Regular Session - May 28, 1997
4196
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9 ALBANY, NEW YORK
10 May 28, 1997
11 3:06 p.m.
12
13 REGULAR SESSION
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17 LT. GOVERNOR BETSY McCAUGHEY ROSS, President
18 STEPHEN F. SLOAN, Secretary
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4197
1 P R O C E E D I N G S
2 THE PRESIDENT: The Senate will
3 come to order. Would you please rise and join me
4 in the Pledge of Allegiance.
5 (The assemblage repeated the
6 Pledge of Allegiance to the Flag. )
7 May we bow our heads in a moment
8 of silence.
9 (A moment of silence was
10 observed. )
11 The reading of the Journal,
12 please.
13 THE SECRETARY: In Senate,
14 Tuesday, May 27th. The Senate met pursuant to
15 adjournment. The Journal of Saturday, May 24th,
16 was read and approved. On motion, Senate
17 adjourned.
18 THE PRESIDENT: Without
19 objection, the Journal stands approved as read.
20 Presentation of petitions.
21 Messages from the Assembly.
22 Messages from the Governor.
23 Reports of standing committees.
24 Secretary will read.
25 THE SECRETARY: Senator Lack,
4198
1 from the Committee on Judiciary, hands up the
2 following nomination:
3 As a judge of the New York State
4 Court of Claims, Russell P. Buscaglia, of Erie
5 County.
6 THE PRESIDENT: Senator Lack.
7 SENATOR LACK: Thank you, Madam
8 President.
9 I rise to move the nomination of
10 Russell P. Buscaglia, of Erie County, who has
11 been nominated by the Governor as a judge of the
12 New York State Court of Claims. Mr. Buscaglia
13 has been examined by myself and the staff of the
14 committee. His credentials have been found to
15 be certainly honorable. He appeared before the
16 committee this morning, was unanimously voted to
17 the floor of the Senate, and it's with pleasure
18 that I -- where is Senator Rath? -- that I
19 yield for the purpose of a seconding to Senator
20 Rath.
21 ACTING PRESIDENT MARCELLINO: The
22 Chair recognizes Senator Rath.
23 SENATOR RATH: Yes, it gives me
24 great pleasure to rise on behalf of a friend and
25 a colleague from Erie County, Russ Buscaglia, as
4199
1 he ascends to the bench. Let me say, by way of
2 background, Mr. Buscaglia served in the United
3 States Attorney's office, the Erie County
4 District Attorney's office, served in private
5 practice, and has served in many and varied
6 community organizations and activities.
7 He, of course, went to SUNY
8 Buffalo which all of us take with great pride
9 when one of our folks from SUNY-Buffalo ascends
10 to the bench. It's with great pleasure and
11 pride that I second the nomination of Russ
12 Buscaglia.
13 ACTING PRESIDENT MARCELLINO:
14 Senator Volker.
15 SENATOR VOLKER: Yes, if I may
16 say also that I want to offer my congratulations
17 to the Governor for the nomination of Russ
18 Buscaglia, who is one of the most prominent
19 attorneys in the Buffalo area, super prosecutor
20 as we called him, in both the district attorney
21 and the federal attorney's office as well as
22 head of the Medicaid Fraud Unit of the Attorney
23 General for some time.
24 There is no question that the
25 Court of Claims is getting a person who's
4200
1 probably as competent as any that has ascended
2 to that office to deal with some of the criminal
3 problems of the state. He comes from a
4 wonderful family, father, who I understand is
5 here and whose wife is also here. We wish him
6 the very best and I think he is one of the very
7 best, and I know he will make a super Court of
8 Claims judge.
9 ACTING PRESIDENT MARCELLINO: The
10 question is on the confirmation of Russell
11 Buscaglia as judge of the Erie County Court of
12 Claims. All in favor signify by saying aye.
13 (Response of "Aye.")
14 All opposed nay.
15 (There was no response. )
16 Russell Buscaglia is hereby
17 confirmed as judge of the Erie County Court of
18 Claims. Congratulations, Judge Buscaglia.
19 (Applause).
20 The judge is joined by his father
21 George Buscaglia, his sister Angela Marranca,
22 niece and nephews Lindsey, Paul and Russell,
23 friends John Long and Dawn Warsaw. We
24 congratulate you on a long and successful tenure
25 in your new position.
4201
1 Secretary will read.
2 THE SECRETARY: As judge of the
3 Westchester County Court, Mark C. Dillon, of
4 Yorktown.
5 ACTING PRESIDENT MARCELLINO:
6 Senator Lack.
7 SENATOR LACK: Thank you, Mr.
8 President.
9 I rise to move the nomination of
10 Mark C. Dillon, of Yorktown, who has been
11 nominated by the Governor to the position of
12 judge of the Westchester County Court. Judge
13 Dillon's credentials have been scrupulously
14 examined by the Judiciary Committee, have been
15 found to be completely in order. He appeared
16 before the committee this morning and was
17 unanimously moved from the committee to the
18 floor, and I would yield for purposes of a
19 second to Senator Leibell.
20 ACTING PRESIDENT MARCELLINO:
21 Chair recognizes Senator Leibell.
22 SENATOR LEIBELL: Thank you very
23 much, Mr. President.
24 As Senator Lack noted, we had the
25 opportunity this morning to, at the Judiciary
4202
1 Committee, to consider the qualifications of
2 Mark Dillon to be moved to the County Court
3 judge as -- County Court Judge of Westchester
4 County.
5 I'm very pleased to rise. I've
6 had the opportunity to know Judge Dillon on a
7 personal basis and professionally for a great
8 many years. He is extremely well qualified.
9 New York educated, he has had an extensive legal
10 career including -- commencing in the
11 Westchester County District Attorney's office
12 and currently serving with one of the most
13 prominent law firms in Westchester County.
14 He has also served as a town
15 judge for many years, now in the town of
16 Yorktown which is within my district, and in
17 that capacity has handled literally thousands of
18 cases, both civil and criminal, that have come
19 before him, besides which he has also served as
20 an instructor to other judges throughout our
21 area.
22 Mr. President, I'm immensely
23 pleased to have the opportunity today to stand
24 here and to move this nomination of Judge Mark
25 Dillon.
4203
1 Thank you.
2 ACTING PRESIDENT MARCELLINO:
3 Senator Spano.
4 SENATOR SPANO: Thank you, Mr.
5 President.
6 The -- it's my pleasure to join
7 with Senator Lack and Senator Leibell in
8 seconding the nomination of Judge Dillon. A
9 person who has served with distinction as a
10 village justice, and, of course, the Judiciary
11 Committee has taken a look at his legal
12 experience which is expected, but the real mark
13 of a person is to take a look at the activities
14 that he's been involved in in the community back
15 in Westchester County, as a member of the
16 National Eagle Scouts Association and his
17 involvement with the Boy Scouts of America and
18 the Council; the time that he has put in as a
19 director of the Great Hunger Foundation, the
20 putting time as a lector of the church and also
21 being the president of the Young JCs. Mark
22 Dillon has really demonstrated the type of
23 commitment and the type of person, human person,
24 that he is to deal with the issues facing the
25 County Court in Westchester County.
4204
1 He's continued to serve to the
2 present time as the co-chairman of the
3 Westchester County Council on Domestic Violence
4 and working on an issue that so many of us are
5 so concerned about. So it's just my pleasure to
6 second this nomination and to commend the
7 Governor for his selection of someone who really
8 deserves the unanimous support of all the
9 members of the Senate in his confirmation for
10 the County Court of Westchester County. He will
11 certainly make us proud.
12 Judge Dillon, congratulations.
13 ACTING PRESIDENT MARCELLINO: The
14 question is on the confirmation of Mark Dillon
15 as judge of the Westchester County Court. All in
16 favor signify by saying aye.
17 (Response of "Aye.")
18 Opposed nay.
19 (There was no response. )
20 Mark Dillon is hereby confirmed
21 as judge of the Westchester County Court. We
22 congratulate you, Judge Dillon, and we note that
23 you are here with your wife Michelle and your
24 three daughters Maura, Monica and Megan, and
25 before I suggest a round of applause for you, I
4205
1 say Maura? O.K.
2 Congratulations once again and I
3 hope your service is long and well respected.
4 (Applause)
5 Return to reports of select
6 committees.
7 Communications and reports from
8 state officers.
9 Motions and resolutions. The
10 Chair recognizes Senator Farley.
11 SENATOR FARLEY: Thank you, Mr.
12 President.
13 I have a motion on behalf of
14 Senator Hannon to restore an amended Senate
15 bill. I move to amend Senate Bill Number 4361
16 A, by striking out the amendments that were made
17 on May 27th and restoring it to its original
18 print number, which is 4361.
19 ACTING PRESIDENT MARCELLINO: So
20 ordered.
21 Senator Skelos, the resolution
22 calendar? Hello!
23 SENATOR SKELOS: Mr. President,
24 prior to taking up the Resolution Calendar, we
25 should take up the non-controversial calendar.
4206
1 ACTING PRESIDENT MARCELLINO: May
2 we take up the non-controversial calendar.
3 The Secretary will read.
4 THE SECRETARY: Calendar Number
5 143, by Senator Wright, Senate Print 1659-A, an
6 act to amend the Vehicle and Traffic Law, in
7 relation to creating the crime of aggravated
8 driving while intoxicated.
9 SENATOR PATERSON: Lay aside.
10 ACTING PRESIDENT MARCELLINO: Lay
11 the bill aside.
12 THE SECRETARY: Calendar Number
13 334, by member of the Assembly Vitaliano,
14 Assembly Print 1484, an act to amend the Civil
15 Service Law.
16 ACTING PRESIDENT MARCELLINO: Lay
17 this bill aside for the day.
