people they
9 serve. Bless this nation in a special way and
10 fill this nation with Your peace, Your love,
11 Your power. In Jesus' precious name we pray.
12 And together we say amen.
13 ACTING PRESIDENT KUHL: The
14 reading of the Journal.
15 THE SECRETARY: In Senate,
16 Friday, February 21st. The Senate met pursuant
17 to adjournment. The Journal of Thursday,
18 February 20th, was read and approved. On
19 motion, Senate adjourned.
20 ACTING PRESIDENT KUHL: Hearing
21 no objection, the Journal stands approved as
22 read.
23 Presentation of petitions.
24 Messages from the Assembly.
25 Messages from the Governor.
966
1 Reports of standing committees.
2 Reports of select committees.
3 Communications and reports from
4 state officers.
5 Motions and resolutions.
6 Senator Marcellino.
7 SENATOR MARCELLINO: Mr.
8 President, on behalf of Senator Kuhl, on page
9 number 11, I offer the following amendments to
10 Calendar Number 167, Senate Print Number 545,
11 and ask that said bill retain its place on the
12 Third Reading Calendar.
13 ACTING PRESIDENT KUHL:
14 Amendments to Calendar Number 167 are received
15 and adopted. Bill will retain its place on the
16 Third Reading Calendar.
17 Senator Holland.
18 SENATOR HOLLAND: Mr. President,
19 I ask that you place a sponsor's star on my bill
20 Calendar Number 146, S. 1548.
21 ACTING PRESIDENT KUHL: Calendar
22 Number 146 is starred at the request of the
23 sponsor.
24 Senator Holland.
25 SENATOR HOLLAND: Also for
967
1 Senator Volker, on page 8, I offer the following
2 amendments to Calendar Number 136, Senate Print
3 Number 396, and ask that the said bill retain
4 its place on the Third Reading Calendar.
5 ACTING PRESIDENT KUHL:
6 Amendments to Calendar Number 136 are received
7 and adopted. The bill will retain its place on
8 the Third Reading Calendar.
9 Senator Skelos.
10 SENATOR SKELOS: Mr. President,
11 on behalf of Senator Bruno, I offer up his
12 privileged resolution and ask that it be read in
13 its entirety and move for its immediate
14 adoption.
15 ACTING PRESIDENT KUHL: Secretary
16 will read the privileged resolution by Senator
17 Bruno in its entirety.
18 THE SECRETARY: By Senator Bruno,
19 Legislative Resolution commending the Montessori
20 Schools upon the occasion of Montessori
21 Education Week to be celebrated February 24
22 through 28, 1997.
23 WHEREAS, it is the sense of this
24 legislative body to recognize and commend those
25 institutions of commitment and high achievement
968
1 whose purpose and endeavor have been dedicated
2 to the pursuit of excellence in education of the
3 children of this noble Empire State; and
4 WHEREAS, this legislative body is
5 justly proud to honor the Montessori Schools as
6 they celebrate Montessori Education Week on
7 February 24 through 28, 1997, and
8 WHEREAS, there are six Montessori
9 Schools in the Albany area. These schools
10 educate children 3 through 12 years of age;
11 Montessori is the original
12 developmental approach to education employing
13 research-based methods for maximizing each
14 child's potential. Montessori School of Albany,
15 the Montessori Magnet School, Blossom's,
16 Montessori Children's Academy, Montesorri of
17 Niskayuna and Pine Hills Montessori are six of
18 5,000 Montessori Schools nationwide;
19 Montessori Education Week is an
20 annual event designated to promote increased
21 awareness and respect for young children.
22 During this week Montessori children in public
23 and independent schools will discuss the life of
24 Maria Montessori, the first woman physicist -
25 physician/scientist in Italy who developed this
969
1 method almost one hundred years ago. The
2 children will celebrate in many ways in each
3 school including grandparents visit to
4 Montessori class, cultural fair, alumni reunion,
5 pizza lunch and a visit from La Doctoressa
6 Montessori; and
7 WHEREAS, all schools, private and
8 public, will join in a Peace Play-in at Corning
9 Preserve;
10 Professionals and parents alike
11 claim that the Montessori approach is on the
12 cutting edge of today's school reform movement;
13 multi-age grouping, a rich and extensive
14 curriculum implemented with hands-on materials,
15 cross-discipline learning and case of the global
16 environment are some of the characteristics that
17 make Montessori a special learning experience,
18 and
19 WHEREAS, Montessori schools can
20 be proud of the accomplishments of the
21 educational mission that they have undertaken;
22 the schools are inviting members of the Albany
23 community to join them in taking a first-hand
24 look at the Montessori approach.
25 NOW, THEREFORE, BE IT RESOLVED,
970
1 that this legislative body pause in its
2 deliberations to commend the Montessori Schools
3 upon the occasion of Montessori Education Week
4 to be celebrated February 24 through 28, 1997,
5 and
6 BE IT FURTHER RESOLVED that
7 copies of this resolution, suitably engrossed,
8 be transmitted to the Montessori School of
9 Albany, the Montessori Magnet School, Blossom's,
10 Montessori Children's Academy, Montessori of
11 Niskayuna and Pine Hills Montessori.
12 ACTING PRESIDENT KUHL: Is there
13 any Senator wishing to speak on the resolution?
14 Hearing none, the question is on
15 the resolution. All those in favor signify by
16 saying aye.
17 (Response of "Aye.")
18 Opposed nay.
19 (There was no response. )
20 The resolution is adopted.
21 Senator Skelos, that brings us to
22 the calendar.
23 SENATOR SKELOS: Mr. President,
24 at this time if we could take up the
25 non-controversial calendar now that everybody is
971
1 well rested and in a happy mood.
2 ACTING PRESIDENT KUHL: Secretary
3 will read the non-controversial calendar.
4 THE SECRETARY: Calendar Number
5 93, by Senator Seward, Senate Print 1182, an act
6 to amend the County Law, in relation to
7 establishing county communications systems.
8 SENATOR DOLLINGER: Lay aside.
9 ACTING PRESIDENT KUHL: Lay the
10 bill aside.
11 THE SECRETARY: Calendar Number
12 101, by Senator Saland, Senate Print 673, an act
13 to amend the Criminal Procedure Law and the
14 Family Court Act, in relation to access to
15 records.
16 ACTING PRESIDENT KUHL: Secretary
17 will read the last section.
18 SENATOR PATERSON: Lay aside.
19 ACTING PRESIDENT KUHL: Lay the
20 bill aside.
21 THE SECRETARY: Calendar Number
22 106, by Senator Volker, Senate Print 888, an act
23 to amend the Penal Law, in relation to resisting
24 arrest.
25 SENATOR PATERSON: Lay aside.
972
1 ACTING PRESIDENT KUHL: Lay the
2 bill aside.
3 THE SECRETARY: Calendar Number
4 112, by Senator Present, Senate Print 535, an
5 act authorizing the Commissioner of General
6 Services to transfer and convey certain state
7 lands.
8 ACTING PRESIDENT KUHL: Secretary
9 will read the last section.
10 THE SECRETARY: Section 4. This
11 act shall take effect immediately.
12 ACTING PRESIDENT KUHL: Call the
13 roll.
14 (The Secretary called the roll. )
15 THE SECRETARY: Ayes 50.
16 ACTING PRESIDENT KUHL: The bill
17 is passed.
18 THE SECRETARY: Calendar Number
19 138, by Senator Cook, Senate Print 779, an act
20 to amend the General Business Law, in relation
21 to requiring certain notification to callers of
22 contests.
23 ACTING PRESIDENT KUHL: Secretary
24 will read the last section.
25 THE SECRETARY: Section 2. This
973
1 act shall take effect 180 days.
2 THE SECRETARY: Call the roll.
3 (The Secretary called the roll. )
4 THE SECRETARY: Ayes 51.
5 ACTING PRESIDENT KUHL: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 139, by Senator Velella, Senate Print 1301, an
9 act to amend the General Business Law, in
10 relation to possession of equipment.
11 ACTING PRESIDENT KUHL: Secretary
12 will read the last section.
13 THE SECRETARY: Section 2. This
14 act shall take effect immediately.
15 ACTING PRESIDENT KUHL: Call the
16 roll.
17 (The Secretary called the roll. )
18 THE SECRETARY: Ayes 52.
19 ACTING PRESIDENT KUHL: The bill
20 is passed.
