Regular Session - May 12, 1997
3353
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9 ALBANY, NEW YORK
10 May 12, 1997
11 3:00 p.m.
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14 REGULAR SESSION
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18 SENATOR JOHN R. KUHL, JR., Acting President
19 STEPHEN F. SLOAN, Secretary
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1 P R O C E E D I N G S
2 ACTING PRESIDENT KUHL: Senate
3 will come to order. Ask the members to find
4 their places, staff to find their places. I'd
5 ask everybody in the chamber to rise and join me
6 in saying the Pledge of Allegiance to the Flag
7 and please remain standing for the invocation.
8 (The assemblage repeated the
9 Pledge of Allegiance to the Flag.)
10 We're very pleased to have Pastor
11 Larry Deyss of the Delmar Presbyterian Church,
12 Delmar, New York, with us to deliver the
13 invocation. Pastor Deyss.
14 REVEREND LARRY DEYSS: Let us
15 pray.
16 Almighty God, the Creator of the
17 universe so vastly measured in light years. You
18 are our hope and our judge. Hear our prayer.
19 Be with the people of this Senate as they engage
20 in a great and difficult work. Grant them wisdom
21 to deal with complex issues and courage to do
22 what needs to be done to promote the well-being
23 of all people. Grant them strength to stand
24 against great pressures so they may do what they
25 know in their heart of hearts is right to do.
3355
1 Grant them compassion so they may lift up and
2 empower the weak and the vulnerable. Be with
3 them and guide them over the weeks ahead as they
4 make a series of decisions that will profoundly
5 affect the lives of poor women, teens and
6 children. Help them to have the wisdom and the
7 courage to grasp this historic moment when they
8 have the opportunity to mitigate some of the
9 destructive aspects of the federal welfare law.
10 Guide them so that they may enact policies to
11 assist the poor in job training, to find work
12 and to maintain health care coverage which are
13 so important for well-being and dignity. These
14 are days, gracious God, when anger and meanness
15 are at work in the land. Grant the people of
16 this Senate the strength and the will to rise
17 above the free floating anxiousness and anger of
18 our times so the poor may not be scapegoats.
19 Help us to remember that over and
20 above any constituency, we are accountable unto
21 You. Let all the work done here be done with
22 such integrity and care for all Your people that
23 when our time on earth is done and we stand
24 before You, we may hear You say, well done, good
25 and faithful servant. Enter into the joy
3356
1 prepared for you. This we pray this day. Amen.
2 ACTING PRESIDENT KUHL: Reading
3 of the journal.
4 THE SECRETARY: In Senate,
5 Friday, May 9th. The Senate met pursuant to
6 adjournment, Senator Farley in the Chair upon
7 designation of the Temporary President. The
8 Journal of Thursday, May 8th, was read and
9 approved. On motion, Senate adjourned.
10 ACTING PRESIDENT KUHL: Hearing
11 no objection, the Journal stands approved as
12 read.
13 Presentation of petitions.
14 Messages from the Assembly.
15 Messages from the Governor.
16 Reports of standing committees.
17 Reports of select committees.
18 Communications and reports from
19 state officers.
20 Motions and resolutions. Chair
21 recognizes Senator Marcellino.
22 SENATOR MARCELLINO: Mr.
23 President, on page number 48, I offer the
24 following amendments to Calendar Number 338,
25 Senate Print Number 3109, and ask that said bill
3357
1 retain its place on the Third Reading Calendar.
2 ACTING PRESIDENT KUHL:
3 Amendments to Calendar Number 338 are received
4 and adopted and the bill will retain its place
5 on the Third Reading Calendar.
6 Senator Marcellino.
7 SENATOR MARCELLINO: Mr.
8 President, I move to recommit Senate Print
9 Number 4926, Calendar Number 1036, which is on
10 the order of First Report to the Committee on
11 Elections with instructions that said committee
12 strike out the enacting clause.
13 ACTING PRESIDENT KUHL: The bill
14 will be recommitted and the enacting clause will
15 be stricken.
16 SENATOR MARCELLINO: Thank you,
17 sir.
18 SENATOR LACK: Mr. President.
19 ACTING PRESIDENT KUHL: Senator
20 Lack.
21 SENATOR LACK: Thank you, Mr.
22 President. Would you please unstar Calendar
23 Number 516, S. 3527-A.
24 ACTING PRESIDENT KUHL: The star
25 will be removed on Calendar Number 516 at the
3358
1 request of the sponsor.
2 Senator Tully.
3 SENATOR TULLY: Yes, Mr.
4 President. I believe I have a privileged
5 resolution at the desk. May I please ask that it
6 be read in its entirety, following which I would
7 like to make a few brief remarks.
8 SENATOR SKELOS: Mr. President.
9 ACTING PRESIDENT KUHL: Senator
10 Skelos.
11 SENATOR SKELOS: I believe
12 there's a resolution at the desk sponsored by
13 Senator DeFrancisco. I ask that its title be
14 read and move for its immediate adoption.
15 ACTING PRESIDENT KUHL: There is
16 a privileged resolution by Senator DeFrancisco.
17 Secretary will read the title.
18 THE SECRETARY: By Senator
19 DeFrancisco, Legislative Resolution honoring the
20 students of Team 7D at Lincoln Middle School in
21 Syracuse for their participation in the 49th
22 Senate District "Good News! Good Kids!" Youth
23 Responsibility Program.
24 ACTING PRESIDENT KUHL: Senator
25 DeFrancisco, on the resolution.
3359
1 SENATOR DeFRANCISCO: Yes, Mr.
2 President. I rise to congratulate the Lincoln
3 Middle School at being the winner of the Good
4 News! Good Kids! Program that we have in
5 Onondaga County in my district, and basically
6 what the program does is honor students who do
7 good things because, unfortunately, we hear a
8 lot of negative things in the media about young
9 people.
10 This group did several projects,
11 one of which was to help in the annual Kids Fair
12 put on by one of our local TV stations that
13 allows kids to participate in certain activities
14 at our On Center, and they participated in
15 several ways. They were greeters and workers at
16 that program but, most importantly, they raised
17 close to $3,000 for the Alzheimer's Foundation
18 by raising money in various ways and also going
19 to visit people with those types of infirmities
20 and singing to them and being involved in
21 various activities and along the way learning
22 about it, and these are good things. These are
23 good kids doing good things and it happens to be
24 the middle school that used to be called the
25 Lincoln Junior High School where I attended a
3360
1 couple of years ago, so I'm very proud of this
2 group of young people and I'm sure that they
3 have continued, they're continuing new projects
4 for next year and they've done a great job and
5 I'm proud to welcome them to Albany and to tell
6 the world that we do have good kids, that it's
7 very, very good news and congratulations and
8 have a great day, Lincoln Middle School
9 students.
10 ACTING PRESIDENT KUHL: Is there
11 any other Senator wishing to speak on the
12 resolution? Hearing none, the question is on
13 the resolution. All those in favor signify by
14 saying aye.
15 (Response of "Aye.")
16 Opposed nay?
17 (There was no response.)
18 The resolution is adopted and, on
19 behalf of Senator Bruno and Senator DeFrancisco
20 and all the members of the chamber, we welcome
21 these young people from Syracuse to the
22 chamber. Enjoy your stay in Albany.
23 Senator Skelos.
24 SENATOR SKELOS: Yes, Mr.
25 President. I believe there's a resolution at
3361
1 the desk sponsored by Senator Tully. I ask that
2 it be read in its entirety and move for its
3 immediate adoption.