18 THE SECRETARY: Calendar Number
19 434, by Senator Seward, Senate Print 3267, an
20 act to amend the Town Law, in relation to
21 non-resident volunteer firefighters.
22 ACTING PRESIDENT MARCELLINO:
23 Read the last section. Ah, I tried.
24 SENATOR PATERSON: Lay aside.
25 ACTING PRESIDENT MARCELLINO: All
4207
1 right, Senator. Lay it aside.
2 THE SECRETARY: Calendar Number
3 456, by Senator Marcellino, Senate Print 3679-A,
4 an act to amend the Environmental Conservation
5 Law, in relation to scup and black sea bass.
6 SENATOR GOLD: Lay it aside.
7 (Inaudible comment by a member.)
8 ACTING PRESIDENT MARCELLINO:
9 This is a lay aside from yesterday. (Inaudible)
10 This is Calendar Number 456 that was laid aside
11 yesterday for the day. It is on the calendar.
12 SENATOR SKELOS: The supplemental
13 active.
14 SENATOR GOLD: No, it isn't
15 there.
16 ACTING PRESIDENT MARCELLINO: The
17 Supplemental Active List Number 1, page number
18 1. (Inaudible) Bill is laid aside.
19 THE SECRETARY: Calendar Number
20 664, by Senator Nozzolio, Senate Print Number
21 4084-A, an act to amend the Civil Practice Law
22 and Rules.
23 SENATOR PATERSON: Lay it aside,
24 please.
25 ACTING PRESIDENT MARCELLINO: Lay
4208
1 it aside.
2 THE SECRETARY: Calendar Number
3 819, by Senator Lack, Senate Print 3479, an act
4 to amend the General Municipal Law.
5 ACTING PRESIDENT MARCELLINO:
6 Read the last section.
7 SENATOR PATERSON: Lay that
8 aside.
9 ACTING PRESIDENT MARCELLINO: Lay
10 it aside, please.
11 THE SECRETARY: Calendar Number
12 821, by Senator Alesi, Senate Print 3569, an act
13 to amend the Real Property Tax Law.
14 SENATOR PATERSON: Lay aside.
15 ACTING PRESIDENT MARCELLINO: Lay
16 it aside.
17 THE SECRETARY: Calendar Number
18 822, by Senator Libous, Senate Print 3721.
19 SENATOR GOLD: Lay aside.
20 ACTING PRESIDENT MARCELLINO: Lay
21 the bill aside, please.
22 THE SECRETARY: Calendar Number
23 829, by Senator Rath, Senate Print 4357, an act
24 to amend the Real Property Law and the
25 Agriculture and Markets Law.
4209
1 SENATOR PATERSON: Lay aside,
2 please.
3 ACTING PRESIDENT MARCELLINO: Lay
4 the bill aside.
5 THE SECRETARY: Calendar Number
6 846, by Senator Present, Senate Print 4112, an
7 act to enact the Private Activity Bond
8 Allocation Act of 1997.
9 SENATOR PATERSON: Lay aside.
10 ACTING PRESIDENT MARCELLINO: Lay
11 the bill aside.
12 THE SECRETARY: Calendar Number
13 848, by Senator Rath, Senate Print 4852, an act
14 to amend the State Administrative Procedure Act.
15 SENATOR GOLD: Lay aside.
16 ACTING PRESIDENT MARCELLINO: Lay
17 the bill aside.
18 THE SECRETARY: Calendar Number
19 862, by Senator Volker, Senate Print 4478, an
20 act to amend the Criminal Procedure Law.
21 SENATOR GOLD: Lay aside.
22 ACTING PRESIDENT MARCELLINO: Lay
23 the bill aside, please.
24 THE SECRETARY: Calendar Number
25 870, by Senator Volker, Senate Print 5180, an
4210
1 act to amend the Penal Law, in relation to
2 establishing the crime of absconding from a
3 residential treatment facility.
4 ACTING PRESIDENT MARCELLINO:
5 Read the last section.
6 THE SECRETARY: Section 3. This
7 act shall take effect immediately.
8 SENATOR PATERSON: Lay aside.
9 ACTING PRESIDENT MARCELLINO: Lay
10 the bill aside belatedly, please.
11 THE SECRETARY: Calendar Number
12 886, by Senator Goodman, Senate Print 3651, an
13 act to amend the Alcoholic Beverage Control
14 Law.
15 SENATOR PATERSON: Lay aside.
16 ACTING PRESIDENT MARCELLINO: Lay
17 the bill aside. This one, the one that was just
18 read? Bill will be laid aside for the day at
19 the request of the sponsor.
20 THE SECRETARY: Calendar Number
21 898, by Senator Goodman, Senate Print 4259-A, an
22 act to amend Chapter 674 of the Laws of 1993.
23 SENATOR PATERSON: Lay aside.
24 ACTING PRESIDENT MARCELLINO:
25 Bill will be laid aside for the day at the
4211
1 request of the sponsor.
2 THE SECRETARY: Calendar Number -
3 ACTING PRESIDENT MARCELLINO:
4 Ladies and gentlemen, if we please could have
5 some order in the house, we take the conversa
6 tions out of the room, please. It's very
7 difficult to hear the lay asides.
8 Secretary will continue to read.
9 THE SECRETARY: Calendar Number
10 901, by Senator Cook, Senate Print 4568, an act
11 to amend the Arts and Cultural Affairs Law.
12 SENATOR PATERSON: Lay aside.
13 ACTING PRESIDENT MARCELLINO: Lay
14 the bill aside, please.
15 THE SECRETARY: Calendar Number
16 910, by Senator Marchi, Senate Print 4015-A, an
17 act to amend the Navigation Law.
18 SENATOR PATERSON: Lay aside.
19 ACTING PRESIDENT MARCELLINO: Lay
20 the bill aside, please.
21 THE SECRETARY: Calendar Number
22 913, by Senator Nozzolio, Senate Print 1965, an
23 act to amend the Executive Law.
24 SENATOR STACHOWSKI: Lay aside.
25 ACTING PRESIDENT MARCELLINO: Lay
4212
1 the bill aside, please.
2 THE SECRETARY: Calendar Number
3 915, by Senator Nozzolio, Senate Print 2779, an
4 act to amend the Correction Law.
5 SENATOR STACHOWSKI: Lay aside.
6 ACTING PRESIDENT MARCELLINO: Lay
7 the bill aside, please.
8 THE SECRETARY: Calendar Number
9 920, by Senator Nozzolio, Senate Print 3429, an
10 act to amend the Correction Law.
11 SENATOR STACHOWSKI: Lay aside.
12 SENATOR GOLD: Lay aside.
13 ACTING PRESIDENT MARCELLINO: Lay
14 the bill aside.
15 THE SECRETARY: Calendar Number
16 931, by Senator Marcellino, Senate Print 5079-A,
17 an act to amend the Navigation Law.
18 SENATOR STACHOWSKI: Lay aside.
19 ACTING PRESIDENT MARCELLINO: I'm
20 sorry, I couldn't quite hear. Lay the bill
21 aside? You're sure about that? Lay it aside.
22 THE SECRETARY: Calendar Number
23 944, by Senator Skelos, Senate Print 5149, an
24 act to amend the Domestic Relations Law.
25 SENATOR STACHOWSKI: Lay aside.
4213
1 ACTING PRESIDENT MARCELLINO: Lay
2 bill aside, please.
3 THE SECRETARY: Calendar Number
4 945, by Senator Skelos, Senate Print 5150, an
5 act to amend the Domestic Relations Law.
6 SENATOR PATERSON: Lay aside.
7 ACTING PRESIDENT MARCELLINO: Lay
8 the bill aside, please.
9 THE SECRETARY: Calendar Number
10 964, by Senator Marchi, Senate Print 713, an act
11 to amend the Public Authorities Law.
12 SENATOR GOLD: Lay aside.
13 ACTING PRESIDENT MARCELLINO: Lay
14 the bill aside, please.
15 THE SECRETARY: Calendar Number
16 968, by Senator Levy, Senate Print 919, an act
17 to amend the Public Authorities Law.
18 SENATOR PATERSON: Lay aside.
19 ACTING PRESIDENT MARCELLINO: Lay
20 the bill aside, please.
21 THE SECRETARY: Calendar Number
22 980, by Senator Cook, Senate Print 2648, an act
23 to amend the Highway Law.
24 SENATOR PATERSON: Lay aside.
25 ACTING PRESIDENT MARCELLINO: Lay
4214
1 the bill aside.
2 THE SECRETARY: Calendar Number
3 984, by Senator Leibell, Senate Print 3551, an
4 act to amend the Vehicle and Traffic Law.
5 SENATOR PATERSON: Lay aside.
6 ACTING PRESIDENT MARCELLINO: Lay
7 the bill aside, please.
8 THE SECRETARY: Calendar Number
9 1030, by member of the Assembly Stringer,
10 Assembly Print 5635, an act to amend the
11 Election Law.
12 ACTING PRESIDENT MARCELLINO: Lay
13 the bill aside, please.
14 THE SECRETARY: Calendar Number
15 1031, by Senator Present, Senate Print 4511-A,
16 an act to amend the Election Law.
17 SENATOR STACHOWSKI: Lay aside.
18 ACTING PRESIDENT MARCELLINO: Lay
19 the bill aside, please.
20 THE SECRETARY: Calendar Number
21 1043, by Senator Marchi, Senate Print 3584, an
22 act to amend the Business Corporation Law.
23 ACTING PRESIDENT MARCELLINO: Lay
24 the bill aside, please.
25 THE SECRETARY: Calendar Number
4215
1 1050, by Senator Marchi, Senate Print 4085, an
2 act to repeal provi...
3 SENATOR PATERSON: Lay aside.
4 ACTING PRESIDENT MARCELLINO: Lay
5 the bill aside, please.
6 SENATOR SKELOS: Mr. President,
7 lay aside for the day.