21 THE SECRETARY: Calendar Number
22 140, by Senator Levy, Senate Print 45, an act to
23 amend the Vehicle and Traffic Law, in relation
24 to requiring school bus and other motor vehicle
25 drivers.
974
1 ACTING PRESIDENT KUHL: Secretary
2 will read the last section.
3 THE SECRETARY: Section 2. This
4 act shall take effect on the first day of
5 September.
6 ACTING PRESIDENT KUHL: Call the
7 roll.
8 (The Secretary called the roll. )
9 THE SECRETARY: Ayes 52.
10 ACTING PRESIDENT KUHL: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 141, by Senator Skelos, Senate Print 338, an act
14 to amend the Vehicle and Traffic Law, in
15 relation to increasing the period of time during
16 which a driver's license is suspended.
17 ACTING PRESIDENT KUHL: Secretary
18 will read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect on the first day of
21 November.
22 ACTING PRESIDENT KUHL: Call the
23 roll.
24 (The Secretary called the roll. )
25 THE SECRETARY: Ayes 52.
975
1 ACTING PRESIDENT KUHL: The bill
2 is passed.
3 THE SECRETARY: Calendar Number
4 152, by Senator Levy, Senate Print 597, an act
5 to amend the Vehicle and Traffic Law, in
6 relation to providing for the permanent
7 revocation of a driver's license.
8 ACTING PRESIDENT KUHL: Secretary
9 will read the last section.
10 THE SECRETARY: Section 3. This
11 act shall take effect on the first day of
12 September.
13 ACTING PRESIDENT KUHL: Call the
14 roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 52.
17 ACTING PRESIDENT KUHL: The bill
18 is passed.
19 THE SECRETARY: Calendar Number
20 160, by Senator Stafford, Senate Print 150, an
21 act to amend the Environmental Conservation Law,
22 in relation to county responsibility.
23 ACTING PRESIDENT KUHL: There's a
24 local fiscal impact note at the desk. Secretary
25 will read the last section.
976
1 THE SECRETARY: Section 2. This
2 act shall take effect immediately.
3 ACTING PRESIDENT KUHL: Call the
4 roll.
5 (The Secretary called the roll. )
6 THE SECRETARY: Ayes 52.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 Senator Skelos, that completes
10 the reading of the non-controversial calendar.
11 SENATOR SKELOS: Mr. President,
12 if we could take up the controversial calendar
13 at this time.
14 ACTING PRESIDENT KUHL: Secretary
15 will read the controversial calendar.
16 THE SECRETARY: Calendar Number
17 93, by Senator Seward, Senate Print 1182, an act
18 to amend the County Law, in relation to
19 establishing county communications systems.
20 SENATOR DOLLINGER: Explanation.
21 ACTING PRESIDENT KUHL: Senator
22 Seward, an explanation of Calendar Number 93 has
23 been requested by Senator Dollinger.
24 SENATOR SEWARD: Certainly, Mr.
25 President.
977
1 This bill is one that passed this
2 house last year. It provides the authorization
3 for any county that chooses to -- it's a
4 county-by-county home rule situation -- but it
5 authorizes such counties as wish to pursue this
6 to create a district within the county borders
7 to finance the cost of new and improved county
8 communications systems or communications
9 involving other municipalities as well.
10 Basically, the bill sets up an
11 agency to study the need for the improvements or
12 a system. The agency makes recommendations to
13 the county governing board. Public hearings are
14 authorized and required under this legislation
15 to create the district, and once the district is
16 created, there are normal permissive referendum
17 provisions included here that come into play as
18 well.
19 What this bill would do, if a
20 district is created under this bill, would be to
21 have the expenses of these communications
22 systems to be charged to all real property
23 parcels within the district, the same as water
24 and sewer and the other improvement districts
25 that are currently authorized by law.
978
1 ACTING PRESIDENT KUHL: Senator
2 Dollinger.
3 SENATOR DOLLINGER: Mr.
4 President, will the sponsor yield to just two
5 questions?
6 ACTING PRESIDENT KUHL: Senator
7 Seward, will you yield to two questions from
8 Senator Dollinger?
9 SENATOR SEWARD: Certainly.
10 ACTING PRESIDENT KUHL: Senator
11 yields.
12 SENATOR DOLLINGER: Mr.
13 President, is it the purpose of this bill for
14 those within the scope who contribute to the 911
15 communications system -- I believe it's now
16 financed by real property taxes which means tax
17 exempt properties don't pay. Is it the intent
18 of this bill to set up a system under which
19 tax-exempt properties would make contributions?
20 SENATOR SEWARD: Well, Mr.
21 President and Senator Dollinger, nothing in this
22 bill -- there's nothing in this bill to alter
23 the way that the 911 is currently financed.
24 That's through the access lines on the
25 telephones.
979
1 This bill is directed toward
2 other forms of a communications system. It
3 could very well involve the communications
4 systems that are tagged to emergency services
5 such as, you know, the radios and that kind of
6 thing that personnel carry and all of those
7 system-related; but to answer your question
8 specifically, we're not looking to alter the
9 means of financing 911. That's taken care of
10 through the telephone access lines.
11 ACTING PRESIDENT KUHL: Senator
12 Dollinger.
13 SENATOR DOLLINGER: Again through
14 you, Mr. President, just to clarify that. All
15 of the costs that this bill is designed to
16 cover, the emergency communications costs, are
17 currently paid for by real property taxes or
18 sales taxes or some revenue-based or wealth
19 based proper financing system.
20 I'm just simply trying to get at
21 the fact that will properties that are currently
22 tax-exempt -- hospitals, schools, churches, will
23 they be contributing to the cost of the
24 maintenance of this under this system? They're
25 now tax-exempt.
980
1 SENATOR SEWARD: Mr. President,
2 it is true that all parcels within the district
3 would contribute as they do with other special
4 improvement districts that are in the law -- in
5 addition to this one. So, in effect, it would
6 expand the base in terms of those that are -
7 would be contributing for -- toward these county
8 communications systems.
9 SENATOR DOLLINGER: O.K. So again
10 through you, Mr. President.
11 ACTING PRESIDENT KUHL: Senator
12 Seward, do you continue to yield?
13 SENATOR SEWARD: Yes, I do.
14 ACTING PRESIDENT KUHL: Senator
15 continues to yield.
16 SENATOR DOLLINGER: Just so I
17 understand it, the tax-exempt entities that
18 would not have to pay property tax to finance
19 this venture would now have to make contribu
20 tions based on some kind of use-related formula
21 or some type of calculation, and I'm just
22 interested in how you calculate that.
23 SENATOR SEWARD: Well, Mr.
24 President, that, in the event -- that is true.
25 As they do with other special improvement
981
1 districts currently. There is no distinction
2 between tax-exempt and non-exempt properties in
3 those other improvement districts, nor would
4 there be under this legislation in those
5 counties that, after the public hearing and the
6 permissive referendum, all those counties that
7 choose to pursue this option.
8 We're merely trying to provide
9 the counties with an additional option for
10 financing in some cases fairly expensive
11 communications systems which benefit all people
12 in the county.
13 SENATOR DOLLINGER: Again through
14 you, Mr. President: Just how under this bill or
15 is it left to the counties to choose to exercise
16 their prerogatives under this bill? How do you
17 calculate what the users or the subscribers or
18 the payors -- how much they pay into this pool
19 of funds?
20 SENATOR SEWARD: Well, Mr.
21 President, I -- we really didn't get into that
22 kind of detail on a statewide basis. That would
23 depend on local situations, local expenses, all
24 of those -- all those local factors. I really
25 couldn't respond to that type of question.
982
1 ACTING PRESIDENT KUHL: Senator
2 Dollinger.
3 SENATOR DOLLINGER: Again through
4 you, Mr. President, so it's up to the local
5 counties how they would apportion the cost
6 between what would currently be tax-exempt
7 entities and current entities that pay real
8 property tax such as homeowners and others.
9 SENATOR SEWARD: That's -- that
10 is basically true, yes.
11 SENATOR DOLLINGER: O.K. Just one
12 other question, Mr. President.
13 ACTING PRESIDENT KUHL: Senator
14 Seward, do you continue to yield?
15 SENATOR SEWARD: Yes, I do.
16 ACTING PRESIDENT KUHL: Senator
17 continues to yield.