4 ACTING PRESIDENT KUHL: Secretary
5 will read the privileged resolution by Senator
6 Tully.
7 THE SECRETARY: By Senator Tully,
8 Legislative Resolution commending the 1997
9 Senior Class of the Henry Viscardi School of
10 Albertson, New York, upon the occasion of their
11 visit to the New York State Legislature on
12 Monday, May 12th, 1997.
13 WHEREAS, it is the sense of this
14 legislative body that the character and quality
15 of life in this great Empire State is abundantly
16 enriched by organizations which selflessly serve
17 to promote the health and welfare of the
18 citizenry; and
19 WHEREAS, this legislative body is
20 justly proud to commend the 1997 Senior Class of
21 Henry Viscardi School, Albertson, New York, upon
22 the occasion of their visit to the New York
23 State Legislature on Monday, May 12th, 1997, and
24 WHEREAS, the Henry Viscardi
25 School is a New York State chartered tuition
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1 free school educating more than 220 children
2 between the ages of 3 to 21 and with severe
3 orthopedic disabilities; over two-thirds of the
4 school's graduates go on to higher education,
5 which is more than three times the national
6 average of 20 percent; and
7 WHEREAS, the Henry Viscardi
8 School provides a full range of educational,
9 remedial, therapeutic, social and recreational
10 services provided through pre-school, kinder
11 garten, elementary and secondary school programs
12 and extended-year summer programs;
13 The National Center for
14 Disability Services, founded by Henry Viscardi,
15 had its humble beginnings in 1952, operating out
16 of a garage in West Hempstead; it now occupies a
17 14-acre wooded campus in Albertson, New York,
18 serving over 4,000 adults and children annually;
19 The Center is a non-profit agency
20 dedicated to empowering people with disabilities
21 to be active, independent and self-sufficient
22 participants in our society; it accomplishes its
23 mission through education, training, research,
24 leadership, and example;
25 The Center is internationally
3363
1 known and hosts visitors from around the world
2 who come to learn about its successes in
3 preparing individuals for meaningful careers;
4 its visitors have included the Emperor and
5 Empress of Japan; and
6 WHEREAS, the Center received one
7 of its highest honors last September 14, 1995
8 when it received the United States Department of
9 Labor Exemplary Public Interest Contribution
10 Award; this award is based on nationwide
11 competition and is presented annually to
12 organizations who exhibit unparalleled
13 leadership in assisting disadvantaged Americans
14 to -- into competitive employment;
15 The Center's work is conducted
16 through the Henry Viscardi School, the Career
17 and Employment Institute which evaluates, trains
18 and counsels adults with disabilities, and the
19 Research and Training Institute which conducts
20 research on the education, employment and career
21 development of persons with disabilities; and
22 WHEREAS, the members of the 1996
23 Senior Class of the Henry Viscardi School
24 include Maleni Alvarez, Scott Andreala, Stephen
25 Buzzerio, Lori Carrion, Elissa Figueroa, Keith
3364
1 Haarmann, Jesin Jose, Michael Kalberer, Lance
2 Palma, Kimberly Poulos, Errol Roberts, Steven
3 Michtav and Marisol Rodriguez,
4 NOW, THEREFORE, BE IT RESOLVED
5 that this legislative body pause in its
6 deliberations to express its appreciation to
7 Henry Viscardi School for meeting the special
8 needs of hundreds of children in New York State
9 and to extend a warm welcome to the faculty and
10 students on their visit to Albany; and
11 BE IT FURTHER RESOLVED that
12 copies of this resolution, suitably engrossed,
13 be transmitted to the students and faculty of
14 Henry Viscardi School.
15 ACTING PRESIDENT MARCELLINO:
16 Senator Tully.
17 SENATOR TULLY: Thank you, Mr.
18 President.
19 Today we have the distinct honor
20 of hosting the graduating class of the Henry
21 Viscardi School, and their acting superintendent
22 Henry Kunstle, in my district.
23 The Henry Viscardi School,
24 located in my town of Albertson in Nassau
25 County, specializes in treating students with
3365
1 severe disabilities throughout the entire
2 metropolitan New York region. We're privileged
3 to have these remarkable students here today to
4 witness the deliberations of this legislative
5 body, and those who were previously mentioned
6 are represented by Senator Smith, Senator
7 Skelos, Senator Padavan, Senator Rosado and
8 myself, Senator Hannon, Senator Lack and Senator
9 Levy.
10 These students of the Henry
11 Viscardi School possess a special brand of
12 strength and determination and are among the
13 most gifted students I have ever encountered.
14 Many of these graduating Seniors have plans to
15 go to college, and some have made plans to begin
16 vocational training programs in preparation for
17 the future.
18 Whether they plan to continue
19 their education or enter the work force, their
20 years at the Henry Viscardi School are a
21 priceless investment in their future that will
22 carry them throughout the rest of their lives.
23 So, students, as you prepare for
24 the next step, remember to apply your special
25 gifts and your special talents, work with
3366
1 dedication and self-discipline in all your
2 future endeavors. Have high expectations of
3 yourself and convert every challenge into an
4 opportunity. You're a credit to your family, to
5 your school, and to your community, and I extend
6 my very best wishes to you for a future filled
7 with happiness, good health and success.
8 Mr. President, I ask that all of
9 my colleagues, join me in congratulating and
10 welcoming the Senior Class of the Henry Viscardi
11 School to Albany.
12 ACTING PRESIDENT MARCELLINO: Is
13 there any other Senator wishing to be heard on
14 this motion? All in favor signify by saying
15 aye.
16 (Response of "Aye.")
17 Opposed nay.
18 (There was no response.)
19 The ayes have it. The motion is
20 unanimously passed and on a point of personal
21 privilege, I've been to the Henry Viscardi
22 School and witnessed what it does for the young
23 men and women who attend this remarkable
24 institution, and the young men and women who
25 attend this institution are remarkable people in
3367
1 their own life, and may we stand and give you a
2 round of applause and welcome you to Albany.
3 (Standing applause)
4 Senator Holland, may we return to
5 motions for a moment? Yes, the Chair recognizes
6 Senator Leibell.
7 SENATOR LEIBELL: On behalf of
8 Senator Volker, please place a sponsor's star on
9 Calendar Number 702, and on behalf -
10 ACTING PRESIDENT MARCELLINO:
11 Bill is starred.
12 SENATOR LEIBELL: And on behalf
13 of Senator Hannon, please place sponsor's stars
14 on Calendar Number 627 and 780.
15 ACTING PRESIDENT MARCELLINO: The
16 bills are starred.
17 Senator Holland, we are at the
18 reading of the non-controversial calendar.
19 SENATOR HOLLAND: That's exactly
20 it, Mr. President, please.
21 ACTING PRESIDENT MARCELLINO:
22 Secretary will read.
23 I've been informed, Senator
24 Holland, that we have some substitutions.
25 SENATOR HOLLAND: Take the
3368
1 substitutions, please.
2 ACTING PRESIDENT MARCELLINO:
3 Secretary will read.
4 THE SECRETARY: On page 12,
5 Senator Lack moves to discharge from the
6 Committee on Judiciary Assembly Bill Number 7037
7 and substitute it for the identical Second
8 Report Calendar 746.
9 On page 16, Senator Spano moves
10 to discharge from the Committee on Finance,
11 Assembly Bill Number 4563, and substitute it for
12 the identical Second Report Calendar 785.
13 And on page 53, Senator Skelos
14 moves to discharge from the Committee on Rules
15 Assembly Bill Number 357-B, and substitute it
16 for the identical Third Reading Calendar 466.
17 ACTING PRESIDENT MARCELLINO:
18 Without objection, substitutions are ordered.
19 Can we read the non-controversial
20 calendar.
21 THE SECRETARY: Calendar Number
22 280, by Senator Johnson, Senate Print 2514-A, an
23 act to amend the Real Property Tax Law.
24 ACTING PRESIDENT MARCELLINO: Lay
25 that bill aside for the day, please.
3369
1 THE SECRETARY: Calendar Number
2 322, by Senator Present, Senate Print 749-A, an
3 act to amend the Vehicle and Traffic Law, in
4 relation to snowmobiler dealer registrations.
5 ACTING PRESIDENT MARCELLINO:
6 Read the last section.
7 THE SECRETARY: Section 4. This
8 act shall take effect on the first day of
9 October.
10 ACTING PRESIDENT MARCELLINO:
11 Call the roll.
12 (The Secretary called the roll. )
13 THE SECRETARY: Ayes 53.
14 ACTING PRESIDENT MARCELLINO: The
15 bill is passed.
16 THE SECRETARY: Calendar Number
17 456, by Senator Marcellino, Senate Print -
18 ACTING PRESIDENT MARCELLINO:
19 Will you lay that bill aside for the day,
20 please.
21 THE SECRETARY: Calendar Number
22 466, substituted earlier today, by member of the
23 Assembly Weisenberg, Assembly Print 357-B, an
24 act to amend the Insurance Law, in relation to
25 providing for a reduction in rates of commercial
3370
1 risk insurance.
2 ACTING PRESIDENT MARCELLINO:
3 Read the last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect on the first day of
6 January.
7 ACTING PRESIDENT MARCELLINO:
8 Call the roll.
9 (The Secretary called the roll. )
10 THE SECRETARY: Ayes 53.
11 ACTING PRESIDENT MARCELLINO: The
12 bill is passed.
13 THE SECRETARY: Calendar Number
14 515, by Senator Lack, Senate Print 3453, an act
15 to amend the Judiciary Law, in relation to
16 payment of expenses.
17 ACTING PRESIDENT MARCELLINO:
18 Read the last section.
19 THE SECRETARY: Section 2. This
20 act shall take effect in 90 days.
21 ACTING PRESIDENT MARCELLINO:
22 Call the roll.
23 (The Secretary called the roll. )
24 THE SECRETARY: Ayes 53.
25 ACTING PRESIDENT MARCELLINO: The
3371
1 bill is passed.