8 ACTING PRESIDENT MARCELLINO: Lay
9 the bill aside -- 1050? -- for the day.
10 SENATOR GOLD: Mr. President.
11 ACTING PRESIDENT MARCELLINO:
12 Excuse me. Senator Gold.
13 SENATOR GOLD: Yeah. I looked in
14 the wrong place in my notes. If you want to
15 call 980, we can pass that. I laid that aside.
16 It's up to you.
17 ACTING PRESIDENT MARCELLINO: O.K.
18 We'll go back to that as soon as we finish the
19 last one on the calendar.
20 THE SECRETARY: Calendar Number
21 1055, by Senator LaValle, Senate Print 4431, an
22 act to amend the Education Law, in relation to
23 sharing of information.
24 SENATOR STACHOWSKI: Lay it
25 aside.
4216
1 ACTING PRESIDENT MARCELLINO: Lay
2 bill aside, please.
3 Senator Skelos, should we go back
4 to 980, at your pleasure?
5 SENATOR SKELOS: Mr. President,
6 would you -- Calendar Number 822, would you lay
7 that aside for the day at the request of the
8 sponsor.
9 ACTING PRESIDENT MARCELLINO:
10 Calendar Number 822 will be laid aside at the
11 request of the sponsor.
12 SENATOR SKELOS: And could you
13 take up Calendar Number 980.
14 ACTING PRESIDENT MARCELLINO:
15 Secretary will read Number 980.
16 THE SECRETARY: Calendar Number
17 980, by Senator Cook, Senate Print 2648, an act
18 to amend the Highway Law, in relation to use of
19 town-owned highway machinery, tools and
20 equipment.
21 ACTING PRESIDENT MARCELLINO:
22 Read the last section.
23 THE SECRETARY: Section 2. This
24 act shall take effect immediately.
25 ACTING PRESIDENT MARCELLINO:
4217
1 Call the roll.
2 (The Secretary called the roll. )
3 THE SECRETARY: Ayes 42.
4 ACTING PRESIDENT MARCELLINO: The
5 bill is passed.
6 Senator Skelos, that is -- that
7 is the reading of the non-controversial
8 calendar.
9 SENATOR SKELOS: Would you take up
10 the controversial calendar, please.
11 ACTING PRESIDENT MARCELLINO:
12 Starting with Calendar Number 143, the Secretary
13 will read the non-controversial calendar.
14 THE SECRETARY: Calendar Number
15 143, by Senator Wright, Senate Print 1659-A, an
16 act to amend the Vehicle and Traffic Law, in
17 relation to creating the crime of aggravated
18 driving while intoxicated.
19 SENATOR STACHOWSKI:
20 Explanation.
21 ACTING PRESIDENT MARCELLINO:
22 Senator Wright, an explanation has been asked by
23 Senator Stachowski.
24 SENATOR WRIGHT: Thank you, Mr.
25 President.
4218
1 The bill amends the Vehicle and
2 Traffic Law, adding a new section establishing
3 the crime of aggravated driving while
4 intoxicated, which is determined with a blood
5 alcohol content count of .20, establishes
6 penalties relating to that, as well as mandatory
7 revocation provisions.
8 ACTING PRESIDENT MARCELLINO:
9 Read the last section.
10 THE SECRETARY: Section 9. This
11 act shall take effect on the first day of
12 November.
13 ACTING PRESIDENT MARCELLINO:
14 Call the roll.
15 (The Secretary called the roll. )
16 THE SECRETARY: Ayes 53.
17 ACTING PRESIDENT MARCELLINO: The
18 bill is passed.
19 THE SECRETARY: Calendar Number
20 434, by Senator Seward, Senate Print 3267, an
21 act to amend the Town Law, in relation to
22 non-resident voluntary firefighters.
23 SENATOR PATERSON: Explanation,
24 please.
25 ACTING PRESIDENT MARCELLINO:
4219
1 Senator Seward, an explanation has been asked
2 for by Senator Paterson.
3 SENATOR SEWARD: Certainly, Mr.
4 President.
5 This legislation would amend the
6 Town Law. Currently the Town Law provides that
7 the percentage of non-resident membership of a
8 fire district, a fire company, may not exceed 45
9 percent, and the Legislature has over the years
10 statutorily granted exemptions from this
11 provision to a few fire districts across the
12 state to meet a particular local need.
13 Now, this bill would provide that
14 the Secretary of State would have the authority
15 to grant future exemptions and thus not require
16 special legislation every time that a fire
17 district finds itself not being able to meet the
18 servicing of the fire district and meet this 55
19 percent requirement that they be resident
20 volunteer firemen.
21 (Inaudible comment).
22 ACTING PRESIDENT MARCELLINO:
23 Senator Seward, will you yield to Senator
24 Dollinger?
25 SENATOR SEWARD: Certainly.
4220
1 ACTING PRESIDENT MARCELLINO:
2 Yes, he yields.
3 SENATOR DOLLINGER: Senator, we
4 in the course of the last two or three years
5 have taken a number of steps to encourage
6 membership in volunteer fire-fighting
7 companies. We've -- there have been proposals
8 on the floor of this chamber to create real
9 property tax incentives, to create improvement
10 in the point system to benefit firefighters.
11 My question is, do you have any
12 evidence that those measures have had any
13 success? In -- as I understand this bill, this
14 is to remedy situations where there aren't
15 enough people in the local community if they
16 have a fire-fighting force and they have to draw
17 from outside. Is there a tie between those two,
18 I mean do you see any benefit or any new
19 membership or increase in membership because of
20 those efforts?
21 SENATOR SEWARD: Well, we
22 continue to see a problem with the level of
23 membership in some of the volunteer organiza
24 tions, I think all volunteer organizations and
25 particularly fire departments and ambulance
4221
1 squads, but they -- by and large, I think
2 volunteer fire departments, while they may
3 have their problems in terms of retention and of
4 members and of gaining new ones, it's still a
5 very strong -- strong force there.
6 This legislation is not tied, in
7 my mind, directly to that type of recruitment
8 and retention problem as it is to meet the needs
9 of specific circumstances such as what we've
10 seen in the past where exemptions have been
11 granted, perhaps there would be a district where
12 there are large industrial or other types of
13 employers, a number of people that are working
14 three shifts and companies that have three
15 shifts. Yet there aren't a lot -- a great deal
16 of numbers in terms of residents, local
17 residents, of that fire district so we would
18 have to depend on those volunteers who may be
19 actually working in the community versus
20 actually living in the community.
21 That would be one circumstance
22 that this bill would be helpful in. There are
23 others, of course, with very small fire
24 districts that may not just -- may not have the
25 numbers, and so it's -- it's -- the
4222
1 circumstances are many and varied. This bill is
2 directed to give the Secretary of State the
3 authority to grant the exemption to meet the
4 wide variety of circumstances that may be out
5 there.
6 SENATOR DOLLINGER: Again through
7 you, Mr. President. I think your suggestion
8 about either living or working in a community is
9 a good one. You know whether this bill would be
10 needed if we simply changed the law to allow the
11 Secretary of State to recognize not only those
12 who live in the community that they would be
13 participating in, but those who work in it as
14 well? I know in suburban Monroe County there
15 are many people who work in the suburban
16 communities who don't actually live there who
17 would be closer to a fire in the district in
18 which they work, at least during daytime hours,
19 most of the daytime hours, rather than in the
20 community in which they sleep and maintain their
21 residence. Wouldn't that be another way to do
22 it, and what effect would that have?
23 SENATOR SEWARD: Well, Mr.
24 President, the Senator is suggesting a -- one
25 change that strikes me that, if we were to make
4223
1 that change would deal with that particular set
2 of circumstances. The difficulty is there are
3 other circumstances out there that your
4 suggested amendment would not cover; so my view
5 is that we should proceed with this legislation
6 to give the Secretary of State the authority to
7 grant the exemption depending on whatever the
8 local circumstances are that do not allow a
9 local fire department to come up with at least
10 55 percent of their members being actual
11 residents and 45 percent being non-residents.
12 SENATOR DOLLINGER: One final
13 question through you, Mr. President.
14 ACTING PRESIDENT MARCELLINO: Do
15 you continue to yield, Senator? He yields, sir.
16 SENATOR DOLLINGER: Has -- in
17 proposing this legislation has the issue of
18 consolidation of the volunteer fire companies
19 been discussed or been considered as a way to
20 overcome this problem as well, that in many
21 cases these fire companies may be small, they
22 may be difficult to find the recruits because of
23 the changing complexion of their community? Is
24 there any consideration underlying this bill or
25 in considering this bill, did you consider the
4224
1 possibility of trying to set up a system of
2 incentives for the consolidation of volunteer
3 fire districts?
4 SENATOR SEWARD: Mr. President,
5 we have not dealt with that issue in conjunction
6 with this legislation. There are provisions out
7 there that would allow for consolidation and
8 mergers, if you will. That remains to be a
9 local decision that could be made, and this bill
10 wouldn't alter that in any way.
11 We're simply trying to stream
12 line the process for fire departments to get the
13 exemption under the -- under the law.
14 SENATOR DOLLINGER: Thank you,
15 Mr. President.
16 SENATOR GOLD: Mr. President.
17 ACTING PRESIDENT MARCELLINO:
18 Senator Gold.
19 SENATOR GOLD: Will the gentleman
20 yield to a question, please?
21 ACTING PRESIDENT MARCELLINO:
22 Senator Seward, do you yield to Senator Gold?
23 SENATOR SEWARD: Certainly.
24 ACTING PRESIDENT MARCELLINO: He
25 yields, Senator.