18 SENATOR DOLLINGER: As a
19 practical consequence of going to a charge-back
20 system or usage system as envisioned by this
21 bill and relieving the real property taxpayer
22 from it, aren't you in essence losing what could
23 be the federal subsidy because his property
24 taxes are deductible on your federal income tax
25 return and charges that you pay for water and
983
1 other services like trash collection, for
2 example, are not deductible? Does this bill
3 intend that the federal government's
4 contribution through tax deductions would be
5 lost for this kind of service?
6 SENATOR SEWARD: Well, it's
7 certainly not the intent of this piece of
8 legislation, Senator and Mr. President. It's -
9 it's the intent of this legislation simply to
10 provide another option to the counties to meet
11 the expenses of these communication systems.
12 The type of questions you're raising or the pros
13 and cons of -- that you are raising in this
14 debate, I think, are very legitimate questions
15 which should be raised at the county level in
16 any county that wishes to pursue a countywide
17 communication district under the -- under this
18 legislation. We're merely attempting to provide
19 that option.
20 SENATOR DOLLINGER: Thank you,
21 Mr. President.
22 I -- just on the bill. I
23 appreciate the -- (talking over).
24 ACTING PRESIDENT KUHL: Senator
25 Dollinger, on the bill.
984
1 SENATOR DOLLINGER: -- Chairman
2 of the Energy and Telecommunications Committee
3 answering my questions.
4 I voted for this bill before.
5 I'm going to vote for it today. (Background
6 noise) It doesn't change the tax-exempt
7 contributions to special districts. It provides
8 an additional option. I agree with you,
9 Senator, that in some of the negotiations with
10 the Assembly on this, if we want to flesh these
11 things out we may want to give the county
12 greater direction as to those counties that are
13 paying real property taxes to finance these and
14 those that aren't. I understand the system of
15 turning what is now a common charge raised by
16 real property taxes into a user fee. How you
17 proportion those, I think, those may be some
18 real tough issues for our counties.
19 I'm also concerned that, as we
20 shift them from tax base into user fees, we tend
21 to lose the federal subsidy that comes through
22 federal tax deductions, but I'll leave that to
23 the counties, Mr. President.
24 I appreciate the answers to the
25 questions. I'll be voting in favor.
985
1 ACTING PRESIDENT KUHL: Does any
2 other Senator wish to speak on the bill?
3 Hearing none, the Secretary will read the last
4 section.
5 THE SECRETARY: Section 2. This
6 act shall take effect on the first day of
7 January.
8 ACTING PRESIDENT KUHL: Call the
9 roll.
10 (The Secretary called the roll. )
11 THE SECRETARY: Ayes 53.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 THE SECRETARY: Calendar Number
15 101, by Senator Saland, Senate Print 673, an act
16 to amend the Criminal Procedure Law and the
17 Family Court Act, in relation to access to
18 records.
19 SENATOR MONTGOMERY:
20 Explanation.
21 ACTING PRESIDENT KUHL: Senator
22 Saland, an explanation of Calendar Number 101
23 has been requested by Senator Montgomery.
24 SENATOR SALAND: Thank you, Mr.
25 President.
986
1 Mr. President, this is a bill
2 which we had the opportunity to entertain last
3 year, and it passed unanimously at that time.
4 What this bill does is, it says
5 in certain carefully proscribed cases where,
6 under the Family Court Act or the CPL, the
7 Criminal Procedure Law, there are certain types
8 of records which would be sealed primarily for
9 YOs, PINS or JDs, where the Crime Victims Board
10 is in the midst of an investigation or commences
11 an investigation and believes that it's relevant
12 that they have access to those records for
13 purposes of really determining whether, in fact,
14 the victim -- the position of the victim can be
15 verified so that the victim can be compensated,
16 they would be able to access those records,
17 access them with the idea that they'd be
18 accessed only for purposes of their crime
19 victims hearing, that the records would remain
20 confidential and would be otherwise sealed.
21 ACTING PRESIDENT KUHL: Senator
22 Montgomery.
23 SENATOR MONTGOMERY: Yes,
24 Senator.
25 Mr. President, I wonder if the
987
1 sponsor would answer a question that I have?
2 SENATOR SALAND: Yes.
3 ACTING PRESIDENT KUHL: Senator
4 Saland, do you yield?
5 SENATOR SALAND: Yes.
6 ACTING PRESIDENT KUHL: Senator
7 yields.
8 SENATOR MONTGOMERY: The purpose
9 of sealing those records, especially in the
10 Family Court proceedings, what is the purpose of
11 that?
12 SENATOR SALAND: Well, the
13 records are sealed as a matter of law because of
14 the age of the assailant or the party who may
15 have been charged -- who was charged with what
16 would otherwise have been a crime.
17 Again, this is not in any way,
18 shape or form intended somehow or other to
19 further complicate the proceeding or to impose
20 any additional burdens on the person who was the
21 respondent or the defendant. What it attempts
22 to do is to say that where someone has been a
23 victim of a crime, can then make application to
24 the Crime Victims Board and they're then seeking
25 compensation and if there is the necessity of
988
1 that board in order to establish the veracity of
2 the claim, they would be able to access records
3 that would otherwise be sealed, things such as
4 perhaps whether, in fact, the victim contributed
5 to his or her own situation, things that might
6 not be readily ascertainable unless there was
7 some individual way of -- some other way of
8 verifying the allegations of the person
9 appearing before it, i.e., the victim, the Crime
10 Victims Board.
11 This does not throw the records
12 open to the public. It does not invite anybody
13 else to look at the records. The language in
14 the bill is clear that the records remain
15 otherwise confidential and they would not be
16 accessed by any other entity or agency.
17 SENATOR MONTGOMERY: I see.
18 There -- Senator Saland, does the -- the person
19 who is opening the records, there is no other -
20 two questions. There is no other way for the
21 Crime Victims Board to get the information that
22 you are seeking here and, two, are those records
23 then resealed under the same circumstances that
24 they were sealed in the first place?
25 SENATOR SALAND: Yes, they would
989
1 be. To answer your second question first, the
2 records would again be resealed and remain
3 confidential, and this is not the intention of
4 automatic -- this is not done automatically in
5 each and every case involving a person who would
6 otherwise be the beneficiary of a sealed record
7 to invite the Crime Victims Board to immediately
8 go to that record.
9 This is basically intended to
10 deal with those cases where there has been
11 someone who has been victimized, allegating that
12 he or she has been victimized, and there has to
13 be some way of corroborating and there is no
14 other way of corroborating her story, they would
15 then have the ability to access the -- the
16 several categories of records that are listed in
17 this bill and, again, at the point of being
18 terribly redundant, for that limited purpose,
19 and thereafter the records would again be
20 sealed.
21 SENATOR MONTGOMERY: Would have
22 no other way of accessing the information that
23 you're seeking in this bill?
24 SENATOR SALAND: Correct.
25 SENATOR MONTGOMERY: Yes, Mr.
990
1 President, briefly on the bill.
2 Thank you, Senator Saland, for
3 the explanation.
4 ACTING PRESIDENT KUHL: Senator
5 Montgomery, on the bill.
6 SENATOR MONTGOMERY: Yes.
7 Obviously it's troublesome to have the records
8 of particularly Family Court proceedings
9 unsealed for this purpose. While I certainly
10 agree with the idea that we want to protect as
11 much as possible the rights of the crime victim,
12 it's -- it's still a little troublesome that we
13 are looking to unseal the records particularly
14 of juveniles, young people, for any number of
15 reasons, and that access is becoming more and
16 more a part of all of the legislation that we're
17 passing in this house in particular.
18 And so I'm going to be voting
19 against this bill. I have not voted against it
20 in the past, but based on the fact that we seem
21 to be moving more and more in this direction,
22 that where essentially any young person who has
23 any infraction and goes to Family Court for
24 whatever reason, is subject to have that
25 incident follow that person throughout their
991
1 lives, and in many, many instances it's going to
2 result in people who eventually mature to the
3 age 30 or 40 and go out looking for other
4 opportunities are going to be cut off at the
5 pass, and so I'm going to just vote no on this
6 piece of legislation.
7 ACTING PRESIDENT KUHL: Is there
8 any other Senator wishing to speak on the bill?
9 Hearing none, the Secretary will read the last
10 section.