2 THE SECRETARY: Calendar Number
3 535, by Senator Nozzolio, Senate Print 2285, an
4 act to amend the Vehicle and Traffic Law, in
5 relation to the imposition of a fee for the
6 reissuance of a driver's license.
7 ACTING PRESIDENT MARCELLINO:
8 Read the last section.
9 THE SECRETARY: Section 3. This
10 act shall take effect on the first day of
11 November.
12 ACTING PRESIDENT MARCELLINO:
13 Call the roll.
14 (The Secretary called the roll. )
15 THE SECRETARY: Ayes 54.
16 ACTING PRESIDENT MARCELLINO: The
17 bill is passed.
18 THE SECRETARY: Calendar Number
19 543, by Senator Levy, Senate Print 920, an act
20 to amend the Transportation Law, in relation to
21 authorizing the Commissioner of Transportation.
22 ACTING PRESIDENT MARCELLINO:
23 Read the last section.
24 THE SECRETARY: Section 2. This
25 act shall take effect immediately.
3372
1 ACTING PRESIDENT MARCELLINO:
2 Call the roll.
3 (The Secretary called the roll. )
4 THE SECRETARY: Ayes 54.
5 ACTING PRESIDENT MARCELLINO: The
6 bill is passed.
7 THE SECRETARY: Calendar Number
8 563, by Senator Wright, Senate Print 3054, an
9 act to legalize, certify and confirm the acts of
10 the Central Square School District.
11 SENATOR GOLD: Lay it aside,
12 please.
13 ACTING PRESIDENT MARCELLINO: Lay
14 the bill aside.
15 THE SECRETARY: Calendar Number
16 603, by Senator Rath, Senate Print 3639, an act
17 to amend the Town Law, in relation to building
18 permits by the building inspector.
19 ACTING PRESIDENT MARCELLINO:
20 Read the last section.
21 THE SECRETARY: Section 2. This
22 act shall take effect 180 days.
23 ACTING PRESIDENT MARCELLINO:
24 Call the roll.
25 (The Secretary called the roll. )
3373
1 THE SECRETARY: Ayes 54.
2 ACTING PRESIDENT MARCELLINO: The
3 bill is passed.
4 THE SECRETARY: Calendar Number
5 614, by Senator Maltese, Senate Print 2317, an
6 act to repeal Section 543 of the Executive Law,
7 relating to recreation programs.
8 ACTING PRESIDENT MARCELLINO:
9 Read the last section.
10 THE SECRETARY: Section 6. This
11 act shall take effect immediately.
12 ACTING PRESIDENT MARCELLINO:
13 Call the roll.
14 (The Secretary called the roll. )
15 THE SECRETARY: Ayes 54.
16 ACTING PRESIDENT MARCELLINO: The
17 bill is passed.
18 THE SECRETARY: Calendar Number
19 616, by Senator Volker, Senate Print 1233, an
20 act to amend the Executive Law, in relation to
21 civil actions against employees.
22 ACTING PRESIDENT MARCELLINO: Are
23 we laying aside 616? Lay it aside.
24 THE SECRETARY: Calendar Number
25 623, by Senator Holland, Senate Print 648, an
3374
1 act to amend the Public Health Law, in relation
2 to authorizing the Hudson Valley Emergency
3 Medical Service Council.
4 ACTING PRESIDENT MARCELLINO:
5 Read the last -
6 SENATOR GOLD: Lay aside.
7 ACTING PRESIDENT MARCELLINO: Lay
8 the bill aside, please.
9 THE SECRETARY: Calendar Number
10 628, by Senator Farley, Senate Print 1815, an
11 act to amend the Public Health Law, in relation
12 to expanding the definition of group practice to
13 apply to rural areas.
14 SENATOR DOLLINGER: Lay aside.
15 ACTING PRESIDENT MARCELLINO: Lay
16 the bill aside.
17 THE SECRETARY: Calendar Number
18 633, by Senator Tully, Senate Print 4111, an act
19 to amend Chapter 521 of the Laws of 1994.
20 ACTING PRESIDENT MARCELLINO:
21 Read the last section, please.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
24 ACTING PRESIDENT MARCELLINO:
25 Call the roll.
3375
1 (The Secretary called the roll.)
2 THE SECRETARY: Ayes 57.
3 ACTING PRESIDENT MARCELLINO: The
4 bill is passed.
5 THE SECRETARY: Calendar Number
6 646, by Senator Seward, Senate Print 4278, an
7 act to amend the Public Service Law, in relation
8 to increasing the statutory ceiling for non
9 major changes.
10 ACTING PRESIDENT MARCELLINO:
11 Read the last section, please.
12 SENATOR GOLD: Lay it aside.
13 ACTING PRESIDENT MARCELLINO: Lay
14 the bill aside.
15 SENATOR DOLLINGER: Mr.
16 President, a point of order. Did we do Calendar
17 Number 628?
18 ACTING PRESIDENT MARCELLINO: The
19 bill was laid aside, Senator.
20 SENATOR DOLLINGER: Thank you,
21 Mr. President.
22 THE SECRETARY: Calendar Number
23 649, by Senator Saland, Senate Print 665.
24 SENATOR GOLD: Lay aside.
25 ACTING PRESIDENT MARCELLINO: Lay
3376
1 the bill aside.
2 Senator Holland, the reading of
3 the non-controversial calendar has been
4 completed. Shall we proceed with the
5 controversial at this point?
6 SENATOR HOLLAND: Please, Mr.
7 President, absolutely.
8 ACTING PRESIDENT MARCELLINO:
9 Secretary will read.
10 THE SECRETARY: On page 58,
11 Calendar Number 563, by Senator Wright, Senate
12 Print 3054, an act to legalize, certify and
13 confirm the acts of the Central Square School
14 District.
15 SENATOR GOLD: Explanation.
16 ACTING PRESIDENT MARCELLINO:
17 Senator Wright, an explanation has been asked
18 for by Senator Gold.
19 SENATOR WRIGHT: Thank you, Mr.
20 President.
21 The legislation was requested on
22 behalf of the Central Square School District, a
23 school district within my Senatorial District.
24 They have pending claims totalling $249,000 on
25 three separate instances relating to transporta
3377
1 tion. They have had previous claims rejected by
2 state Ed' by virtue of the technical
3 deficiencies of signatures issued by the then
4 superintendent and then school board president,
5 both of which have changed. So we are
6 submitting the legislation consistent with the
7 recommendation of state Ed' to the school
8 district.
9 ACTING PRESIDENT MARCELLINO:
10 Read the last section.
11 THE SECRETARY: Section 3. This
12 act shall take effect immediately.
13 ACTING PRESIDENT MARCELLINO:
14 Call the roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 57.
17 ACTING PRESIDENT MARCELLINO: The
18 bill is passed.
19 THE SECRETARY: Calendar Number
20 616, by Senator Volker, Senate Print 1233, an
21 act to amend the Executive Law, in relation to
22 civil actions against employees.
23 ACTING PRESIDENT MARCELLINO:
24 Read the last -- an explanation has been asked
25 for, Senator Volker.
3378
1 SENATOR HOLLAND: Will you lay it
2 aside until we find the Senator.
3 ACTING PRESIDENT MARCELLINO:
4 O.K. We'll lay the bill aside while we move on
5 to the next one from Senator Holland.
6 THE SECRETARY: Calendar Number
7 623, by Senator Holland, Senate Print 648, an
8 act to amend the Public Health Law, in relation
9 to authorizing the Hudson Valley Emergency
10 Medical Service Council.
11 SENATOR GOLD: Explanation.
12 SENATOR HOLLAND: This bill has
13 passed for the past couple years. It was
14 recommended by the Orange County EMS service and
15 it basically says that we set up a cable
16 television programming system so that EMS
17 volunteers do not have to go to a central
18 location in a major county or big county. They
19 can learn their trade and protect the people
20 they're volunteered to protect through learning
21 through the cable television system.
22 SENATOR GOLD: Will the Senator
23 yield to a question?
24 ACTING PRESIDENT KUHL: Senator
25 Holland yield?
3379
1 SENATOR HOLLAND: Yes.
2 ACTING PRESIDENT KUHL: Senator
3 yields.
4 SENATOR GOLD: Senator, could you
5 tell me how this program is going to work?
6 Would this be educational material that's going
7 to be on that they can watch, or is this some
8 kind of information as to things that are
9 happening? Exactly what are they going to see
10 on the cable network?
11 SENATOR HOLLAND: It's basically
12 a taping of the classes that they would normally
13 take in a far training site or some facility
14 like that, that will be available for the
15 volunteers to either be on the cable system or
16 take home and see in their VCR, so they can
17 learn that way. They will still be tested so
18 they will still have to know the subject.