4225
1 SENATOR GOLD: Yeah. Senator, I
2 am not embarrassed to tell you that I am not
3 anywhere near as familiar as you are with the
4 machinations and working of these volunteer fire
5 departments, and I don't believe, as some people
6 have suggested, that you're not very
7 sophisticated if you think the volunteer fire
8 departments are organized to put out fires,
9 which is one of the reasons -- but, Senator,
10 what is the basic philosophy by which the state
11 would care whether or not it's 55 percent or any
12 other number of residents that participate if
13 the idea of the volunteer fire department is to
14 be exactly that, on hand to help a community put
15 out fires? What's the philosophy?
16 SENATOR SEWARD: Well, Mr.
17 President, and Senator Gold, the philosophy
18 behind having these residency requirements at
19 all has its roots in the fact that, even though
20 the fire -- the members of the fire department
21 are strictly volunteers, the fire district does,
22 in fact, have the -- they do have taxing
23 authority for -- there are contract employees.
24 Local taxpayers pay for such things as equipment
25 purchases, and perhaps the cost of a fire hall
4226
1 and that kind of thing, and so the residency
2 requirements have its roots in the idea that
3 there are -- there is taxing authority here so
4 that the local -- the local residents/taxpayers
5 would also be the members of the fire
6 department, so that's the logic behind that.
7 SENATOR GOLD: Mr. President,
8 will the Senator yield to a question?
9 ACTING PRESIDENT MARCELLINO:
10 Senator, do you continue to yield?
11 SENATOR SEWARD: Certainly.
12 ACTING PRESIDENT MARCELLINO:
13 Senator yields.
14 SENATOR GOLD: Senator, you used
15 two different phrases, and I'd like to clarify
16 how you use them. One, you indicated that there
17 are contracts which is what my little
18 understanding is, that a volunteer fire
19 department would have some kind of contractual
20 arrangements whereby they would get funding from
21 an area, whatever.
22 The other phrase you used was
23 "taxing authority". Are you telling me that
24 the volunteer fire department has taxing
25 authority, can actually levy their own taxes in
4227
1 a community?
2 SENATOR SEWARD: Yes, if they're
3 a fire district. That -- that's one way that
4 they are organized. The other way is that the
5 -- when I used the term "contracts" I was
6 referring to the arrangement whereby the local
7 municipality actually has a contract to provide
8 the fire service with the local fire company, so
9 I use -- that's why I used depending on what the
10 local organization is.
11 SENATOR GOLD: Well -
12 SENATOR SEWARD: Whether it be a
13 district or a municipality contracting with a
14 fire department.
15 SENATOR GOLD: Will the Senator
16 yield to a question?
17 ACTING PRESIDENT MARCELLINO:
18 Senator, do you continue to yield?
19 SENATOR SEWARD: Certainly.
20 ACTING PRESIDENT MARCELLINO: I
21 believe he does, sir.
22 SENATOR GOLD: Thank you.
23 Senator, when you talk -- let's take the first
24 situation. You talk about them having a
25 contract. I assume from what you just told me
4228
1 and the education I'm getting, that you do not
2 need a fire district, that a municipality can
3 contract with the ABC Volunteer Fire Department
4 and they will pay them under the contract in a
5 certain way, and they will take care of a
6 designated area, I guess, pursuant to a
7 contract, is that right?
8 SENATOR SEWARD: Yes, that's one
9 of the ways of doing it.
10 SENATOR GOLD: All right. Now,
11 Senator, having said that, how do we get to the
12 district situation? Is there -- is there an
13 advantage or is there -- does it require a law
14 of this Legislature in order to create a
15 district and give that district taxing
16 authority?
17 SENATOR SEWARD: Mr. -- Mr.
18 President, there is a -- there are provisions in
19 the law if a locality wishes to actually set up
20 a fire district and then there are commissioners
21 that are elected. That's all prescribed by
22 state law.
23 SENATOR GOLD: All right.
24 SENATOR SEWARD: Every situation
25 does not require an act of this Legislature.
4229
1 SENATOR GOLD: All right. Will
2 the Senator yield to one more question, Mr.
3 President?
4 ACTING PRESIDENT MARCELLINO:
5 Senator, do you yield?
6 SENATOR SEWARD: Yes.
7 ACTING PRESIDENT MARCELLINO: I
8 believe he yields, sir.
9 SENATOR GOLD: Yeah, yeah.
10 Senator, if a locality determines that it wants
11 to establish a fire district, that I gather from
12 what you're telling me is by referendum or some
13 kind of a vote or authority and then you
14 indicated that there are commissioners for that
15 fire district. Are there residency
16 requirements, generally speaking, to be a
17 commissioner of the fire district?
18 SENATOR SEWARD: Yes.
19 ACTING PRESIDENT MARCELLINO:
20 Senator Seward.
21 SENATOR SEWARD: Yes, there are.
22 SENATOR GOLD: Well, if the
23 Senator would yield to a question, Mr.
24 President?
25 ACTING PRESIDENT MARCELLINO:
4230
1 Will the Senator yield for one more -- one more
2 question?
3 SENATOR SEWARD: Yes, certainly.
4 SENATOR GOLD: Senator, now that
5 we've got a view of this structure, I understand
6 less why there's the to-do over the residency.
7 If the taxes -- if you do have a contractual
8 situation, then the municipality has within its
9 control what its expenditures will be. If you
10 have the fire district set up and the
11 commissioners of the fire district are elected
12 and are resident, it seems to me that the fire
13 district is again protected because you've got
14 resident taxpayers who are the commissioners, so
15 I don't know what difference it would make if 60
16 percent of your actual volunteers didn't live in
17 the district. Your control of the cost
18 expenditures and taxing authority are still in
19 the hands of residents.
20 ACTING PRESIDENT MARCELLINO:
21 Senator Seward.
22 SENATOR SEWARD: Well, we could
23 be debating, I suppose, all day long in terms of
24 the need for any kind of residency requirement.
25 SENATOR GOLD: O.K.
4231
1 SENATOR SEWARD: We are, which
2 perhaps is why you're raising these questions.
3 SENATOR GOLD: No, no, no.
4 SENATOR SEWARD: I could debate
5 that question all day long. But seriously, the
6 -- this legislation is strictly dealing with
7 trying to streamline the process for those
8 districts that find themselves in circumstances
9 where they cannot meet the residency
10 requirements. The vast majority of fire
11 companies throughout the state are getting along
12 just fine. There are plenty of local people who
13 wish to be members of the fire company. They -
14 they're well in excess of the 55 percent
15 requirement under law.
16 We're simply, under this bill,
17 trying to deal with those very select few that
18 cannot meet that requirement and thus we're
19 streamlining the process for an exemption to be
20 granted. That's the very limited scope of this
21 bill.
22 Perhaps you'd like to have your
23 discussion, you know, looking at the issue in a
24 more wide-ranging way, but certainly that's your
25 right, perhaps to introduce legislation to deal
4232
1 with the general scope.
2 SENATOR GOLD: Thank you. Mr.
3 President, on the bill.
4 ACTING PRESIDENT MARCELLINO:
5 Senator Gold, on the bill.
6 SENATOR GOLD: Senator Seward,
7 first of all, thank you for the information.
8 It's obvious to me that you know this field and
9 maybe you should be running the entire volunteer
10 department for the state. You've got a real
11 grasp of it.
12 But, Senator, what I think is
13 amazing, is that when we find it convenient and
14 I don't mean this in any way to be a criticism
15 of you, Senator, I mean it, we amend laws
16 creating exemptions to situations without
17 stopping for a minute and taking a deep breath
18 and saying, why do we have that law and what is
19 the real practical application of those
20 exemptions; and I dare say that while we are
21 very critical of the state agencies and the
22 amount of paperwork we put people through, and
23 we have all kinds of legislation -- I know
24 Senator Stafford had a bill yesterday which we
25 debated dealing with the standardization of
4233
1 forms -- I'm willing to bet you, Senator Seward,
2 that if we passed 50 percent of our legislation
3 each year under the title of "repealer", we
4 could clear out an awful lot of our statutes,
5 cut the size of the books, cut the printing
6 bills and what people had to read because a lot
7 of it is just -- builds and builds on itself for
8 no reason.
9 Now, I am not involved with the
10 volunteer fire departments, although I will tell
11 you that I tremendously admire the citizens who
12 do that kind of volunteer work as I do admire
13 citizens who do volunteer ambulance work and
14 citizens who do anything to be helpful within
15 their own communities. These are great people
16 because while we talk about civics and civil
17 service, these people are doing it for nothing
18 because they live in a community. They have my
19 total admiration.
20 I don't know whether or not
21 somebody from Rockland County is going to
22 volunteer to be a member of the Ithaca Volunteer
23 Fire Department if they've got one, and Ithaca
24 probably has its own fire department, but just
25 as an example, it doesn't make any sense. I
4234
1 would assume that people have volunteers in fire
2 departments where they live or, as Senator
3 Dollinger pointed out, where they work, so that
4 it has some sensibility to it.
5 It also is quite clear to me from
6 your explanation, which I have no reason to
7 doubt at all, that the fire departments either
8 have a contract with a municipality so the
9 municipality has a grasp of what the costs are
10 going to be, or that you have a taxing fire
11 district where you elect the commissioners and
12 those are your neighbors and your residents, so
13 I don't know why we start out to have a law to
14 begin with that says that you must have, quote,
15 55 percent of the people who participate in a
16 volunteer fire department as being residents.
17 If that is an active healthy volunteer fire
18 department and it turns out that three people
19 moved and all of a sudden your percentages are
20 53 or 54 percent, why that should cause havoc in
21 a community, I don't know and I'm just
22 suggesting to you, Senator Seward, that I'm not
23 going to oppose the concept of giving
24 exemptions. I just think that you might be
25 doing us all a favor by putting some kind of
4235
1 repealer in to get rid of this.