11 THE SECRETARY: Section 5. This
12 act shall take effect immediately.
13 ACTING PRESIDENT KUHL: Call the
14 roll.
15 (The Secretary called the roll. )
16 ACTING PRESIDENT KUHL: Announce
17 the results when tabulated.
18 THE SECRETARY: Those recorded in
19 the negative on Calendar Number 101 are Senators
20 Montgomery and Sampson. Ayes 53, nays 2.
21 ACTING PRESIDENT KUHL: The bill
22 is passed.
23 THE SECRETARY: Calendar number
24 106, by Senator Volker, Senate Print 888, an act
25 to amend the Penal Law, in relation to resisting
992
1 arrest.
2 SENATOR MONTGOMERY:
3 Explanation.
4 ACTING PRESIDENT KUHL: Senator
5 Volker, an explanation of Calendar Number 106
6 has been requested by Senator Montgomery.
7 SENATOR VOLKER: Mr. President,
8 this is a bill or a type of this bill has been
9 around for some years, and the reason I say "a
10 type of this bill" is that it has been changed
11 somewhat since last year, in fact partly because
12 of the debate on this floor. Senator Waldon and
13 I, last year, as some of you may or may not
14 remember, and Senator Montgomery and I, by the
15 way, had a long discussion about this bill, and
16 it related to the genesis of the bill itself,
17 and to the -- as to how it occurred.
18 Basically what this bill does,
19 and as I said at the time, as I've said at the
20 time, this bill, I think recognizes the real
21 reality of what has been happening in our
22 streets, and that is that the courts and, to a
23 certain extent, the district attorneys have
24 downgraded the penalties for assaults on police
25 officers.
993
1 There was a little question, to
2 the point now where in order to maintain any
3 kind of assault on a police officer, you have to
4 have a serious injury. You have to have some
5 sort of really substantial injury. We did some
6 records checking, by the way, on assaults on
7 police officers. They're almost never
8 maintained any more. In addition to that,
9 resisting arrest charges are very rarely ever
10 maintained because the initial charge usually is
11 what -- what occurs.
12 What this bill does is, because
13 at the present time any form of resisting arrest
14 is a Class A misdemeanor, whether somebody
15 kicks, punches, swings, runs down the street,
16 whatever they do and hits the police officer,
17 whatever they do, it is a Class A misdemeanor
18 with a maximum of one year in jail.
19 This bill, I think, faces the
20 reality of the streets today and as opposed to
21 last year's bill -- by the way, last year's
22 bill, on the advice of some people from the
23 Assembly, very honestly, we had omitted some of
24 the language that is presently in this bill with
25 the idea that it might have a better chance of
994
1 passing the Assembly, and last year's bill
2 basically said a person is guilty of assault in
3 the first degree when he commits the crime of
4 assault in the second degree using physical
5 force against the police officer or peace
6 officer.
7 Initially we had used the
8 language which is in this bill by striking,
9 shoving, pushing, kicking, otherwise imposition
10 of physical force. It was told to us by some of
11 the staff people in the Assembly that that would
12 be harder to accept. As Senator Waldon pointed
13 out, he thought that that language, in fact,
14 would -- would be easier to deal with, and in
15 fact would, frankly, enhance the bill.
16 After the bill passed this house
17 last year and we made a yeoman attempt to get
18 the Assembly to negotiate on this sort of bill,
19 we found out that actually the language we had
20 didn't do us any more good than the language we
21 had before so, frankly, we amended the bill this
22 last year and put back in the old language.
23 Basically, though, what it comes
24 down to is that the old form of resisting arrest
25 is still there and that is resisting arrest in
995
1 the -- in the second degree which means it's a
2 Class A misdemeanor; but what this bill does is
3 to provide that, when you do these things that
4 are listed in the bill, in other words use
5 physical force against a police officer, then
6 the lowest form of felony which is a Class E
7 felony could be put into place.
8 ACTING PRESIDENT KUHL: Senator
9 Leichter? Senator Montgomery, did you have
10 further questions?
11 SENATOR LEICHTER: I'm sorry.
12 SENATOR MONTGOMERY: No, I wanted
13 to speak on the bill. I do not want to ask
14 questions.
15 ACTING PRESIDENT KUHL: I
16 recognized you before Senator Leichter, so if
17 you'd like the floor, the floor is yours.
18 SENATOR MONTGOMERY: Thank you.
19 Senator Volker, could you tell us who would be
20 responsible for -- for making the judgment of
21 the degree of resistance?
22 ACTING PRESIDENT KUHL: Senator
23 Volker, do you yield to a question, number one;
24 did you hear the question, number two?
25 SENATOR VOLKER: Number one, the
996
1 initial decision would be made by a police
2 officer and, by the way, if it would become a
3 felony. It would become a more serious crime
4 and, therefore, the burden of proof would
5 increase, by the way, and then move more fully
6 to the district attorney's office which is one
7 of the problems here.
8 In New York City, very honestly,
9 misdemeanors are looked at as such a low profile
10 offense as to be almost washed out the window.
11 That's one of the difficulties today in dealing
12 with some of these crimes. You really look at
13 the -- at what's been happening is the
14 protection against law enforcement people has
15 declined dramatically over the last 10 to 15
16 years. In fact, it's my humble opinion it's why
17 we're seeing some of the problems that we are
18 seeing out there in the streets today with
19 resisting arrest and having people seriously
20 hurt because law enforcement officers are being
21 attacked on a regular basis, and they realize
22 that their chances of being protected,
23 unfortunately, by the courts are very slim and
24 in the sort of frustration that is occurring,
25 people are getting hurt, and I think that you
997
1 know we've got to recognize that somehow we've
2 to protect our law enforcement officers because,
3 in a sense, we're not only protecting them,
4 we're also protecting the people who they're
5 dealing with.
6 I don't think people really
7 understand what's been happening in the
8 streets. We went through this period, by the
9 way, years ago when we went through, back in the
10 late '60s -- and I was -- happened to be out
11 there in those times, and like my kids say,
12 Don't start telling those war stories, but I was
13 assaulted nine times in one year back in 1968.
14 Well, at that time, people didn't
15 pay much attention to that sort of stuff.
16 People hit me over the head with a chair and all
17 sorts of things. I think only one charge ever
18 stuck on any of those because it was considered,
19 well, it was just part of doing business, just
20 -- I heard that, Senator, by the way -- but at
21 any rate, I think what we're trying to do here
22 is that the answer is that these cases obviously
23 would be taken on their merit and you have to
24 prove them and you have to prove that the person
25 did exert physical force and the person would
998
1 have to be as part of another lawful arrest.
2 SENATOR MONTGOMERY: All right.
3 Thank you, Senator Volker.
4 On the bill, Mr. President.
5 ACTING PRESIDENT KUHL: Senator
6 Montgomery, on the bill.
7 SENATOR MONTGOMERY: I just want
8 to make it, for the record -- want to make it
9 very clear to you, Senator Volker, and to my
10 other colleagues that I have what I consider a
11 very good relationship with the police officers
12 in my district. I meet with them regularly.
13 They meet with community groups and with me. We
14 talk about issues related to youth and youth
15 crime and other kinds of issues, that they are
16 concerned with and that we are mutually
17 concerned about, and so I have every respect and
18 regard for police officers, and they have been
19 most responsive in trying to help solve some of
20 the real difficult issues for my constituents.
21 However, this has not been
22 something that they have zeroed in on, so I must
23 ask them if they feel particularly assaulted by
24 people so that they now want it to be a felony,
25 but, as you know, I have had experience with
999
1 young people who have been charged with this
2 particular crime, and it is the most common
3 charge that occurs in an arrest, particularly
4 when it's an African-American male. I've said
5 this so many times I feel like a broken record,
6 but it is the truth and it is not always that
7 the police officer has, in fact, been
8 assaulted. That also is the truth, and I think
9 all of us in this room understand that, so I -
10 I can not in good conscience support a measure
11 which will give the police officers who want to
12 use resisting arrest as one of the charges that
13 they sort of routinely set out when they are
14 making an arrest for any reason, to raise that
15 to a Class E felony, whatever Class E felony is
16 going to mean because ultimately they are
17 looking to -- I think one of the bills that you
18 also introduced or that Senator Volker
19 introduced, Mr. President, was that he wants to
20 make two strikes and you're out and two violent
21 felonies and you're out, but all of these add
22 up, and by the time it reaches a point where
23 we're ready to send someone to prison, we have
24 any number of these kinds of charges including
25 this Class E felony where someone had been
1000
1 accused of resisting arrest and that becomes
2 part of the reason they spend 15 to 20 years in
3 prison and, in addition, these civilian
4 complaints against police have more than doubled
5 since 1994 in New York City, and two-thirds of
6 these allegations involve force or abuse of
7 authority, and more than half of the complaints
8 against the police are African-American males.