19 ACTING PRESIDENT KUHL: Any other
20 Senator wishing to speak on the bill? Hearing
21 none, the Secretary will read the last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect on the 30th day.
24 ACTING PRESIDENT KUHL: Call the
25 roll.
3380
1 (The Secretary called the roll. )
2 THE SECRETARY: Ayes 57.
3 ACTING PRESIDENT KUHL: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 628, by Senator Farley, Senate Print 1815, an
7 act to amend the Public Health Law, in relation
8 to expanding the definition of group practice.
9 SENATOR DOLLINGER: Explanation.
10 ACTING PRESIDENT KUHL: Senator
11 Farley, an explanation of Calendar Number 628
12 has been requested by Senator Dollinger.
13 SENATOR FARLEY: Thank you.
14 Senator Dollinger, this was a
15 bill that was brought to my attention by a
16 doctor who's chief of rheumatology, Doctor -
17 this particular doctor and two other
18 rheumatologists share a laboratory which enables
19 them to provide diagnostic services to their
20 patients that they would not be able to provide
21 as individuals.
22 What this does, under the current
23 state Department of Health law a physician is
24 prohibited from referring patients to a shared
25 laboratory because he has a financial interest
3381
1 in this laboratory. The doctor reports that the
2 Department does not consider the situation a
3 quality issue, but simply notes that this
4 interest does not fall within one of the
5 existing statutory exceptions to the prohibition
6 because the three physicians practice
7 independently and not as a group practice. The
8 laboratory is informally shared among the three
9 and this is not a formal entity in which they
10 have -- as rural practitioners, have an
11 ownership in the investment interests.
12 Were the three formally organized
13 as a group practice, the laboratory, a formal
14 entity "owned", quote, by the three doctors or
15 the laboratory operated independently, he would
16 not be prohibited from these patient referrals.
17 This legislation would correct
18 this anomaly affecting these doctors by
19 including informally shared facilities located
20 in a rural area, a county with a population of
21 200,000 or less or a town with a population
22 density of 150 persons or less per square mile
23 within the definition of group practice.
24 There's no fiscal impact to the
25 state, and I feel that what it does, it helps
3382
1 provide a higher quality of medical service and
2 particularly in the rural areas.
3 SENATOR DOLLINGER: Would the
4 sponsor yield to a question?
5 ACTING PRESIDENT KUHL: Senator
6 Farley, do you yield to a question by Senator
7 Dollinger?
8 SENATOR FARLEY: Yes, Mr.
9 President.
10 ACTING PRESIDENT KUHL: Senator
11 yields.
12 SENATOR DOLLINGER: Senator, as I
13 understand it, this would exempt from the non
14 referral rules, not referring to yourself, in
15 essence the non-referral rules. This would
16 exempt certain rural practices from those rules,
17 is that correct?
18 SENATOR FARLEY: That's correct.
19 SENATOR DOLLINGER: And my
20 question again, Senator, Mr. President, if
21 Senator Farley would yield, current -- in
22 current law, there's an exemption in 238 (a)
23 which says, An ownership interest or investment
24 shall not be subject to subdivision 1, which is
25 the anti-referral rules, if the health care
3383
1 provider authorized to provide clinical
2 laboratory services, pharmacy services, X-ray or
3 imaging services, is in a rural area and the
4 referral practitioner of the patient is in such
5 rural area.
6 My question is, don't we already
7 have this exemption under state law?
8 SENATOR FARLEY: Apparently not.
9 Mary Anne Gordineer, that's her name, from the
10 Department of Health has said that they are
11 prohibited under the current law. I did not
12 read you the subdivisions, but I'll be happy to
13 or show it to you, but all I'm saying is that
14 the Health Department per se says that they are
15 prohibited, and she actually suggested this
16 legislation.
17 SENATOR DOLLINGER: Well, through
18 you, Mr. President, I accept Senator Farley's
19 characterization. He obviously has some material
20 that I don't have with respect to the Health
21 Department's opinion about this, and I -- I
22 don't need to see it. I'm just -- my question is
23 whether we need it. It looks like there's clear
24 statutory authority for the fact that rural
25 practitioners are immune or exempt from the
3384
1 anti-referral, the self-referral provisions in
2 state law, and it seems to me that I understand
3 why his constituent is driven into this point,
4 perhaps an opinion from the Health Department
5 attached, but I would almost suggest the health
6 opinion that they simply read the law that we
7 wrote that says that people that live in rural
8 communities aren't bound by the same rigid anti
9 referral provisions that everybody else are.
10 That should be -- that's been our
11 policy in this state. It continues to be the
12 policy, and I'm afraid we're overdoing it here
13 because maybe our bureaucracy didn't quite read
14 what we wrote for them several years ago.
15 SENATOR FARLEY: I hear what
16 you're saying. Thank you, Senator. As a matter
17 of fact, I'm going to share with you my
18 memorandum.
19 SENATOR DOLLINGER: Thank you,
20 Senator.
21 I'll be voting in favor, Mr.
22 President.
23 SENATOR FARLEY: Thank you.
24 ACTING PRESIDENT KUHL: Secretary
25 will read the last section.
3385
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 57.
7 ACTING PRESIDENT KUHL: The bill
8 is passed.
9 Senator Holland.
10 SENATOR HOLLAND: Could we
11 return, Mr. President, to Calendar 616, Senator
12 Volker's bill, please.
13 ACTING PRESIDENT KUHL: Secretary
14 will read the title to Calendar 616, by Senator
15 Volker.
16 THE SECRETARY: Calendar Number
17 616, by Senator Volker, Senate Print 1233, an
18 act to amend the Executive Law, in relation to
19 civil actions against employees.
20 SENATOR PATERSON: Explanation.
21 ACTING PRESIDENT KUHL: Senator
22 Volker, an explanation has been asked for by the
23 Deputy Minority Leader, Senator Paterson.
24 SENATOR VOLKER: The
25 distinguished Deputy Minority Leader, Senator
3386
1 Paterson. O.K.
2 This bill -- what this bill would
3 do is basically conform the law to lawsuits that
4 are currently filed against the Department of
5 Corrections and Parole so that those suits would
6 have to be filed in the Court of Claims.
7 What's happened is that over the
8 years, even though the statute does not
9 necessarily provide for it, some court cases
10 have allowed lawsuits to be filed in both the
11 Supreme Court, in other words courts outside the
12 Court of Claims, and the Court of Claims. In
13 all honesty, some rather clever attorneys have
14 been playing off the Supreme Court against the
15 Court of Claims. These are suits, by the way,
16 for -- lawsuits against the State Police for
17 actions done in the course of their conduct.
18 This is not for anything that is not done in the
19 course of their employment and, of course, also
20 if the acts are intentional torts, in other
21 words if they commit acts that are intentional,
22 it would be beyond the scope of their authority
23 and, therefore, you can sue them anywhere which
24 would probably, of course, be in Supreme Court.
25 There was a memo put out, and it
3387
1 sort of dismisses the Corrections Department and
2 Parole and says this doesn't apply there. Well,
3 it doesn't apply there because right now you can
4 only sue them in the Court of Claims. So what
5 we're doing here is conforming the State Police
6 to the same rules that apply to Corrections and
7 to the Parole Department. Needless to say, this
8 bill was filed by the way, was given to me by
9 the Division of State Police.
10 Mr. President, just a couple more
11 things. The objections to this, so that you
12 realize is that the Trial Lawyers have filed an
13 objection claiming that, under a court case,
14 which is true, there has been a court case,
15 several cases on point here that have stated
16 that a litigant has the right to a trial by jury
17 in Supreme Court which you don't have in the
18 Court of Claims, and, therefore, what this bill
19 would do would be, in effect, overrule that case
20 which this Legislature clearly has the right to
21 do and provide that those claims would have to
22 be filed in the Court of Claims rather than the
23 Supreme Court and/or both places because that's
24 what a lot of these claims -- what happens to a
25 lot of these claims.
3388
1 ACTING PRESIDENT KUHL: Is there
2 any other Senator wishing 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 immediately.
7 ACTING PRESIDENT KUHL: Call the
8 roll.
9 (The Secretary called the roll. )
10 ACTING PRESIDENT KUHL: Record
11 the negatives; announce the results.
12 THE SECRETARY: Those recorded in
13 the negative on Calendar Number 616 are Senators
14 Connor, Leichter, Montgomery, Paterson and
15 Sampson. Ayes 52, nays 5.
16 ACTING PRESIDENT KUHL: The bill
17 is passed.
18 Secretary will continue to read
19 the controversial calendar in regular order.