2 Now, if there's a common sense
3 reason for it, I'm for the 55 percent or
4 whatever else, but I really haven't heard of any
5 common sense reason and maybe my distinguished
6 leader who's just risen wants to give me one or
7 ask me to yield.
8 ACTING PRESIDENT MARCELLINO:
9 Senator Paterson, why do you rise?
10 SENATOR PATERSON: Yes, Mr.
11 President. If Senator Gold would yield for a
12 question.
13 ACTING PRESIDENT MARCELLINO:
14 Senator Gold, do you yield to Senator Paterson?
15 SENATOR GOLD: Any time, sir.
16 ACTING PRESIDENT MARCELLINO: I'm
17 shocked.
18 Senator Paterson.
19 SENATOR PATERSON: Mr. President,
20 my question to Senator is that the 45 percent
21 limit on non-resident volunteer firefighters was
22 established, I thought, to ensure that the
23 majority of the fire company came from the -
24 from the -- from the tax district and since
25 you've been -- taken an interest in this
4236
1 legislation, my question is, what would ensure
2 with the passage of this legislation that that
3 objective would not be disregarded all over the
4 state?
5 SENATOR GOLD: Well, Senator, I
6 -- I can't answer for Senator Seward but the
7 way I read it, I don't see anything. The way I
8 read this bill, upon application, I assume every
9 single volunteer fire district in the state
10 could apply for and receive an exemption.
11 What I -- what I was -- the point
12 that I was making, Senator Paterson, and I see
13 you grasped it very well, which is not a
14 surprise to anyone in the chamber, is that there
15 ought to be a rationale for something or else we
16 ought to get rid of it. I mean we pass in this
17 house roughly 15-, 1600 bills a year. The
18 Assembly does the same. The cross-overs there's
19 something like 1,000, 1100 bills. Each house
20 passes 5-, 6-, 700 one-house bills; but we add
21 after you filter out vetos and some of the bills
22 that the leaders of both houses decide to not
23 even send to the Governor but use for fodder in
24 the fires, we wind up each year with probably 8
25 or 900 new chapters, 7-, 8-, 900 new chapters,
4237
1 and what I'm saying is that I don't know whether
2 there's a great public need to keep expanding
3 the size of our laws. Maybe one of the things
4 we could go -- I know Senator Rath who we all
5 admire greatly, has suggested changes in
6 administrative regulations to tighten things up.
7 Maybe we ought to have a committee that tightens
8 up all our laws instead of having these volumes
9 after volumes which do nothing more than change
10 a line or a word and creating exemptions to an
11 exemption because we have a main law and no one
12 wants to change the main law.
13 So, Senator Paterson, I agree
14 with you, I think under this law, every
15 volunteer fire department in the state could
16 wind up with an exemption, and I don't know why
17 we don't get rid of all this and just maybe we
18 ought to have a situation where a volunteer fire
19 department applies to the Secretary of State,
20 gives its percentages, gives its rationale and
21 let them approve it in each case, because I
22 think, Senator, that's exactly what's going to
23 happen anyway.
24 Last section.
25 ACTING PRESIDENT MEIER: Read the
4238
1 last section.
2 THE SECRETARY: Section 2. This
3 act shall take effect on the first day of
4 January.
5 ACTING PRESIDENT MEIER: Call the
6 roll.
7 (The Secretary called the roll. )
8 THE SECRETARY: Ayes 55.
9 ACTING PRESIDENT MEIER: The bill
10 is passed.
11 Secretary will read Calendar
12 Number 456.
13 THE SECRETARY: Calendar Number
14 456, by Senator Marcellino, Senate Print 3679-A,
15 an act to amend the Environmental Conservation
16 Law, in relation to scup and black sea bass.
17 ACTING PRESIDENT MEIER: Senator
18 Marcellino.
19 SENATOR MARCELLINO: Thank you,
20 Mr. President.
21 This bill extends the
22 Department's authority to adopt regulations for
23 the management of scup, or porgy, and black sea
24 bass, which would expire on June 1st, 1997.
25 This legislation will extend the Department's
4239
1 authority until December 31st, 1999.
2 ACTING PRESIDENT MEIER: Senator
3 Oppenheimer.
4 SENATOR OPPENHEIMER: Senator
5 yield for a few questions?
6 ACTING PRESIDENT MEIER: Will the
7 Senator yield for a question?
8 SENATOR MARCELLINO: It will be
9 my pleasure.
10 ACTING PRESIDENT MEIER: The
11 sponsor yields.
12 Senator Oppenheimer.
13 SENATOR OPPENHEIMER: Thank you.
14 I'm curious about a few things. I'm sure this
15 is an excellent bill but, as Senator Marcellino
16 knows, I've developed a new interest in fish in
17 our waters around the state.
18 Now, on April 8th, the Governor
19 signed a very similar bill which extended DEC's
20 authority for -- to manage scup and black sea
21 bass for two months. Now, why do we do a
22 two-month extender and are we now extending the
23 exact same bill for two and a half years, or
24 were there changes that you wanted to see in the
25 two-month bill that did or did not get into the
4240
1 two and a half-year bill?
2 SENATOR MARCELLINO: Mr.
3 President, through you, Senator Oppenheimer, our
4 colleagues in the other house had some thoughts
5 about modifying the legislation before the last
6 expiration date so we accommodated them and
7 agreed to a two-month extension so that we could
8 negotiate changes.
9 The negotiations, quite frankly,
10 never took place and the suggestions never came
11 forward. Consequently we have agreed upon and
12 the other house is entering a same act bill as
13 the one you see here for a two-year extender to
14 the authority in DEC to monitor these
15 fisheries.
16 SENATOR OPPENHEIMER: Through
17 you, Mr. President, were there things that you
18 wanted to see changed in the bill from the
19 two-month bill to the two and a half-year bill,
20 or is this the bill that you wanted from the
21 beginning?
22 SENATOR MARCELLINO: Senator,
23 this is the bill that we think is a good idea.
24 We think a two-year period of time is sufficient
25 for us to go back and relook at this issue
4241
1 without having to do this too often. We think
2 this is the appropriate legislation and the
3 appropriate manner to handle this particular
4 issue.
5 SENATOR OPPENHEIMER: Through
6 you, Mr. President, I wonder if you could
7 explain why the scup and the black sea bass
8 mortality rates are so very high.
9 SENATOR MARCELLINO: It's a
10 combination of factors, Senator, the factor of
11 over-fishing and over-taking of the species. We
12 have become extremely capable at taking these
13 organisms at a much faster rate than they're
14 capable of replenishing. In some cases, in the
15 case of the black sea bass they've become the
16 fish of choice at many of the sushi bars and are
17 being taken in sizes that precede their ability
18 to spawn, so we need to protect and preserve
19 this particular species of fish and, in fact,
20 both species of fish.
21 In some areas -- I remember when
22 I was a young boy being able to fish in the
23 Rockaways off the jetty and you could catch
24 porgy and bass without too much problem. Today
25 you cannot. The -- it's -- they are, for the
4242
1 most part, fished out of existence in many
2 areas. We are attempting to preserve these two
3 fisheries by managing carefully the species.
4 We're talking about a $1.7
5 million industry to the state of New York. That
6 is the amount of landings and the amount of
7 sales of these particular species that have
8 taken place, so this is not an insignificant
9 part of our economy.
10 SENATOR OPPENHEIMER: Senator, if
11 you will yield.
12 ACTING PRESIDENT MEIER: Senator
13 Oppenheimer, are you asking Senator Marcellino
14 to continue to yield?
15 SENATOR OPPENHEIMER: Yes.
16 ACTING PRESIDENT MEIER: Will the
17 Senator yield?
18 SENATOR MARCELLINO: My pleasure.
19 ACTING PRESIDENT MEIER: Senator
20 yields.
21 SENATOR OPPENHEIMER: I have just
22 a couple of questions from what you just said.
23 Number one, do we not have some of kind of limit
24 on the inches that the fish may be taken at and,
25 secondly, is this -- where is this basically
4243
1 fished; where -- where -
2 SENATOR MARCELLINO: These are
3 two coastal water fishes, fisheries. They're
4 not deep sea as such, but they are coastal in
5 their appearance and in their locality, and I
6 believe there are size restrictions on both
7 species that are taken. It's very difficult to
8 monitor, especially if they're taken in a
9 commercial -- in a commercial setting, extremely
10 difficult to monitor size of these creatures,
11 but we feel, with the time we have and the DEC's
12 watching and the ability to put people on boats
13 that go out now, we are capable of preserving
14 the species and we have seen some comeback on
15 the part of these organisms with these
16 regulations in place.
17 Without this legislation, we're
18 afraid the EPA will simply shut down the
19 fisheries. If they don't feel that the state is
20 monitoring and carefully watching this
21 particular activity, then they will take over
22 and their method of operation is simply to shut
23 it down. We don't feel it's necessary, and we
24 don't -- we certainly wouldn't want them to come
25 in and shut it down for reasons we mentioned
4244
1 before. Both recreational and commercial
2 fishermen do partake of this sport and the
3 economy is necessary for our state, so we feel
4 we want to monitor it ourselves.
5 SENATOR OPPENHEIMER: If you
6 would yield for another question.
7 ACTING PRESIDENT MEIER: Senator
8 Marcellino, do you continue to yield?
9 SENATOR MARCELLINO: Yes, I do,
10 sir.
11 ACTING PRESIDENT MEIER: Senator
12 yields.
13 SENATOR OPPENHEIMER: Could you
14 tell me if the taking requirements that are set
15 by the Atlantic States Marine Fishery
16 Commission, are they providing sufficient
17 protection for our fishery resources and if not,
18 why don't we permit the DEC to establish more
19 stringent regulations than are in place?