9 So I think we have to be very,
10 very careful about escalating these kinds of
11 charges. We hope in New York City to begin to
12 deal with the issue of attacks on police but, in
13 addition to that, we want to deal with the flip
14 side of the coin and that is attacks by the
15 police on the people that they are supposed to
16 be protecting, and I don't see this as
17 addressing that; and so, Mr. President, I must
18 continue along with at least ten of my other
19 colleagues who have, year in and year out, voted
20 against this measure. I'm going to join them
21 again this year and vote against this particular
22 bill, and those of my colleagues who have
23 consistently voted against this, I'm just
24 reminding us now, Senator Abate, Senator Connor,
25 Senator Leichter, Senator Markowitz, Senator
1001
1 Mendez, Senator Paterson, Senator Santiago and
2 Senator Smith. We have traditionally voted
3 against that, and my assumption is that we will
4 all be voting against it again this year.
5 Thank you.
6 ACTING PRESIDENT KUHL: Senator
7 Leichter.
8 SENATOR LEICHTER: Yes, Mr.
9 President. If Senator Volker will yield.
10 ACTING PRESIDENT KUHL: Senator
11 Volker, will you yield? Senator yields.
12 SENATOR LEICHTER: We've
13 obviously debated this bill before, but since
14 we're in this phase of the session, we're
15 regurgitating these bills, and we don't seem to
16 have much else to do today, and it does raise, I
17 think, important issues.
18 Frankly, I'm somewhat puzzled by
19 the bill. I'm puzzled also by your explanation,
20 but the one thing that I just want to clarify is
21 if now somebody goes and punches a police
22 officer, whether in the course of an arrest or
23 otherwise it takes place, that can constitute an
24 assault, can it not?
25 SENATOR VOLKER: Sure.
1002
1 SENATOR LEICHTER: And it could
2 be a felony, is it not? It could be?
3 SENATOR VOLKER: Punching? No.
4 It would essentially be assault third.
5 SENATOR LEICHTER: Well, it
6 depends how it's done, whether it can be a
7 serious felony.
8 SENATOR VOLKER: Well, you have
9 to have a serious injury. If you punch somebody
10 today, you have to have a serious injury, for
11 assault third. If you're going to ask me if
12 that constitutes resisting arrest, the answer is
13 no.
14 SENATOR LEICHTER: Well, I wasn't
15 going to say it constitutes resisting arrest.
16 Just it constitutes a crime; it constitutes a
17 crime.
18 SENATOR VOLKER: That's right.
19 SENATOR LEICHTER: I think all of
20 us on either side of the aisle are committed to
21 defending police officers when they're carrying
22 out their duties, and we want to facilitate them
23 in carrying out their duties. We want to make
24 sure that we have a bill that, first of all, is
25 tailored to a real crime and, secondly, one that
1003
1 appropriately has in mind the problems that
2 could arise, and that's what I'm really
3 concerned about in this bill.
4 Senator, I understood you to say
5 when you gave the explanation of the bill, you
6 used this word that says it's very rare to have
7 any charge for resisting arrest maintained.
8 SENATOR VOLKER: Absolutely.
9 SENATOR LEICHTER: Right. I'm
10 not so sure that that's the experience in the
11 city of New York.
12 SENATOR VOLKER: It is precisely,
13 it is. You'll find out it is. If you look at
14 the record, what she -- what Senator Montgomery
15 said about maybe some charges being laid,
16 they're almost never maintained. What law
17 enforcement officers tend to do, and it was like
18 -- I'll tell you, when we would chase somebody
19 in a high speed chase, you'd charge them with a
20 dozen red lights and stop signs, and so forth,
21 Senator. It would all get boiled down to the
22 one charge which was reckless driving, and what
23 happens in these cases is traditionally, when
24 they're all pled out which is traditionally what
25 happens, usually only the one charge ends up,
1004
1 and I'm very, very frank with you; this is the
2 way the system works.
3 SENATOR LEICHTER: But, Senator,
4 that's not going to change necessarily as a
5 result of -- (Talking over).
6 ACTING PRESIDENT KUHL: Senator
7 Leichter, excuse me. Are you asking Senator
8 Volker to continue to yield?
9 SENATOR LEICHTER: Yes, I am,
10 through you.
11 ACTING PRESIDENT KUHL: Senator
12 Volker, do you continue to yield?
13 SENATOR LEICHTER: Exactly,
14 Senator, the charges are made. The charges
15 certainly are being made, but in the context of
16 disposing of the case, and there are obviously
17 more serious crimes involved and that's just as
18 likely to happen if you make that a Class E
19 felony.
20 SENATOR VOLKER: You asking me
21 that question?
22 SENATOR LEICHTER: Yes.
23 SENATOR VOLKER: The answer is
24 not exactly, and the reason is we're differen
25 tiating. We're differentiating. That's the
1005
1 Avis answer "not exactly". Hertz -- I'm sorry.
2 You're better at that stuff than I am.
3 What I'm saying to you is, in all
4 honesty, it's kind of almost a shame that we
5 have got to the point where what we're trying to
6 show here is the difference between mere passive
7 resisting arrest, which is -- which is the
8 traditional misdemeanor, and the active physical
9 force against a police officer that would be
10 used in what is -- what would be traditionally
11 known as a real resisting arrest which today
12 would still be a Class A misdemeanor and which,
13 frankly, for the most part has been passed over
14 as nothing that has to be paid much attention
15 to. When you go to a Class E felony, then at
16 least it's something that has to get the
17 attention of the prosecutor and has to be dealt
18 with in a bit of a different manner and at least
19 puts a different light on the individual who has
20 been charged. That doesn't necessarily mean it
21 can be maintained because it has to, as you
22 know, Senator, and as I know, that once you do
23 get to a felony status, the proof that must be
24 maintained is very honestly greater than in a
25 misdemeanor, and I think that's correct and
1006
1 that's the way it should be.
2 SENATOR LEICHTER: Senator, I
3 don't believe that's the law.
4 SENATOR VOLKER: Well, it is.
5 SENATOR LEICHTER: A misdemeanor
6 or felony, you still have to find the person
7 guilty beyond a reasonable doubt. I think the
8 standard of proof for misdemeanor and felony are
9 exactly the same under the law. Now, whether
10 juries and prosecutors are going to look a
11 little differently at it, that may well be but
12 the test is still beyond a reasonable doubt. I
13 think you would agree to that.
14 SENATOR VOLKER: Correct. O.K.
15 SENATOR LEICHTER: I think you're
16 probably correct that insofar as the disposition
17 is concerned that somebody, in addition to
18 whatever the underlying crime is, is charged
19 with a Class E felony, then there may be more
20 chance that either that will be maintained as a
21 separate crime or that in the overall
22 resolution, that will be factored in and that's
23 why I think the definitions are so terribly
24 important, and that's why I'm concerned, because
25 it's in -- in this resurrected version of the
1007
1 original bill, where you say shoving, pushing,
2 kicking.
3 Now, if, let's say, in the course
4 of an arrest, a police officer in the case,
5 let's say, of a civil disobedience, somebody is
6 lying down and the officer picks them up and the
7 person I know strikes out with his leg. Isn't
8 that kicking; is that not kicking?
9 SENATOR VOLKER: Yes.
10 SENATOR LEICHTER: And would that
11 now be a Class E felony under your bill?
12 SENATOR VOLKER: Senator, I mean
13 you know, I think you know what the answer is,
14 and that's why initially we were a little
15 concerned but we're talking about physical force
16 here and, in order to maintain a felony -- and
17 we went through this before -- you obviously
18 know that you have to prove something more
19 substantial, but we're trying to -- Senator, and
20 you know very well that passive versus active is
21 passive versus active, and if a person is lying
22 there flat on the ground and doing nothing and
23 does nothing to disturb the police officer other
24 than -- than say sit there, if they start
25 kicking and shoving and pushing, then that's
1008
1 physical force and, therefore, that could
2 maintain a felony, that's true.