20 THE SECRETARY: Calendar
21 Number -
22 ACTING PRESIDENT KUHL: The Chair
23 recognizes Senator Smith.
24 SENATOR SMITH: Mr. President, I
25 request unanimous consent to be recorded in the
3389
1 negative on Calendar Number 616.
2 ACTING PRESIDENT KUHL: Without
3 objection, hearing no objection, Senator Smith
4 will be recorded in the negative on Calendar
5 Number 616. Secretary will continue to read the
6 -- Senator Holland.
7 SENATOR HOLLAND: Mr. President,
8 can you recognize Senator Montgomery for a
9 minute, please.
10 ACTING PRESIDENT KUHL: Chair
11 recognizes Senator Montgomery.
12 SENATOR MONTGOMERY: Thank you.
13 Thank you, Mr. President. I would like to, on
14 behalf of one of my colleagues, Senator Al
15 Waldon, who is not here, to acknowledge in our
16 chamber a group of young people who are visiting
17 the state Capitol from the Law Government and
18 Community Service Magnet High School of Queens,
19 and they are accompanied by their class
20 coordinator, Hakim Nkoma, their science teacher,
21 Miss Thaddea Lewis and their school aide, Mr.
22 Philip White.
23 We are always happy when young
24 people can visit us and see us in action. This
25 is a day when certainly we are debating bills
3390
1 which impact on their lives and their future and
2 I welcome them and welcome the opportunity for
3 them to see their government up close.
4 ACTING PRESIDENT KUHL: Thank
5 you, Senator Montgomery.
6 Welcome on behalf of Senator
7 Waldon and Senator Holland.
8 Regular order. Secretary will
9 continue the regular order controversial
10 calendar.
11 THE SECRETARY: Calendar Number
12 646, by Senator Seward, Senate print 4278, an
13 act to amend the Public Service Law, in relation
14 to increasing the statutory ceiling for non
15 major changes.
16 ACTING PRESIDENT KUHL: Secretary
17 will read the last section.
18 THE SECRETARY: Section 5. This
19 act shall take effect immediately.
20 ACTING PRESIDENT KUHL: Senator
21 Leichter, you requesting an explanation?
22 Senator Seward, an explanation of
23 Calendar 646 has been requested by Senator
24 Leichter.
25 SENATOR SEWARD: Certainly, Mr.
3391
1 President. This is a bill which has passed in
2 the past unanimously. It would change the
3 definition of a major change in rates for
4 electric, gas, steam, water or telephone
5 services to mean -- the change would mean an
6 increase in the aggregate revenues in excess of
7 the greater of either $300,000 or 2.5 percent.
8 Under this change, the definition would increase
9 the statutory ceiling from the current 100,000
10 to 300,000 for the non-major changes.
11 This -- this has not changed
12 since the 1930s, and it is meant to assist the
13 customers of some of our smaller utility
14 companies to avoid the high costs of going
15 through a full-blown public hearing process when
16 we're really looking at some non-major changes
17 in rates.
18 ACTING PRESIDENT KUHL: Any other
19 Senator wishing to speak on the bill? Hearing
20 none, Secretary will read the last section.
21 THE SECRETARY: Section 5. This
22 act shall take effect immediately.
23 ACTING PRESIDENT KUHL: Call the
24 roll.
25 (The Secretary called the roll. )
3392
1 THE SECRETARY: Ayes 57.
2 ACTING PRESIDENT KUHL: The bill
3 is passed.
4 THE SECRETARY: Calendar Number
5 649, by Senator Saland, Senate Print 665, an act
6 to amend the Criminal Procedure Law, the Family
7 Court Act, the Penal Law and the Public Health
8 Law, in relation to the testing of certain
9 criminal defendants.
10 SENATOR LEICHTER: Explanation.
11 ACTING PRESIDENT KUHL: Senator
12 Saland, an explanation has been asked for by the
13 Acting Minority Leader, Senator Leichter.
14 SENATOR SALAND: Thank you, Mr.
15 President.
16 Mr. President, this bill is a
17 bill which this chamber has entertained
18 previously. It's a bill which builds on the
19 efforts of this house to deal with the issue of
20 people who have been subjected to sexual
21 offenses, who desire the ability to make
22 application to a court to determine if, in fact,
23 their -- the perpetrator of these acts, these
24 sexual offenses or in other cases assaults as
25 defined in the bill, are in fact carriers of a
3393
1 transmissible disease.
2 The bill does a number of
3 things. We well recall that back in 1995 we
4 passed legislation which enabled New York to
5 require testing where there had been a
6 conviction. This bill attempts to do some
7 additional changes to the law. First it adds to
8 the list of crimes for which court ordered
9 testing could be required.
10 Second, it permits the testing,
11 not merely post-conviction but permits it
12 pre-conviction.
13 Thirdly, it continues to maintain
14 confidentiality, which certainly is something
15 which I believe we should all be concerned with
16 and it attempts to balance both confidentiality
17 and the needs of victims so what this bill does
18 in many respects is akin to what is already
19 permitted in the federal law.
20 Under federal law, even right
21 here in the state of New York, a victim can make
22 application to a federal court and the case
23 currently allows the state court to get
24 permission through the order of a federal judge
25 to have an assailant tested pre-conviction.
3394
1 ACTING PRESIDENT KUHL: Senator
2 Leichter.
3 SENATOR LEICHTER: Yes, Mr.
4 President. If Senator Saland will yield to
5 several questions.
6 ACTING PRESIDENT KUHL: Senator
7 Saland, do you yield to Senator Leichter?
8 SENATOR SALAND: Yes.
9 ACTING PRESIDENT KUHL: Senator
10 yields.
11 SENATOR LEICHTER: Senator, what
12 sort of tests, or shall I say standard, is used
13 by the courts in determining whether to permit
14 the testing of a defendant prior to conviction?
15 SENATOR SALAND: Senator
16 Leichter, the bill provides for the means by
17 which the applicant can make his or her
18 application and the procedure by which that will
19 be entertained, and I'm thumbing through the
20 bill looking for the exact section as I attempt
21 to respond to you. I'm looking for the section
22 and in the absence of my ability to find it, let
23 me give you, in substance, as I recollect.
24 What the bill does is, it enables
25 the petitioner to make application to the court.
3395
1 One of the conditions precedent to that applica
2 tion is her or his being advised of the import
3 ance of counseling, in fact that there has been
4 counseling involved.
5 The bill then goes on to provide
6 that, upon the request being made, the authori
7 zation shall be to undergo prompt readily
8 accessible and scientifically recognized
9 laboratory testing at state expense.
10 SENATOR LEICHTER: Mr. President,
11 if Senator Saland will continue to yield?
12 ACTING PRESIDENT KUHL: Senator
13 Saland, do you continue to yield?
14 SENATOR SALAND: Yes, Mr.
15 President.
16 ACTING PRESIDENT KUHL: Senator
17 continues to yield.
18 SENATOR LEICHTER: Mr. President,
19 what you just read doesn't address my question.
20 What I'm concerned about is that we have an
21 instance here where somebody is charged with a
22 crime but not yet convicted, and what I -- there
23 obviously has to be a hearing which your bill
24 sets up to determine if the defendant, the
25 unconvicted defendant, is to be tested, and my
3396
1 question to you is, does your bill set forth any
2 standard by which the court is to determine that
3 this defendant is to be tested?
4 This defendant, he's not been
5 convicted; he has certain constitutional
6 rights. He's presumed to be innocent. Does
7 there have to be a finding of probable cause or
8 some other standard that your bill sets forth?
9 SENATOR SALAND: I'm looking at
10 page 1 of the bill, paragraph 7.
11 SENATOR LEICHTER: Senator, I
12 don't think that sets forth any standard that
13 the court is to apply in determining whether a
14 test should be made. If I may continue,
15 Senator, it seems to me that this bill -- and I
16 can't say I've exhaustively studied it, but it
17 doesn't seem to set forth any standard at all
18 for a decision that a defendant has been
19 indicted and charged in one of the enumerated
20 crimes.
21 SENATOR SALAND: Senator
22 Leichter, if that -- if that implies a
23 constitutional argument, in effect a privacy
24 argument, I do believe the fact that we require
25 under this bill that there be either an
3397
1 indictment or being held over on an information
2 is adequate to establish the probable cause that
3 a long line of cases, be they Supreme -- U. S.
4 Supreme Court cases or state appellate court
5 cases, have already determined to be adequate,
6 and, in fact, as I mentioned earlier, this
7 method does exist in the state of New York.