20 SENATOR MARCELLINO: At this
21 point in time, Senator, from our people at the
22 DEC, they feel the issue is being properly
23 handled with the regulation and controls that we
24 have on now. The purpose, as I said before, of
25 this legislation is to continue that
4245
1 capability. If we felt that there was the need
2 to move in and impose stricter requirements, we
3 would do so without hesitation.
4 SENATOR OPPENHEIMER: Then you
5 would say that we would give the DEC permanent
6 authority to manage these fish? Why wouldn't the
7 DEC take permanent authority to manage the fish
8 as long as it's consistent with the Atlantic
9 States Marine Fishery Commission? Why couldn't
10 we be more stringent in New York State?
11 SENATOR MARCELLINO: Well, we
12 could always be more stringent if we chose.
13 There just doesn't seem to be a need. The
14 existing rules and regulations and requirements
15 are meeting the need. To be more stringent
16 would give us literally nothing at this point in
17 time.
18 SENATOR OPPENHEIMER: Now, on a
19 peripheral question if you'd -
20 ACTING PRESIDENT MEIER: Senator
21 Oppenheimer, are you asking that the Senator
22 yield to a question?
23 ACTING PRESIDENT MEIER: Senator
24 Marcellino, do you yield?
25 SENATOR MARCELLINO: Yes, I do,
4246
1 sir.
2 ACTING PRESIDENT MEIER: Senator
3 yields.
4 SENATOR OPPENHEIMER: I'd like to
5 know if there are conflicts between the
6 recreational and the commercial harvesters of
7 the scup and the black sea bass. This certainly
8 was an issue that came up a couple of weeks ago
9 with the mossbunker or menhaden fish industry
10 where the recreational and the commercial
11 fishermen were at odds with one another.
12 Is that true in the scup and the
13 black sea bass?
14 SENATOR MARCELLINO: Yes, I
15 think, Senator, Mr. President, through you, you
16 will see that there is always that conflict and
17 there is always that natural friction that comes
18 up between two different entities, if you will,
19 where they come together at a particular point.
20 Commercial fisheries people feel they never get
21 enough and the sportsmen always want to get more
22 and also feel the commercial guys are taking too
23 much away from them, so there is this natural
24 give and take between them.
25 What we have done here is try to
4247
1 walk a middle course in giving both sides the
2 ability to do what they have to do and to be
3 capable of enjoying the sport and enjoying the
4 commercial success of their operations, so that
5 they can provide food for restaurants and people
6 at various locations.
7 Right now these two needs are
8 being met, and there doesn't seem to be any
9 outside need to go out and favor one or the
10 other. We feel we are accomplishing the task.
11 SENATOR OPPENHEIMER: And my last
12 question, if you will yield.
13 ACTING PRESIDENT MEIER: Senator
14 Marcellino, will you yield?
15 SENATOR MARCELLINO: Sure.
16 ACTING PRESIDENT MEIER: Senator
17 yields.
18 SENATOR OPPENHEIMER: Would you
19 say that the main markets, the commercial
20 fishermen that are catching the porgies, is that
21 essentially for restaurant usage; it's not for
22 reduction like with the menhaden, is it?
23 SENATOR MARCELLINO: No, porgy is
24 not a food fish like menhaden would be in the
25 use. It's caught for the oil product it
4248
1 produces for cat food or dog food, things like
2 that. The porgy may have some aspect of that to
3 it, but for the majority of it, it is a food
4 fish for human consumption.
5 SENATOR OPPENHEIMER: For
6 restaurants.
7 SENATOR MARCELLINO: Or personal
8 consumption, yeah.
9 SENATOR OPPENHEIMER: Or other
10 commercial usage. Thank you very much. That was
11 very informative.
12 SENATOR MARCELLINO: Thank you,
13 Senator.
14 ACTING PRESIDENT MEIER: Read the
15 last section.
16 THE SECRETARY: Section 2. This
17 act shall take effect immediately.
18 ACTING PRESIDENT MEIER: Call the
19 roll.
20 (The Secretary called the roll. )
21 THE SECRETARY: Ayes 56.
22 ACTING PRESIDENT MEIER: The bill
23 is passed.
24 Secretary will read Calendar
25 Number 664.
4249
1 THE SECRETARY: Calendar Number
2 664, by Senator Nozzolio, Senate Print 4084-A,
3 an act to amend the Civil Practice Law and
4 Rules, in relation to establishing a complete
5 bar to recovery by persons injured.
6 SENATOR PATERSON: Explanation.
7 ACTING PRESIDENT MEIER: Senator
8 Nozzolio, an explanation has been requested by
9 Senator Paterson.
10 SENATOR NOZZOLIO: Thank you, Mr.
11 President.
12 Senator Paterson, my colleagues,
13 the Crime Victims Protection Act is the measure
14 before us. It's an important legislative
15 initiative. It says, in effect, that if you use
16 legitimate self-defense in defense of yourself
17 or your family against a criminal intruder
18 during the commission of that crime, that you
19 should not be placed in any type of liability.
20 Rightly so, the assumption of the
21 risk of injury in the course of criminal conduct
22 through this action before us places it right
23 where it belongs, with the criminal.
24 ACTING PRESIDENT MEIER: Senator
25 Paterson.
4250
1 SENATOR PATERSON: Thank you, Mr.
2 President.
3 If Senator Nozzolio would yield
4 for a question.
5 ACTING PRESIDENT MEIER: Senator
6 yield?
7 SENATOR NOZZOLIO: Yes, Mr.
8 President.
9 ACTING PRESIDENT MEIER: Senator
10 Nozzolio yields.
11 SENATOR PATERSON: Thank you, Mr.
12 President.
13 Senator Nozzolio, the purpose of
14 this legislation is certainly sustained by a
15 number of situations that have occurred that
16 we've read about in the newspapers and even in
17 legal cases where victims of crimes were
18 actually sued by the perpetrator for some act
19 that was taken against them and the purpose of
20 your legislation in order to protect victims is
21 certainly admirable.
22 However, an outright bar to
23 recovery could be seen as somewhat excessive and
24 that's the nature of my question. Do you want
25 to establish the circumstance where the trier of
4251
1 fact, meaning the court, would be unable to make
2 any determination of contributing information
3 and, therefore, create an insulated situation
4 where the law is overarching the entire
5 circumstance and the trier of fact has
6 absolutely no jurisdiction?
7 SENATOR NOZZOLIO: Mr. President,
8 to respond to the Senator's question, that the
9 measure before us places the assumption of risk
10 and liability where it belongs, not with the
11 victim of the crime but with the perpetrator of
12 the crime. I submit, Senator Paterson, that
13 your question certainly is one that is -
14 provokes, I believe, response, an illustration.
15 The illustration is one that
16 could take place not too far from here where a
17 business owner was found liable when a robber
18 comes into his business through a late night
19 break-in, where the business owner pursued the
20 perpetrator in flight. The robber fell through
21 some rotted stairs of the business establishment
22 and broke several bones. He sued then, the
23 business owner, and what was seen was the
24 liability of the insurer who had the policy that
25 covered the business owner, in effect that
4252
1 liability may have not been rested in a court of
2 equity. Maybe a court would have seen the
3 circumstances and said that an owner of a
4 building, when you have a robber perpetrating
5 into that building, the commission of a crime
6 and happens to get injured during the commission
7 of a crime, you shouldn't hold the business
8 owner or the property owner liable and maybe we
9 would have a court deciding that, but as you
10 know, Senator, just to defend a case like this,
11 it takes a lot of money and the insurance
12 companies have to go through all kinds of
13 discovery, depositions, and that sort of thing.
14 And so what we're saying is let's
15 make it clear that anyone who comes into a
16 building for the commission of a crime or enters
17 onto an individual's property with the intent of
18 committing a crime that that person, if injured,
19 will certainly bear the risk and that's what
20 we're trying to do here, Senator, make it very
21 clear from the threshold that this is the policy
22 of the state of New York and that we are to
23 protect law-abiding property owners and that if
24 the criminals get injured during the commission
25 of a crime, that's their tough luck and so be
4253
1 it.
2 Thank you, Mr. President.
3 SENATOR PATERSON: Mr. President,
4 when I listen to Senator Nozzolio's explanation
5 I'm frustrated to the point that he must have
6 been which caused him to raise those types of
7 situations are why we might want to address
8 through legislation some of these types of
9 issues, and I see that one of the aspects of the
10 legislation, Mr. President, that Senator
11 Nozzolio has offered us is to allow for the
12 defendant to recover legal costs in these
13 particular cases assuming that the plaintiff is
14 unsuccessful. So you know, that is definitely a
15 step in the right direction.
16 However, let's take this example,
17 Senator Nozzolio. Let's say we have a car that
18 is being stolen by a 12-year-old, and at a
19 certain point the adult who is the owner of the
20 car sees the 12-year-old and rather than
21 admonishing the youth or taking some other
22 action to prevent the youth from stealing the
23 car, the adult shoots and kills the 12-year
24 old. At this point it would seem to me that
25 under your legislation we have really prescribed
4254
1 a situation where there's a bar to any recovery
2 on the part of the family of the deceased
3 because of this legislation we're passing.
4 So if I could get some feedback
5 from you on how you would view this scenario in
6 the view of your legislation, I could better
7 determine whether or not this legislation really
8 wouldn't create as many problems as it would
9 solve.
10 SENATOR NOZZOLIO: Senator, to
11 answer your question, there are other laws as
12 you well know. We make a change in law here,
13 there is other body of laws which also governs.
14 We're not eliminating that other body of law;
15 we're not eliminating the issues of direct force
16 and meeting force with force, the degree of
17 force, the degree of, certainly as you describe
18 it in your hypothetical, I would think that a
19 court would look at the force used under the
20 hypothetical you described, Senator, and say
21 that was certainly not appropriate.