3 ACTING PRESIDENT KUHL: Senator
4 Leichter.
5 SENATOR LEICHTER: All right, on
6 the bill.
7 ACTING PRESIDENT KUHL: Senator
8 Leichter, on the bill.
9 SENATOR LEICHTER: Mr. President,
10 first of all, I don't believe -- I'm sorry.
11 There was one other question I wanted to ask
12 you.
13 ACTING PRESIDENT KUHL: Senator
14 Volker, do you yield to one more question?
15 SENATOR VOLKER: Yes.
16 ACTING PRESIDENT KUHL: Senator
17 yields.
18 SENATOR LEICHTER: Senator, you
19 said you were having a real problem with
20 assaults on police officers. In the city of New
21 York -- I don't have the statistics -- there are
22 no problems at all, that there have been very,
23 very few incidents. There may have been a couple
24 of incidents this year where people threw
25 bottles at police officers, so on. I'm not even
1009
1 sure -- well, that wouldn't be covered because
2 yours is -- yours is in the context of resisting
3 arrest.
4 SENATOR VOLKER: Right.
5 SENATOR LEICHTER: And that's
6 probably already a crime, but I know really of
7 no case where there's been the sort of notorious
8 act against a police officer either by a group
9 or by an individual, just not a problem in the
10 city of New York. May have been in the '60s, I
11 think there was more of a problem. Is there a
12 problem in Buffalo?
13 SENATOR VOLKER: Senator, I'll
14 bet you there is an assault on a police officer
15 every single night in New York City but because
16 you don't hear about them, because, Senator,
17 it's become so normal and so part of the police
18 officer's every day agenda unfortunately, that
19 you don't even hear about it.
20 I have heard prosecutors and I've
21 heard judges say to me, Well, Senator, come on,
22 hitting a police officer has become part of our
23 culture. I mean it -- this is true. I have -
24 this is what they have to expect as part of the
25 system, getting a little beat up. You didn't
1010
1 get hurt too bad; he didn't show any real
2 scars.
3 I mean, Senator, it goes on, on a
4 regular basis and it's no secret that maintain
5 ing an assault charge today -- and this is -
6 this bill didn't come out of Buffalo; it came
7 out of law enforcement people. Primarily it
8 came out of Long Island people who were talking
9 about rather gross cases of police officers that
10 were kicked, on the ground, lying on the ground,
11 ended up in an assault third plea, and one of
12 the things that was said at the time is, well,
13 you couldn't really charge them with resisting
14 arrest because you never really arrested them.
15 You were beat up and you were there, but you
16 never really arrested them.
17 So I think, Senator, I must say
18 to you in that, I understand and I'm not telling
19 you that law enforcement officers are perfect.
20 I'm not telling you the system is perfect but,
21 Senator, let's not -- let's not kid ourselves,
22 it is still darned tough out there on the
23 streets. It is a tough time.
24 SENATOR LEICHTER: Mr. President,
25 Senator Volker, if you would yield, I never
1011
1 really got an answer to my last question. Do
2 you have any statistics, I mean other than these
3 anecdotal stories that you're telling us?
4 SENATOR VOLKER: Senator, the
5 problem is that we have a lot of statistics. We
6 can reach back into assault charges, if you want
7 to really look 'em up. How many convictions?
8 Very, very, very few, and that's my point.
9 SENATOR LEICHTER: How many -
10 you said it -- how many instances where the
11 police in the courts, on arrest, said, "I was
12 assaulted?"
13 SENATOR VOLKER: We have -- they
14 are so frequent we really have -- we really do
15 not know for sure, but we know it happens very,
16 very frequently.
17 SENATOR LEICHTER: But you have
18 no statistics.
19 SENATOR VOLKER: Senator, there
20 are no regular statistics.
21 SENATOR LEICHTER: Mr. President,
22 thank you. Thank you, Senator Volker.
23 I must say I have difficulty
24 seeing the need and reason for this bill. I'm
25 sorry, Senator Volker. I know you believe what
1012
1 you're saying, but I believe you're wrong, and I
2 believe what's telling is that you have no
3 statistics.
4 I don't believe it's a problem
5 that police officers are getting assaulted in
6 the course of making an arrest, and I will
7 further say that, if that happens, my
8 experience, my knowledge, police officers will
9 record that, and charges will be made. Records
10 will be kept. If it's a problem, the statistics
11 must be there. If the statistics are not there,
12 it's because as I maintain there is really no
13 problem that would -- that we have.
14 Furthermore, if, as you gave a
15 case for somebody in Long Island, you said that
16 they were being assaulted, but they were never
17 charged because there was no arrest. Well, that
18 would have been the same thing, would hold true
19 under your bill, but I can't believe, Senator,
20 that people were being assaulted in this fashion
21 and that no charges were made and, if there was
22 no conviction, it may be that there was some
23 reason that the jury or the jury found that a
24 crime had not been committed, but that's not
25 going to be solved by your bill because your
1013
1 bill, of course, requires an arrest.
2 I think the difficulty with this
3 bill is, if you take a look at the language, it
4 opens up, I think, a great deal of false charges
5 or people being charged with a felony that
6 really what they did was very moderate and can
7 be treated under the current law which is a
8 misdemeanor.
9 Police officer puts his hand on
10 somebody, maybe perfectly proper, and says,
11 "You're under arrest," the person pushes his
12 hand away, you're going to make that a class E
13 felony? That's what it would be under your
14 bill.
15 Somebody is lying down in a civil
16 disobedience, police officers come to pick him
17 up, take his legs, he kicks out his legs, one of
18 those kicks lands in the police officer. You
19 want to make that a class E felony? I think
20 that's unreasonable.
21 So I don't see, one, that we have
22 a need for this bill. If the police officer is
23 assaulted, it's already a crime and it should be
24 a crime. If somebody interferes with an arrest,
25 it's a crime already. It's a misdemeanor, but
1014
1 to make a felony out of some of the things that
2 Senator Volker lists here, which is pushing -
3 you want to make that a Class E felony?
4 Kicking, shoving -- shoving is going to become a
5 Class E felony? I think it's unreasonable.
6 I would hope, Senator Volker,
7 that -- I didn't vote for last year's bill but
8 at least I think it was directed and in a way so
9 at least we were dealing with some serious acts
10 of force against a police officer. These acts,
11 as you have enumerated them, are not serious
12 acts of force that ought to be considered a
13 felony.
14 ACTING PRESIDENT KUHL: Senator
15 Abate, did you wish to be recognized?
16 SENATOR ABATE: Yes, on the
17 bill.
18 ACTING PRESIDENT KUHL: Senator
19 Abate, on the bill.
20 SENATOR ABATE: I agree with
21 Senator Volker, and I agree with Senator
22 Leichter for different reasons. I do think that
23 officers are being assaulted every day, and we
24 need to take seriously the assault on the
25 officers, and we should look at the assault
1015
1 language to find out whether we talked about it
2 last year with domestic violence and whether it
3 applies with officers. We need to look at
4 whether the threshold is too high to charge
5 simple assault, and look at what is needed for a
6 serious physical injury in terms of defining
7 that. We should do it as we discussed last
8 year, from the angle of domestic violence and
9 maybe look at assault on police officers. Let's
10 do that because that's what we really need to
11 punish individuals is when they assault
12 officers.
13 My concern, and why I opposed
14 this bill last year is that definition. This
15 bill does not do that. This bill talks about
16 the difference between passive and aggressive
17 resisting arrest, and I suggest there are very
18 few occasions where there'll be passive
19 resisting arrest. I mean it's -- it's against
20 the definition of resisting arrest. If you
21 resist, there's some part of your body, whether
22 it's the shoving or the pushing, that does not
23 equal physical injury that will be involved, so
24 just about every crime of resisting arrest will
25 become a felony, and I do not believe that
1016
1 that's what's intended.
2 We want to prosecute defendants
3 vigorously and strongly when they assault
4 officers. Let's make it easier for prosecutors
5 to meet that burden. Let's draft that
6 legislation. That's not what is before us.
7 This is legislation that says
8 wholesale, although I know Senator Volker says
9 he doesn't interpret the bill that way, I
10 interpret this bill as saying that all resisting
11 arrests will become a felony. If the courts
12 aren't doing their job, we should get the courts
13 to do it.