8 Unfortunately, the applicant is required to go
9 to federal court and go through a rather lengthy
10 process, and I recall reading not too long ago,
11 probably near the end of last year of one
12 instance in which the district attorney in Kings
13 County, in Brooklyn, had a case involving a
14 precedent rape victim and due to the inability
15 to access the means to test in state court, his
16 office was forced to petition the federal court
17 to -- on behalf of the victim to learn if that
18 -- if the defendant was HIV positive and what
19 had occurred was that -- I believe months of
20 litigation before the order was finally entered
21 by the court.
22 SENATOR LEICHTER: Well, Senator,
23 if you'll continue to yield.
24 ACTING PRESIDENT KUHL: Senator
25 Saland, do you continue to yield?
3398
1 SENATOR SALAND: Yes, Mr.
2 President.
3 ACTING PRESIDENT KUHL: Senator
4 continues to yield.
5 SENATOR LEICHTER: I am concerned
6 that when you subject somebody who is presumed
7 to be innocent to a test, that I -- that the
8 absence either of finding probable cause beyond
9 just the mere fact that somebody has been
10 indicted or there's an information or making a
11 showing of medically necessary, now I think with
12 some of the changes that have occurred in the
13 treatment of AIDS, it may well be that if
14 somebody who is pregnant is raped, that there's
15 a medical benefit in finding out if the alleged
16 perpetrator was HIV infected or infected with
17 some other sexually transmitable disease.
18 But your bill isn't limited to
19 that. Your bill involves any number of
20 instances where I submit to you, you have failed
21 to show that there's a medical -- or I can show
22 you there's no medical advantage. So at the
23 very least, shouldn't you, in those instances,
24 require the court to make some finding that the
25 defendant, beyond just the indictment or the
3399
1 information, probably committed the act that
2 he's charged with?
3 SENATOR SALAND: There is no way
4 that you could possibly expect that there would
5 be any ruling by a court on such an application
6 that did not fail to meet some evidentiary
7 standard adequate for purposes of probable cause
8 and again -- again, the essence of the case law
9 is, is there probable cause on the one hand and
10 secondly, is there a reasonable medical
11 procedure available to accomplish the ends of
12 the testing?
13 SENATOR LEICHTER: Mr. President,
14 if the good Senator will continue to yield.
15 ACTING PRESIDENT KUHL: Senator
16 Saland, do you continue to yield?
17 SENATOR SALAND: Yes, Mr.
18 President.
19 SENATOR LEICHTER: It may be that
20 some of the cases have correctly set forth that
21 standard, and why didn't you put that in your
22 bill? Why did you infer or imply what the
23 courts will do? Why didn't you just write it in
24 your bill?
25 SENATOR SALAND: Let me suggest
3400
1 to you, and perhaps I was looking in the wrong
2 section, over on page 3, line 45, establishes a
3 "good cause" measure which determines whether,
4 in fact, the court will entertain the applica
5 tion and, in turn, rule on the application.
6 SENATOR LEICHTER: Senator
7 Saland, if you will continue to yield.
8 ACTING PRESIDENT KUHL: Senator
9 Saland, do you continue to yield? Senator
10 Saland, do you continue to yield?
11 SENATOR SALAND: Yes, Mr.
12 President.
13 ACTING PRESIDENT KUHL: Senator
14 continues to yield, I think. Senator Leichter,
15 I'm not sure.
16 SENATOR LEICHTER: Yes, let us -
17 just so we move this along, if you would yield
18 for a number of questions, Senator Saland. I
19 know he always does and very vigorously and
20 effectively defends his bills. But, Senator,
21 that particular provision that you've read to me
22 deals only with persons who are convicted. It
23 doesn't address the example that you and I were
24 discussing of an unconvicted defendant.
25 SENATOR SALAND: Senator
3401
1 Leichter, in my haste to try and find the
2 section, I'm having difficulty listening and
3 responding and looking all at once. I would
4 repeat again to you that there has to be, as
5 well you know as a practicing attorney, a
6 standard, and the standard has to be one which
7 assures that the individual who is proposed to
8 be the subject of the test, the so-called
9 perpetrator, is in fact not being denied his or
10 her rights.
11 SENATOR LEICHTER: Well, Mr.
12 President. Let me ask you -- let's put that
13 aside, Senator, and I'd like to afterwards
14 address that because I think it's a real
15 weakness in the bill, but let me ask you about a
16 convicted defendant, and I have a lot of
17 problems understanding.
18 Generally with convicted
19 defendants, we don't have the problem that some
20 of the due process issues are different, there's
21 no question about that, but there I have
22 difficulty seeing how there can ever be a
23 benefit. I mean conviction occurs, as we know
24 particularly for crimes of this nature, months
25 and sometimes well over a year or even two years
3402
1 after the crime was committed. What is -- what
2 possible medical benefit can there be to test
3 somebody after that long period of time?
4 That -- the victim should have
5 been tested and should have been counselled long
6 ago to be tested. Let's -- what do you
7 conceivably gain medically by testing somebody
8 two years after they allegedly committed or a
9 rape to see if that person is HIV positive?
10 SENATOR SALAND: Let me suggest
11 to you, Senator Leichter, that I think you've
12 just, at least in substantial part, made my
13 argument for why we should have pre-conviction
14 testing. I have advocated probably back in 1992
15 or 1993 for that particular standard.
16 The bill that ultimately was
17 passed in 1995 was somewhat, I must confess
18 disappointingly to me, limited to the post
19 conviction standard. I do believe that there
20 will be a number of victims who may be
21 interested by even a post-conviction standard
22 but I think the value of this kind of a law is
23 to move up the date and time of testing and to
24 make it applicable prior to conviction which, as
25 you know, can take a considerable amount of
3403
1 time.
2 SENATOR LEICHTER: Yes.
3 ACTING PRESIDENT KUHL: Senator
4 Leichter.
5 SENATOR LEICHTER: Senator Saland
6 then, if you will continue to yield.
7 Then you agree with me that as
8 far as post-conviction testing is concerned,
9 it's a very limited or marginal benefit, and in
10 fact I can't see any benefit at all. Can you
11 give me an example -
12 SENATOR SALAND: I think -
13 SENATOR LEICHTER: Could you just
14 give me one example of a conviction other than
15 if the conviction should occur within a month of
16 the alleged act, and I think that's almost
17 impossible and unheard of in our legal system,
18 but can you give me any benefit whatsoever to
19 testing a convicted defendant after conviction,
20 after sentencing? What medical benefit is there?
21 SENATOR SALAND: Well, number
22 one, please don't impute that what I'm doing
23 here is using the medical benefit standard. I
24 mean the medical benefit standard doesn't deal
25 with things such as psychological or psychiatric
3404
1 trauma which many victims, unfortunately, endure
2 as part of being violated. There certainly is
3 not necessarily the clear-cut medical benefit
4 standard that you happen to be looking for, but
5 let me suggest to you I would not characterize
6 my position as being one that saw concerns of a
7 minimal benefit from post-conviction testing.
8 We have gone through this debate before and you,
9 perhaps more than I, are certainly one of the
10 most outstanding members of this chamber on
11 issues of choice. You're constantly talking
12 about issues of choice, and this is no more than
13 a choice bill.
14 This is a bill which basically is
15 going to repose in someone who has been violated
16 the ability to make application, use his or her
17 intellect to determine whether or not, after
18 being in counseling, they wish to have -- after
19 being subjected to participation in counseling,
20 they wish to have their assailant tested.
21 I'm all for moving it back.
22 Governor Cuomo, in 1990, constituted a task
23 force that came out in favor of pre-conviction
24 testing with no medical, reasonable -- no
25 "medically reasonable" standard required, so
3405
1 that occurred in 1990. He disavowed it or
2 ignored it, but he is the one who had a task
3 force constituted which included medical people
4 as well that came to that conclusion.
5 ACTING PRESIDENT KUHL: Senator
6 Leichter, does that complete your interrogation
7 of Senator Saland?
8 SENATOR LEICHTER: I believe the
9 Acting Majority Leader is anxious to be heard.
10 ACTING PRESIDENT KUHL: Did you
11 have any further questions?
12 SENATOR LEICHTER: Yes, I do.
13 ACTING PRESIDENT KUHL: Senator
14 Holland?
15 SENATOR HOLLAND: Could we
16 suspend the debate for a moment and open the
17 roll for Senator Wright, please.
18 THE SECRETARY: Section 8. This
19 act shall take effect immediately.
20 ACTING PRESIDENT KUHL: Call the
21 roll.
22 THE SECRETARY: Senator Wright.
23 ACTING PRESIDENT KUHL: Senator
24 Wright, how do you vote?
25 SENATOR WRIGHT: Aye.
3406
1 ACTING PRESIDENT KUHL: The roll
2 call is withdrawn.
3 Are you asking Senator Saland to
4 yield?