22 However, to change your metaphor
23 a little bit, if someone -
24 SENATOR PATERSON: I'm sorry. I
25 just didn't hear the last part of what Senator
4255
1 Nozzolio said.
2 SENATOR NOZZOLIO: Senator, to
3 change your metaphor just a bit, let's say
4 someone was stealing a car and during the
5 commission of that crime started to use deadly
6 force, turning the car on its top and using the
7 car to attack its owner in flight, to flee the
8 circumstances of the crime and certainly then
9 you can see where use of deadly force would be
10 justified.
11 I think you have to understand
12 that this law establishes a threshold of
13 liability, a threshold of protection, and it is
14 not meant to circumvent or alter directly other
15 types of mitigating statutory provisions which
16 deal with deadly force and the use of deadly
17 force.
18 SENATOR PATERSON: Mr. President,
19 if Senator would continue to yield.
20 ACTING PRESIDENT MEIER: Senator,
21 do you yield?
22 SENATOR NOZZOLIO: Yes.
23 ACTING PRESIDENT MEIER: The
24 Senator continues to yield. Senator Paterson.
25 SENATOR PATERSON: Senator
4256
1 Nozzolio, the addendum that you made to the
2 example that I gave you would certainly create a
3 situation that we would understand why deadly
4 force might be used against the operator of a
5 vehicle who is turning the vehicle into a weapon
6 which is one of the reasons that I didn't make
7 that part of the example that I suggested which
8 is that I was talking about a situation which is
9 not speculative or remote to what we're talking
10 about, something that has happened, and it
11 hasn't happened because the owner of a car is
12 necessarily trying to kill a young person who is
13 stealing the car, but you have a crime in
14 progress, you have panic in a particular
15 situation and perhaps you have poor judgment
16 exercised in a situation, but what may allow for
17 the explanations under the criminal law would
18 have a different standard under the civil law.
19 There are even different standards by which we
20 assess responsibility under the civil law, and I
21 do not know the body of law that you are
22 referring to that would address a situation
23 where an owner of a vehicle would shoot a young
24 person that was attempting to steal the vehicle
25 and at that point, according to you, there are
4257
1 other bodies of law where there could be sought
2 some kind of justice, and what I'm just trying
3 to figure out is, which body of law you're
4 referring to would the family of the victim go
5 to, to cure this kind of a problem?
6 SENATOR NOZZOLIO: Certainly,
7 Senator, the courts would have to weigh whether
8 deadly force was -- was applicable, appropriate
9 in that sort of situation. What this -- what
10 this law does, if a 12-year-old steals the car
11 and then hits a street light and injures himself
12 that you as the owner of that car is not going
13 to be liable.
14 Now, that's what this law is
15 trying to focus on and to address. Under the
16 law we have today liability, for instance, for
17 that business owner who had his robber fall
18 through the steps of his business, sues -- then
19 the robber sues the business owner for having
20 faulty steps.
21 That's what this type of
22 legislation is dealing with, Senator. That's the
23 right we're trying to wrong and, frankly, I
24 think that is something that has been remiss in
25 the past and we need to address it.
4258
1 SENATOR PATERSON: Thank you very
2 much, Senator Nozzolio, for your response and
3 what it -- what I'm inferring from what you've
4 said is that perhaps the legislation, as well
5 intended as it may be, is written a little too
6 broadly because when you take a look at this
7 kind of situation, let's say, for example, the
8 recovery against Rodney -- the recovery that
9 Rodney King sought, if you take that scenario,
10 the police officers are chasing him or if you
11 took a situation where there was a excessive
12 choke hold as we had in Bronx County in a case
13 that was just decided about six month ago.
14 Would you care to comment on how those two
15 situations where excessive force was used by
16 agents of law enforcement would factor into the
17 civil recovery in those particular cases?
18 ACTING PRESIDENT MEIER: Senator
19 yield to that question? Senator Nozzolio.
20 SENATOR NOZZOLIO: Senator, under
21 the -- the normal procedures of the house, you
22 ask to yield prior to asking the question, and I
23 must say, Senator, I was -- I did not hear the
24 completeness of your question. I would be glad
25 to yield to Senator Paterson, but -
4259
1 ACTING PRESIDENT MEIER: Senator
2 Paterson, the Chair was under the impression
3 that you were proceeding until you wished to
4 pose a question. We didn't hear it.
5 SENATOR PATERSON: My apology,
6 Mr. President. Senator Nozzolio, what I was
7 saying was that perhaps the legislation is
8 written too broadly, and what I wanted to ask
9 you is, if you took the example of excessive
10 chokeholds used by a law enforcement agent, such
11 as a police officer that used the chokehold in a
12 case in Bronx County that occurred within the
13 last six months, or if you took the fact pattern
14 as it unfolded in the Rodney King case in 1991,
15 do you think that either of those two defendants
16 under the civil law would have any recovery
17 against the officers in a scenario that would be
18 similar to those?
19 SENATOR NOZZOLIO: Mr. President,
20 based on the facts as I understand them, in a
21 case like Rodney King, as referenced by Senator
22 Paterson, I certainly don't believe that this
23 law is intended or would have the effect of
24 changing any type of civil recovery that would
25 be appropriate in a case such as -- as one
4260
1 described in the facts relative to Rodney King.
2 Again, Senator, I understand your
3 concerns, and there are times when force used is
4 inappropriate force. Certainly this bill does
5 not eliminate those types of recovery where they
6 are appropriate. What we are trying to do is
7 simply insulate crime victims from further
8 victimization through the legal process, adding
9 insult to injury when a victim is sued by the
10 perpetrator of the crime for injuries that
11 occurred through the perpetrator's fault, so
12 that's the type of address that this nature gets
13 to. Certainly the civil and criminal wrongs
14 associated with the Rodney King beating, that
15 certainly is not what we're talking about here,
16 and I'm glad that we've at least had the
17 opportunity in our legislative dialogue to
18 create history on this measure because certainly
19 it's not the intention of this drafter nor I
20 think this body to restrict to that extent and
21 certainly not supersede other recoveries that
22 may be available.
23 ACTING PRESIDENT MEIER: Senator
24 Paterson.
25 SENATOR PATERSON: Thank you, Mr.
4261
1 President. If Senator Nozzolio would continue
2 to yield.
3 ACTING PRESIDENT MEIER: Senator
4 continue to yield?
5 SENATOR NOZZOLIO: Yes, Mr.
6 President.
7 ACTING PRESIDENT MEIER: Senator
8 continues to yield.
9 SENATOR PATERSON: Senator, what
10 I appreciated about your original explanation
11 was that your interest is that you would like to
12 clarify this particular situation, and I think
13 perhaps where you and I are in a little bit of
14 disagreement is how much you can actually
15 clarify the delineation in different fact
16 patterns.
17 Now, based on your explanation of
18 the legislation, it's fine with me, because I
19 think that you have articulated very well what
20 you're trying to get at. You want to stop these
21 situations where victims who on top of
22 everything else -- I'm sorry, where perpetrators
23 who on top of every other violation of public
24 policy that they've committed, crime that they
25 were in the process of committing and outright
4262
1 often unethical and immoral behavior have the
2 audacity to come back later on and actually sue
3 the poor individual who was the object of often
4 their violence or certainly their unlawful
5 activities, and are going to sue them because
6 they had a misfortune such as falling down a bad
7 flight of stairs while they were robbing a
8 building, and it really is absurd to some degree
9 to actually believe that there are personalities
10 that feel comfortable coming into court with
11 these types of allegations, and the fact that
12 you would like to cure us as a society of not
13 having to read these legal briefs and even have
14 to see these rather disreputable people anywhere
15 near a courthouse is certainly something that I
16 am in agreement with.
17 But what I'm saying is that as we
18 went through a few fact patterns in the Rodney
19 King case, and I believe that perhaps as Senator
20 Waldon might illuminate us a little more on that
21 or perhaps the case of an excessive chokehold as
22 was the case in the Baez case that occurred in
23 the Bronx or the scenario that I gave about a
24 young victim, we recognize why these laws were
25 established in the first place, such as where
4263
1 the owner of property sets up a zip gun and
2 anyone that comes through the door gets shot by
3 it, and so a firefighter who is coming in the
4 building to put out a fire got hit with a
5 discharge from a zip gun once, and it created
6 quite a lawsuit. So what I'm saying is that the
7 realities of life as they impinge on our concept
8 of justice make it very difficult for appellate
9 courts to uphold the statute when you have such
10 over-broad language as I find in your
11 legislation, even though at the end of the day
12 you and I are in total agreement about what
13 should probably happen to people who engage in
14 this kind of behavior.
15 What I'm suggesting to you -
16 ACTING PRESIDENT MEIER: Senator
17 Paterson, you asked for the Senator to yield for
18 the purpose of asking a question. Is there a
19 question in there?
20 SENATOR PATERSON: I haven't
21 gotten to the question yet, but since the last
22 time Senator Nozzolio hadn't heard the question
23 I just wanted to alert him to the fact that at
24 the end of this discourse, there would be a
25 question.
4264
1 SENATOR NOZZOLIO: Appreciate
2 your definition.
3 SENATOR PATERSON: The question
4 is, would you consider recommitting this
5 legislation to the Codes Committee so that the
6 type of language that would make it clear that
7 there are cases where the court -- and the fact
8 that you said the court would have to consider
9 these exceptions is exactly the reason that I
10 tend to think the legislation isn't particularly
11 right as it's written because you are granting
12 at least in conversation that the court should
13 have some jurisdiction, but I don't see it
14 clearly delineated in your legislation, so my
15 question is either can you explain to me how it
16 does -- in other words, read to me the section
17 of the bill that shows how the court would have
18 jurisdiction or would you consider perhaps
19 rewriting the section so the sum of what you've
20 offered us in conversation could be codified as
21 law?