14 The scope of punishment for
15 resisting arrest is a year in jail. That is not
16 something we should take lightly. If they
17 assault as well as resist arrest, they're going
18 to be faced with a felony as well as a
19 misdemeanor, and they should be doing
20 substantial time.
21 So our focus, I believe, is
22 misplaced. Let's amend the assault law. Let's
23 prosecute vigorously assaults on police officers
24 and there's enough scope of punishment within
25 resisting arrest. I believe the language in
1017
1 this bill is much too broad, and I think it
2 would be leading to abuse of discretion.
3 ACTING PRESIDENT KUHL: Senator
4 Gold.
5 SENATOR GOLD: Thank you, Mr.
6 President.
7 Mr. President, first of all, just
8 to answer something that my distinguished
9 colleague from Brooklyn said, and when she said
10 that's why there are people in there for 15 and
11 20 years.
12 Senator, I think one of the
13 incidents which upset everybody last year was
14 when there was an arrest in Queens in a murder
15 case and we found out the person had 15 priors,
16 and we got ahold of that record to try to figure
17 out how you get 15 priors and, as I pointed out
18 on the floor, that wasn't a liberal or
19 conservative issue. That's something that
20 should have outraged everybody; but that has
21 nothing to do with this case.
22 There was a gentleman playing
23 football in the city of New York and the
24 football hit a car and the next thing you know
25 we had a dead young man, and that has nothing to
1018
1 do with this case. The officer has now lost his
2 pension, et cetera, et cetera, and that should
3 have happened, and that was a terrible
4 situation, and that's not this case.
5 It seems to me that there are
6 balances that we deal with all of the time, and
7 I have stood up here proudly with Senator
8 Leichter and Senator Abate and others to fight
9 for a fair trial, for fair treatment of people,
10 for the civil rights of everybody, but when you
11 finish with that, if somebody is convicted you
12 go to jail. That's not conservative, that's not
13 liberal, you go to jail.
14 And there's another concept.
15 There are police who, on certain -- in certain
16 situations, may be wrong in making an arrest,
17 but under our law, if you're getting arrested
18 you get arrested and you're not supposed to
19 inflict damage on a police officer and you're
20 not supposed to resist arrest. You're just not
21 supposed to do it.
22 Now, when Senator Abate says that
23 if you assault a police officer, that's a crime
24 and you can be punished for that and we're
25 taking care of it, that's a different message
1019
1 than saying, in my opinion anyway, in plain
2 English you don't resist arrest and if you do
3 resist arrest and you're punching and kicking or
4 you take the opportunity to do something which
5 could hurt a police officer, you're complicating
6 a felony, that's a different message and I don't
7 see anything wrong with that.
8 When we talk about people who are
9 being civilly disobedient and the image that is
10 around this chamber is that these are not quite
11 your typical criminal, but that in resisting
12 they kick an officer, well, the answer is there
13 aren't any special rules. You may be part of a
14 peaceful demonstration. The minute you kick a
15 police officer, you're doing something wrong.
16 You're not supposed to kick police officers, and
17 I don't think you kick a police officer. If you
18 are a minority child or youngster who committed
19 a robbery, you don't kick a police officer or if
20 you're somebody else who, in every other way,
21 may consider themselves a, quote, "decent
22 citizen", unquote, but you're doing something
23 you think is right so you kick a police
24 officer.
25 So the bottom line of it, I'm not
1020
1 offended by this legislation at all. I'm going
2 to vote for the legislation. I think that if
3 somebody is being arrested, you get arrested,
4 and then I hope all of the rights that I have
5 voted for fall into place and, God willing, the
6 system works, they get acquitted or they get
7 convicted and if they get convicted and they go
8 to jail, they go to jail, and I think that's
9 what makes the system work.
10 I can't understand, to tell you
11 the truth, when I read in the paper of
12 disturbances where you have police officers and
13 undercover officers who get things thrown down
14 on them from building tops in parts of areas in
15 New York City and, if I was in that community
16 and realized that I was now becoming less safe
17 because police officers might not want to be in
18 my community, the community ought to be up in
19 outrage over that.
20 Shouldn't be a question of
21 worrying about the poor misunderstood indi
22 viduals involved. I mean the fact is, I think
23 it was Senator Waldon but I may be wrong,
24 somebody brought up at one of our hearings
25 recently that 7 Assembly Districts in this state
1021
1 suffer 80 percent of juvenile crime. Well, if
2 crime is pretty local -- no, one second. Yeah,
3 I yield.
4 ACTING PRESIDENT KUHL: Senator
5 Leichter, why do you rise?
6 SENATOR LEICHTER: You start off
7 by telling -- (talking over).
8 ACTING PRESIDENT KUHL: Senator
9 Leichter, are you asking Senator Gold to yield
10 to a question.
11 SENATOR LEICHTER: Yes, I am.
12 ACTING PRESIDENT KUHL: Does the
13 Senator yield?
14 SENATOR GOLD: Yes.
15 ACTING PRESIDENT KUHL: Senator
16 yields.
17 SENATOR LEICHTER: Senator, you
18 start off by saying -- and I agree with you -
19 that what this bill is about and what it's not
20 about, and I agree with you it's not about
21 people throwing bottles down from roof tops, and
22 it has nothing to do with this bill.
23 My question to you is -
24 SENATOR GOLD: I don't agree with
25 you.
1022
1 SENATOR LEICHTER: My question to
2 you is, I agree with you that resisting arrest
3 ought to be a crime and you know what? It is a
4 crime. The question is whether in those
5 instances where, whether you're a kid who has
6 been arrested for a robbery or you're a bishop
7 who's been arrested in a civil disobedience, if
8 you push a policeman's hand away, do you want to
9 make that a Class E felony? That's the only
10 issue.
11 We all agree that you can't and
12 you shouldn't resist arrest, so my question to
13 you is, would you, in effect, I think as Senator
14 Abate very correctly pointed out, every instance
15 where there's a resisting arrest make it a Class
16 E felony? Is that your intent?
17 SENATOR GOLD: Maybe, and the
18 answer is to the first part of your question,
19 Senator, where you answered it for yourself and
20 you said throwing bottles down is not part of
21 it. The answer is it is.
22 This bill deals with respect.
23 That's what it deals with. It deals with an
24 issue, in my opinion, as to whether or not a cop
25 should have to walk the streets with an Uzi to
1023
1 get respect or whether the community-at-large
2 ought to respect the fact that we have police
3 officers out there doing a tough job and they
4 need some kind of support, and some things are
5 deterrents, Senator Leichter, some things
6 aren't, and you and I probably agree probably 99
7 percent of the time on what is deterrence and
8 what is nonsense, but I think word gets around
9 and I think that the word in the street ought to
10 be that you do not assault police officers. If
11 a police officer approaches you and you think
12 the policeman is wrong, that's what the court
13 system should be able to help you with, but you
14 don't take it into your own hands. You don't
15 assault police, and you don't resist arrest.
16 Now, I also believe, Senator
17 Leichter, and I say this from someone who has in
18 fact spent a good deal of time in the criminal
19 courts as a lawyer, that the system works its
20 way out.
21 Now, we as legislators don't
22 always like that; so, for example, if you do
23 certain conduct, it's a felony at this level,
24 well, you try to get a conviction at that
25 level. Also, geography plays a part in this.
1024
1 It plays a part in this.
2 I remember a few years back there
3 were two cases I knew about. One was a quantity
4 of marijuana, more than just a cigarette, in the
5 city of New York and one of the judges was
6 furious with the district attorney's office for
7 wasting time, and the other was a single
8 marijuana cigarette in Westchester County, and
9 some judge there was ready to throw the key away
10 for this kid. Now, that's differences within
11 communities in the way things operate.
12 In the criminal justice system in
13 the city of New York, if it was just an arrest,
14 Senator Leichter, you'd be surprised what you
15 can't get a conviction for and what is un
16 fortunately accepted as normal conduct. You
17 wouldn't if you were a judge and I wouldn't, but
18 it's done and all I'm saying is, is this the
19 best piece of legislation I've ever seen on this
20 issue? Who knows? Whoever wrote that
21 legislation, except you and I, got it passed.