5 SENATOR LEICHTER: Yes, I am.
6 ACTING PRESIDENT KUHL: Senator
7 Saland, do you continue to yield?
8 SENATOR SALAND: Yes, I do,
9 Senator.
10 After I gave him all those
11 accolades, Senator, what possibly, after all
12 those accolades, can you stand up and ask?
13 Senator Gold was unhappy about it, but that's
14 all right.
15 SENATOR LEICHTER: I appreciate
16 your accolades, Senator, but I think that to
17 infer that this is a matter of choice, certainly
18 the choice of the victim should be to be tested,
19 and I happen to think that those parts of your
20 bill which move toward testing of the victim are
21 absolutely correct. We need to test the victim,
22 and I'd like to do that at state expense, but
23 that's the choice of the victim.
24 You're not -- you're not taking
25 the position that choice means that I can use
3407
1 what will happen to you, and that's really what
2 you're arguing in this instance.
3 SENATOR SALAND: You know,
4 Senator Leichter, what I'm arguing is that there
5 is a probable cause standard which says that if
6 you've been indicted, if you've been held over
7 on an information, you have reached that
8 plateau, evidentiary plateau, that's adequate to
9 enable this type of testing, and there are
10 people in the state of New York even in state
11 court proceedings that have the ability, through
12 a somewhat lengthier perhaps more tortured way,
13 to make application to a federal court to get an
14 order to enable them to do this, and there's no
15 -- no intention here, nor would I ever intend
16 to violate anybody's confidentiality, and this
17 bill, I believe accommodates that confidential
18 ity.
19 I believe this bill represents a
20 balance of the interests of the victim with the
21 rights of confidentiality after a probable cause
22 standard has been met of the defendant. I
23 believe, under the circumstances, that is an
24 appropriate way for us to intervene and to
25 assist the victim.
3408
1 SENATOR LEICHTER: Mr. President,
2 if Senator Saland would yield, we'll try to make
3 this the last question. I will try.
4 Senator Saland, let me go back to
5 a question I asked you before, and I don't
6 believe you answered it. Dealing now with the
7 convicted defendant, convicted person, of some
8 crime involving the possibility of sexual
9 transmitted disease, can you give me one
10 example, one example of a medical benefit that
11 would occur of testing a convicted person other
12 than the very dubious matter that you threw out,
13 Well, it may be psychologically satisfying to
14 the victim.
15 That's not a medical benefit to
16 the -- to the victim. Can you give me, other
17 than that, any medical benefit?
18 SENATOR SALAND: Senator
19 Leichter, I would come back to what I said
20 before, and I would add to that, I do not
21 understand why, with the protection of the
22 confidentiality that has been provided, why
23 there should be any public policy that would
24 oppose this type of testing.
25 There is no reason in the world,
3409
1 if you've sat through the countless hearings I
2 have sat through, if you've met with the various
3 victims that I've met with and yes, I will
4 acknowledge that there's a difference of opinion
5 in some of the victims' advocacy community, and
6 if you sat through that and if you could show me
7 where the prejudice is, where there is a
8 likelihood or the possibility of the violation
9 of confidentiality, perhaps I would pause and
10 reflect on what you're having to say, but we're
11 obviously coming to our respective conclusions
12 180 degrees apart, and there is little or no
13 ability, I believe, to reconcile those
14 differences.
15 We've certainly gone through this
16 debate before, and I say nothing to denigrate
17 the position that you take. It's one with which
18 I vehemently disagree, and obviously you with
19 equal fervor disagree with my position.
20 SENATOR LEICHTER: Mr.
21 President. Thank you very much, Senator Saland,
22 for your usual vigorous defense of this bill.
23 But I must say, Senator, I've not
24 heard in any of our debates what I think must be
25 the premise, the basis, for this bill. This is
3410
1 a medical benefit, a medical benefit for the
2 victim and, absent that, Senator, I have very
3 grave reservations why we should do this. I
4 think it essentially is a punitive bill.
5 Now, people who commit serious
6 crimes ought to be punished, and we do punish
7 them, but you can't go and take somebody's blood
8 unless there's a justification for it, and that
9 justification is lacking.
10 Let me just review your bill. It
11 has two parts. It deals with defendants charged
12 with crime, and it deals with defendants who
13 have been convicted. Let's take the latter
14 first.
15 Defendants who have been
16 convicted, I asked you a number of times, give
17 me one example having in mind the lapse of time
18 between the commission of a crime and conviction
19 in this state or probably in any society that
20 provides due process, given that length of time
21 show me any medical benefit, and other than
22 throwing out some hint that, well, maybe it will
23 be psychologically satisfying for the victim,
24 you've been unable to give me one instance where
25 there's a benefit and, of course, there is no
3411
1 benefit because if there is a sexually
2 transmitted disease, what you need to do is to
3 test the victim, and we ought to counsel the
4 victim for testing, and I like that portion of
5 the bill which gives the victim the right to be
6 tested at state expense. I think that is a
7 proper thing to do, and we ought to set up and
8 we ought to have a procedure whereby people who
9 have been victimized in a crime where there's a
10 possibility that they will contact AIDS or other
11 sexually transmitted disease, we ought to
12 counsel them to be tested immediately. They
13 shouldn't wait for the testing of the person
14 alleged to have committed the crime, and they
15 certainly shouldn't wait until conviction two
16 years later.
17 So I find no reason -- I have no
18 sympathy for somebody who has been found guilty
19 of committing such a crime, and I hope they're
20 in jail and I hope they're there for a long
21 time, but I'm not going to say, Well, we ought
22 to take their blood when there's no medical
23 benefit whatsoever. I don't think that we can
24 do it, and I don't think we gain anything by
25 doing it.
3412
1 Now, let's take the instance of a
2 person who is charged with a crime. A person
3 charged with a crime in almost 90 percent or 95
4 percent of the cases, given the current
5 knowledge of medical information, current
6 medical knowledge about AIDS, there is no
7 benefit in testing the defendant. You've got to
8 test the victim. You test the defendant -- and
9 we've been through this, Senator, and you've
10 never been able to answer it and everybody who
11 deals with this terrible disease of AIDS and
12 while your bill now refers to other sexually
13 transmitted diseases, essentially what
14 motivates, what prompts this bill is that
15 terrible disease of AIDS and everybody who deals
16 with it says, if you just test the defendant
17 that's insufficient, because the defendant may
18 be passing the HIV virus, but he may not test or
19 she may not test positive but, if you have -- if
20 you have an instance where the person does test
21 positive, in any event you've got to test the
22 victim. So the whole emphasis and our whole
23 orientation ought to be in testing the victim.
24 Now, you mentioned one case where
25 maybe there is a medical benefit because
3413
1 apparently medical knowledge now shows that, if
2 a woman is pregnant and she is HIV positive,
3 that by giving certain medications we may be
4 able to prevent the disease from passing on to
5 the child that she's carrying in her womb. So
6 under those circumstances maybe there's some
7 benefit in testing the defendant.
8 Certainly again you've got to
9 test the victim and that's really what the key
10 to the whole thing is, let's test the victim,
11 but I think maybe you want to be guided -
12 SENATOR SALAND: Mr. President,
13 will Senator Leichter yield to a question?
14 ACTING PRESIDENT KUHL: Senator
15 Leichter, do you yield to a question from
16 Senator Saland?
17 SENATOR LEICHTER: Yes.
18 ACTING PRESIDENT KUHL: Senator
19 does.
20 SENATOR SALAND: Senator
21 Leichter, in the course of our several debates
22 prior to today, have you ever heard me say that
23 the only person to be tested is the defendant,
24 or did you ever hear me say that the victim
25 should not be tested, because I think, Senator
3414
1 Leichter, this bill is premised, if you had
2 taken pains to read it, and regrettably my
3 calendar today did not permit me to review it
4 word by word, but it requires that the victim be
5 counselled; it enables the victim to self-test.
6 There can be no dealing with this issue, at
7 least this much we can agree on, without testing
8 of the victim and that service is provided for
9 in here and, as I said earlier, what we're
10 talking about is enabling people of their own
11 volition to make choices, guided by people who
12 have far more expertise than I believe anybody
13 in this chamber does. Again, having been
14 counselled by an appropriate counselor, to
15 enable him or her to arrive at the course of
16 treatment or as to whether to test even.
17 SENATOR LEICHTER: Senator, I've
18 said twice now, which shows that I did read your
19 bill, I've said twice that I like that part of
20 your bill which encourages testing of the
21 victim, and you've never said in all our debates
22 we shouldn't test the victim.
23 The question though is, what do
24 you gain by testing the defendant and that's
25 what I'm addressing, and I gave you, in fact,
3415
1 credit or at least gave you an example where
2 maybe you could find some benefit in testing the
3 defendant and that really came about just
4 recently because we now think that we can
5 possibly prevent or minimize the occurrence of
6 AIDS or HIV virus in a fetus.
7 So, in those instances where -
8 and I think that's really only where there would
9 be the rape of a pregnant woman, and I'm not so
10 sure that once the medical knowledge shows that
11 where the fetus was conceived by somebody who
12 had -- who was HIV positive that there may be an
13 ability to stop the spread of the disease, I
14 don't know if that's the case where somebody who
15 is already pregnant is raped, but certainly
16 where, as a result of a rape, the person becomes
17 pregnant and wishes to carry the fetus to term,
18 there may be some benefit by testing the
19 defendant.
20 Obviously you again have to test
21 the victim. But what you should do in those
22 cases, Senator, is require a finding by the
23 court that it is medically beneficial and that's
24 the problem I have with that part of your bill
25 which provides for the testing of somebody who
3416
1 is charged with a crime but has not yet been
2 convicted. In those instances, you need to have
3 some tests for the court. You don't have that
4 test. You try to read that test. You say,
5 well, of course, the court is going to do that.
6 I think you need a test both that is medically
7 beneficial and there needs to be probably or
8 there needs to be some probable cause conclusion
9 by the court.
10 So my difficulty with this bill,
11 Senator, is that I think this bill is a punitive
12 bill. It's a bill that's written without regard
13 to knowledge of what these sexually transmitted
14 diseases are. If you want to put the focus on
15 the victim, do that, put forth a bill that would
16 be helpful, that would be of social benefit,
17 that would assist people, but that's not really
18 what you have done. You want to be punitive. I
19 don't mind being punitive of people who have
20 committed these serious crimes, but the
21 punishment that we provide is time in jail, it's
22 not taking their blood two years later, and
23 particularly when you may actually end up
24 misleading victims who think, well, they're
25 going to be testing this person who committed
3417
1 this crime against me, and that in some way will
2 prevent my needing to be tested.
3 That's not the case, so, Senator,
4 those of us who vote against the bill -- and
5 there were a number of us -- do so not because
6 we have any sympathy for people who commit these
7 crimes, but we want to do something that really
8 helps the victims, and your bill doesn't, and I
9 think you had this bill before us in 1996, and I
10 see that Senators Abate, Connor, Espada,
11 Leichter, Markowitz, Mendez, Nanula, Paterson,
12 Santiago, Seabrook, Smith and Goodman voted
13 against the bill and similar bills that you've
14 had in other years.
15 A large number of people have
16 voted against solely and exclusively because it
17 fails to really assist victims.
18 ACTING PRESIDENT KUHL: Is there
19 any other Senator wishing to speak on the bill?
20 Hearing none, the Secretary will read the last
21 section.
22 THE SECRETARY: Section 8. This
23 act shall take effect immediately.
24 ACTING PRESIDENT KUHL: Call the
25 roll.
3418
1 (The Secretary called the roll. )
2 ACTING PRESIDENT KUHL: Record
3 the negatives.
4 The Chair recognizes Senator
5 Abate, to explain her vote.
6 SENATOR ABATE: Yes, I'd like to
7 explain my vote.
8 As last year, again this year I
9 am voting against this bill. Like Senator
10 Saland and like Senator Leichter and the other
11 state Senators in the chamber, I too care about
12 crime victims, but in the name of crime victims
13 we can not offer them half a solution. What
14 they want is for the justice system to convict
15 individuals, to punish them, and in many cases
16 incapacitate those individuals. This bill does
17 not provide any real relief to crime victims.
18 I am basing my conclusion on the
19 recommendations made by the Governor's AIDS
20 Advisory Committee and also basing my opposition
21 on recent conversations I've had with the State
22 Coalition against Sexual Fault. This is a
23 coalition that represents crime victims
24 throughout the state.
25 What they want and what they say
3419
1 is they would support, and I would support
2 testing of defendants. Again these are
3 individuals not convicted, if in fact that
4 testing in individual circumstances provides a
5 medical benefit to the crime victim.
6 What this bill is silent on is
7 what we need for crime victims, and I'm hearing
8 there too from crime victims around the state.
9 They want PCR testing, and that is a testing
10 which is viral testing which shows whether a
11 victim has the virus. They do not want the
12 current state of the art testing which is the
13 elixir, and the elixir or the test that only
14 tests for antibodies.
15 They also want prophylactic
16 treatment on one and two hours of exposure. They
17 want health and law enforcement statewide
18 protocols to ensure that they get PCR testing
19 and treatment immediately and they want
20 mandatory counseling.
21 I look forward to working with
22 Senator Saland that incorporates a bill with
23 these provisions and that only for testing that
24 provides medical benefit to the victim. I hope
25 we can reach a compromise on this bill, and I'm
3420
1 available to work with Senator Saland.
2 I vote no.
3 ACTING PRESIDENT KUHL: Senator
4 Abate will be recorded in the negative.
5 Announce the results.
6 THE SECRETARY: Those recorded in
7 the negative on Calendar Number 649 are Senators
8 Abate, Breslin, Connor, Goodman, Leichter,
9 Markowitz, Montgomery, Paterson, Rosado,
10 Sampson, Santiago, Seabrook, Smith and Waldon.
11 Ayes 46, nays 14.
12 ACTING PRESIDENT KUHL: The bill
13 is passed.
14 Senator Holland.
15 SENATOR HOLLAND: Mr. President,
16 is there any housekeeping at the desk?
17 ACTING PRESIDENT KUHL: Yes,
18 there is. If we may return to the order of
19 motions and resolutions, the Chair would
20 recognize Senator Farley.
21 SENATOR FARLEY: Thank you, Mr.
22 President.
23 On behalf of Senator Marchi, on
24 page 45, I offer the following amendments to
25 Calendar Number 257, Senate Print 2581-A, and I
3421
1 ask that that bill retain its place on the Third
2 Reading Calendar.
3 ACTING PRESIDENT KUHL:
4 Amendments are received and adopted, and the
5 bill will retain its place on the Third Reading
6 Calendar.
7 Senator Farley.
8 SENATOR FARLEY: Mr. President,
9 on behalf of Senator Trunzo -- complicated
10 motion here -- I wish to call up Calendar Number
11 337, Assembly Print 2997.
12 ACTING PRESIDENT KUHL: Secretary
13 will read.
14 THE SECRETARY: Calendar Number
15 337, by member of the Assembly Vitaliano,
16 Assembly Print 2997, an act to amend the Civil
17 Service Law.
18 SENATOR FARLEY: I now move to
19 reconsider the vote by which this Assembly bill
20 was substituted for Senator Trunzo's bill,
21 Senate Print Number 1947, on March 18, 1997.
22 ACTING PRESIDENT KUHL: I think
23 the entire chamber is waiting to see if you get
24 this right, Senator Farley.
25 SENATOR FARLEY: I'm getting it
3422
1 right.
2 ACTING PRESIDENT KUHL: Secretary
3 will call the roll on reconsideration.
4 (The Secretary called the roll on
5 reconsideration. )
6 ACTING PRESIDENT KUHL: Senator
7 Farley.
8 SENATOR FARLEY: I now move this
9 Assembly Bill Number 2997 be committed to the
10 Committee on Rules and that Senator Trunzo's
11 Senate bill be restored to the order of Third
12 Reading, Calendar Number 337.
13 You must act here and say it's in
14 the affirmative. It's up to you now.
15 ACTING PRESIDENT KUHL: Thank
16 you, Senator Farley, but we will commit the bill
17 and restore the Senate bill to the Third Reading
18 Calendar.
19 SENATOR FARLEY: You got it!
20 ACTING PRESIDENT KUHL: Thank
21 you, Senator Farley.
22 SENATOR HOLLAND: Will you
23 recognize Senator Nanula, please, Mr. President.
24 ACTING PRESIDENT KUHL: Senator
25 Nanula.
3423
1 SENATOR NANULA: Thank you, Mr.
2 President.
3 I'd like to request unanimous
4 consent to be recorded in the negative on
5 Calendar Number 649.
6 ACTING PRESIDENT KUHL: Without
7 objection, hearing no objection, Senator Nanula
8 will be recorded in the negative on Calendar
9 Number 649.
10 Senator Holland.
11 SENATOR HOLLAND: I want to
12 congratulate Senator Farley on that motion we
13 had, and there being no further business, I move
14 that we adjourn until Tuesday, May 13th, at 3:00
15 p.m.
16 ACTING PRESIDENT KUHL: Without
17 objection, the Senate stands adjourned until
18 tomorrow, Tuesday, May 13th, at 3:00 p.m.
19 (Whereupon, at 4:20 p.m., the
20 Senate adjourned.)
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