22 But, Senator, what it does is, it
23 makes a social statement and that social
24 statement is a simple one. That is that the
25 bill of rights is terrific. People ought to
1025
1 have their rights and be protected, but if you
2 have a police officer on the street and he says,
3 "You're under arrest," by God, you're under
4 arrest and you don't have a right to kick the
5 cop or shove the cop or do any of those things
6 because, Senator, you create a chain and it's
7 not just a question of somebody touches the
8 cop. That is not what happens and you know it's
9 not what happens.
10 If you have the opening, one
11 thing leads to another, and what this bill says
12 is we don't want one thing to lead to another.
13 It's got to stop, and I can support that.
14 ACTING PRESIDENT KUHL: Secretary
15 will read the last section.
16 THE SECRETARY: Section 3. This
17 act shall take effect on the first day of
18 November.
19 ACTING PRESIDENT KUHL: Call the
20 roll.
21 (The Secretary called the roll. )
22 ACTING PRESIDENT KUHL: Announce
23 the results when tabulated.
24 Senator Abate?
25 SENATOR ABATE: I would like to
1026
1 explain my vote after.
2 ACTING PRESIDENT KUHL: Senator
3 Abate to explain her vote.
4 SENATOR ABATE: The issue is
5 absolutely we should not condone resisting
6 arrest. It should be taken seriously. Many
7 instances defendants should be given a full year
8 in jail, and we should take more seriously than
9 we are assaults on police officers and make it
10 easier for district attorneys to prosecute.
11 This bill doesn't do that. If
12 this bill were to bifurcate, and I hope Senator
13 Volker would look at this -- Senator Volker, I
14 know this is not asking him to yield to a
15 question, but if I could get Senator Volker's
16 ear -- if Senator Volker would look at resisting
17 arrest when it occurs and results in physical
18 injury to a police officer, even though a
19 separate charge of an assault could be brought,
20 if that could be a felony then you know you're
21 taking very serious resisting arrest charges.
22 Make that a felony, and not make all resisting
23 arrests a felony and maybe that would be
24 something that would get broader support. But
25 without those changes, I have to remain
1027
1 opposed.
2 ACTING PRESIDENT KUHL: Senator
3 Abate will be recorded in the negative.
4 Senator Montgomery, to explain
5 her vote.
6 SENATOR MONTGOMERY: Yes, Mr.
7 President, briefly.
8 I reiterate again to my
9 colleagues I think that certainly we want to
10 protect the safety of police officers, and they
11 do a valuable -- let's be very clear that the
12 police -- the police are viewed very differently
13 in the African-American community than they are
14 in the white community. They are viewed as the
15 protectors of the rights of white people. In
16 the black community they are often viewed as
17 occupying the community, and therefore, as the
18 enemy.
19 We are trying desperately, the
20 police themselves and people who live in the
21 black community, are trying to get beyond that
22 perception. We're looking for solutions as to
23 ways in which we can more positively receive and
24 anticipate a relationship between police and the
25 black community.
1028
1 This does not do that. This only
2 arms them with one more level of crime to -- one
3 more type of crime that they can charge a person
4 who is arrested and escalate the level of the
5 possible punishment of that crime, and we know
6 that this is a problem. The police know it, and
7 we know it.
8 We know that in no place in this
9 nation is justice meted out equally to
10 everybody. If you don't have money, if you're a
11 person of color, you are not going to receive
12 the exact same level of justice as you do, and
13 treatment by the justice system, the criminal
14 justice system, as you do if you have money or
15 power and/or if you are not a person of color.
16 So anybody who believes that is totally
17 misinformed, and I can give you reams and reams
18 of stories and examples of people and instances
19 where this is proven to be true, including a
20 report that was done by the New York State
21 Department of Criminal Justice Services.
22 So I am adamantly opposed to
23 this, and I think that we are not targeting
24 people who, in fact, assault police. We are
25 targeting a whole 'nother group of people who
1029
1 are not the violent criminals that we want to
2 certainly deal with appropriately, but this -
3 this targets young people particularly, African
4 American males particularly, who may lash out in
5 an instant of anger.
6 The police understand that, but
7 it's not because they are, in fact, assaulting a
8 policeman. It is not because the policeman is,
9 in fact, injured. It is just because this is a
10 charge that we can level against you and we will
11 punish you. If we can't do a chokehold, we can
12 do an assault charge, and you can still go to
13 prison.
14 So I am adamantly opposed to it.
15 No, no, no, no, no. I hope it never comes back
16 again.
17 Thank you.
18 ACTING PRESIDENT KUHL: Senator
19 Montgomery will be recorded in the negative.
20 Senator Gold, to explain his
21 vote.
22 SENATOR GOLD: Yeah, Mr.
23 President.
24 I don't like to disagree with
25 Senator Montgomery because I have an extra
1030
1 ordinary amount of respect for her, and I do not
2 say that lightly in any respect.
3 But when Senator Leichter asked
4 me a question, I was in the middle of a thought
5 and I didn't finish it and you brought it back
6 to mind. You said to me that in the Afro
7 American community the perception is that the
8 police are occupying the community, and,
9 Senator, I want to spend time and talk to you
10 about that, because I want to figure this thing
11 out.
12 The comment that was made at the
13 hearing was that 80 percent of juvenile crime
14 happens in seven Assembly Districts. Senator, I
15 believe, if you talk about those districts and
16 we talk about a crime bill, you have more of
17 your constituents being victimized by crime than
18 I do, because the constituents in these seven
19 Assembly Districts aren't running into my
20 Assembly District and committing all of that
21 crime, and you and I know the facts on that.
22 They're committing crimes against their own
23 neighbors and in their own communities, and I
24 say to myself, even though they've got all of
25 this crime, the overwhelming number of people in
1031
1 these communities are decent people who need
2 protection, and why are -- why can't we focus or
3 get the communities to understand that the
4 police are there for those people? They're not
5 there to condone the crime; they're there to
6 protect the overwhelming number of people, and
7 minority people, very -- mostly, who are being
8 victimized.
9 Now, every police officer in the
10 city of New York is not a Liboti who kills or is
11 responsible for the death of an Afro-American or
12 a minority. We have a huge amount of the Police
13 Department in the city of New York who are
14 minorities and who work in the minority
15 communities, and I don't know why the minority
16 communities don't accept them as part of the
17 community or that he's being there for a proper
18 purpose and, Senator, if I can help understand
19 it, I want to understand that. I tell you that
20 I have to understand it, but the attitude that
21 they are "occupying" and that they are "the
22 enemy" is exactly what I think this bill tries
23 to relate to, because it's a tough job. I
24 wouldn't want the job, but a police officer
25 ought to be able to do his or her job without an
1032
1 Uzi, without a cannon and to be able to walk
2 around with respect, and I'm going to support
3 the bill.
4 ACTING PRESIDENT KUHL: Announce
5 the results.
6 THE SECRETARY: Those recorded in
7 the negative on Calendar Number 106 are Senators
8 Abate, Connor, Leichter, Markowitz, Montgomery,
9 Paterson, Rosado, Sampson, Santiago, Seabrook
10 and Smith. Ayes 47, nays 11.
11 ACTING PRESIDENT KUHL: The bill
12 is passed.
13 Senator Meier?
14 SENATOR MEIER: Is there any
15 housekeeping at the desk?
16 ACTING PRESIDENT KUHL: We have a
17 report of the Housing Committee. We'd like to
18 take it up, Senator Meier, if we could at this
19 time; so return to the order of reports of
20 standing committees. I'll ask the Secretary to
21 read.
22 THE SECRETARY: Senator Leibell,
23 from the Committee on Housing and Community
24 Development, reports the following bills:
25 Senate Print 2227, by Senator
1033
1 Leibell, an act to amend the Private Housing
2 Finance Law; and
3 Senate Print 2228, by Senator
4 Leibell, an act to amend the Public Housing
5 Law.
6 All bills ordered directly for
7 third reading.
8 ACTING PRESIDENT KUHL: Without
9 objection, all bills are ordered directly to
10 third reading.
11 Senator Meier.
12 SENATOR MEIER: Mr. President,
13 there being no further business, I move we
14 adjourn until Tuesday, February 25th, at 3:00
15 p.m.
16 ACTING PRESIDENT KUHL: Without
17 objection, hearing no objection, Senate stands
18 adjourned until tomorrow, February 25th, at 3:00
19 p.m.
20 (Whereupon at 4:15 p.m., the
21 Senate adjourned. )
22
23
24
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