22 SENATOR NOZZOLIO: I wouldn't
23 consider amending this measure. We have changed
24 the bill, Senator. Your counsel may not have
25 read the amended version, but the -- this deals
4265
1 with only the victims of the crime. They're the
2 only ones withstanding that type of insulation
3 which I wouldn't apply to Rodney King in any
4 case. That is a beating of police officers, as
5 I understand it. The peace officers were not
6 the victims of a crime perpetrated by Rodney
7 King. In effect, only victims of crime would be
8 allowed this type of information by the facts
9 that are before us.
10 So Senator, as much as I
11 commiserated with you on your hypothetical, I
12 should also indicate very clearly that this
13 section of law would not apply at all if that
14 type -- and God forbid that it does happen -
15 but if that circumstance ever occurred in New
16 York, but the perpetrators of that crime,
17 certainly against Rodney King, the police
18 officers, would not have been subject to the
19 protections of this legislation.
20 SENATOR PATERSON: Mr. President,
21 just as a point of inquiry, the Rodney King
22 case, the police officers in the -
23 ACTING PRESIDENT MEIER: Senator
24 Paterson, are you asking the sponsor to yield
25 for a question?
4266
1 SENATOR PATERSON: Yes, Mr.
2 President, I'm asking the sponsor to yield.
3 O.K.?
4 ACTING PRESIDENT MEIER: Just a
5 moment, Senator Paterson. Senator Nozzolio,
6 Senator Paterson has asked if you would continue
7 to yield.
8 SENATOR NOZZOLIO: Yes, Mr.
9 President.
10 ACTING PRESIDENT MEIER: Sponsor
11 yields to Senator Paterson.
12 SENATOR PATERSON: Mr. President,
13 I would like to advise you and Senator Nozzolio
14 that I would like to answer something that
15 Senator Nozzolio said, prior to asking my
16 question.
17 ACTING PRESIDENT MEIER: Senator
18 Paterson, the rules of the Senate provide, I
19 believe I'm correct, that a member wishing to
20 speak, that member has the floor so you either
21 yield to the question or you ask him to yield
22 for a question, or you take the opportunity to
23 speak on the bill.
24 SENATOR PATERSON: Well, Mr.
25 President, I'm going to ask him a question.
4267
1 ACTING PRESIDENT MEIER: Well,
2 then the proper procedure, Senator Paterson, is
3 to ask whether the member holding the floor will
4 yield to a question.
5 SENATOR PATERSON: And he
6 yielded, Mr. President. So my question -
7 ACTING PRESIDENT MEIER: Well,
8 Senator Paterson, not so much that, but you
9 indicated you wanted to make a point, so the
10 member, Senator Nozzolio, now yields to your
11 question.
12 SENATOR PATERSON: Thank you, Mr.
13 President.
14 Senator Nozzolio, in the Rodney
15 King case, the police officers were not
16 convicted of a criminal offense regarding the
17 assault on Rodney King. When Rodney King was
18 arrested he was charged with resisting arrest,
19 assaulting police officers, which had they not
20 been able to view a videotape or even if you
21 did, this was an actual charge that was made
22 against Rodney King along with many others, and
23 so, therefore, why would it make the police
24 officers victims of a crime, and I can't see it
25 any other way than that and, as a matter of
4268
1 fact, from the court that had jurisdiction there
2 in Simi Valley, that still to this day would be
3 the ruling in that particular case. The only
4 alternative that Rodney King, as a perceived
5 victim, had was -- would have been a civil suit
6 against the police officers.
7 Now, they did have eventually a
8 federal civil rights action that was taken, but
9 if you just disregard that, the acts -- the
10 situation is that under your legislation, I
11 don't feel Rodney King can bring a lawsuit in a
12 civil court, and my question is, can you explain
13 to us where it says in your bill which we did
14 indeed change it, perhaps that's all I need to
15 know, so that we can go ahead and release this
16 to members for a vote, where it is in your bill
17 that enables Rodney King to sue in that
18 particular -- in a case such as that?
19 SENATOR NOZZOLIO: Mr. President,
20 this measure is termed -- I am not going to
21 respond, Senator, to the facts in the Rodney
22 King case because I'm not totally conversant in
23 all of those facts. I certainly read about some
24 of them, yes, heard about them in the
25 newspapers. The whole incident is reprehensible
4269
1 to me, as I understand it, but I do not
2 understand all the facts. So, Senator, I'm not
3 going to subject this measure to the four
4 corners of that hypothetical because there may
5 be some facts in that hypothetical that I just
6 don't know.
7 I think, Senator, appropriately
8 this measure bars recovery by a person who is
9 injured while he or she themselves is committing
10 a crime. One committing a crime should not be
11 allowed to sue the victim of that crime because
12 the perpetrator of that crime is injured during
13 its commission. That's the four corners of this
14 action that's before us today, and either
15 hypothetically, Senator, I stood before you for
16 at least 25 minutes and tried to deal with your
17 questions.
18 I think the sum and substance of
19 this legislation is to protect those who are
20 victimized by crime from being further
21 victimized by the insult of the civil lawsuit on
22 what, in fact, is no fault of their own for that
23 injury to have taken place.
24 So, Senator, that's how I answer
25 your question. I cannot get into the
4270
1 hypothetical that I do not know all the entire
2 facts of, and it does a disservice to the bill
3 before us, and I respectfully wish you to accept
4 that answer as a response to your question.
5 Thank you, Mr. President.
6 ACTING PRESIDENT MEIER: Senator.
7 SENATOR PATERSON: Thank you, Mr.
8 President. I accept that answer as defensive.
9 Will the Senator yield to another question?
10 ACTING PRESIDENT MEIER: Does the
11 sponsor continue to yield?
12 SENATOR NOZZOLIO: Yes, sir.
13 ACTING PRESIDENT MEIER: Senator
14 continues to yield.
15 SENATOR PATERSON: Senator
16 Nozzolio, it's certainly not incumbent upon you
17 to know all the facts of any particular case. I
18 just used as an example a hypothetical of an
19 actual case, and so all I'm really asking is
20 what happens in the particular situation under
21 your bill -- we won't use any examples -- just
22 the general question: What happens where there
23 is certainly a feeling on the part of the victim
24 of the attack that there was a gross negligence
25 on the part of the perpetrator who, in this
4271
1 case, was a victim of a crime, but in defending
2 themselves went too far?
3 For instance, someone who was
4 conversant in some sort of martial arts, who was
5 being attacked who could have avoided the
6 situation but rather was violent to the point of
7 exacting permanent injury on the person who was
8 trying to rob them. So my point is in this -
9 can you explain to me in this legislation where,
10 so I just know, it explains that there can be an
11 opportunity for civil recovery that we're not
12 just insulating the system such that the
13 aggrieved does not have any recourse to come to
14 court, that the trier of fact has no opportunity
15 to speak on this matter. Where does your
16 legislation open the door?
17 Now, you have all of these
18 claims that it opens the door to the extent that
19 it has to be a situation where a crime is being
20 committed against a victim. I understand that,
21 but even victims of crime would be perceived to
22 have some responsibility once they have taken
23 themselves out of danger, not to then go on the
24 offensive and perhaps cripple or in some way
25 permanently injury the perpetrator.
4272
1 SENATOR NOZZOLIO: Senator, I
2 believe the question you ask is a very valid
3 point. That is a very valid point that is talked
4 about in virtually every law school in this
5 nation, during discussions of force, deadly
6 force, of the use of deadly force meeting other
7 forces. Certainly these are questions for
8 judges to ferret out when their staffs come
9 before them and they're legitimate questions,
10 Senator.
11 I think the answer to your
12 question, though, is that this measure does not
13 in any way mitigate the doctrine of, in my view,
14 in terms of the issue of force, terms of the
15 judge's ability to deal with those questions
16 that we're talking about, issues that are
17 appropriate when the commission of a crime
18 occurs, that the victim of that crime would be
19 given peace of mind and would be not subject to
20 civil litigation that would, in effect, further
21 victimize themselves.
22 These issues you discuss,
23 Senator, really, I believe are issues that
24 individual triers of fact, individual judges
25 must weigh. I don't believe this bars those
4273
1 types of discussions in courts of equity when
2 the cases are brought before those tribunals. We
3 are dealing here, I think, with another issue,
4 and this issue, in my view, does not eliminate
5 totally the discussions that -- when the
6 circumstances you describe are put before a
7 judge.
8 ACTING PRESIDENT MEIER: Senator
9 Paterson.
10 SENATOR PATERSON: Thank you, Mr.
11 President.
12 Finally, if Senator Nozzolio
13 would yield for one last question.
14 ACTING PRESIDENT MEIER: Does the
15 Senator yield?
16 SENATOR NOZZOLIO: For one last
17 question.
18 ACTING PRESIDENT MEIER: With
19 that qualification that Senator Paterson added,
20 the Senator yields for one last question.
21 SENATOR PATERSON: Senator, we
22 have an action that's brought in a court of law,
23 a tort action which means a wrong, which is
24 civil in -- in our way of rectifying these types
25 of issues, and we have a person that comes into
4274
1 court with this kind of allegation, one sitting
2 in the fact pattern of the scenarios that we
3 discussed here.
4 At that point, the trier of fact
5 has to make a determination as to whether or not
6 this case can go forward, and what I'm saying
7 is, can you give me the language in the
8 legislation that makes it clear that this is not
9 a blanket bar? In other words, even if the trier
10 of fact, and I think that you gave us quite a
11 sufficient answer just then and explained it
12 well, but what I'm just suggesting to you is
13 that what you're explaining actually can't
14 happen if the legislation becomes law.
15 At that point, even if you have,
16 Senator Nozzolio, where the trier of fact and
17 you looked at a situation and you just said, Oh,
18 wow! The plaintiff should certainly be allowed
19 to sue; this side doesn't have to go shooting at
20 kids because he was opening a car door, but you
21 had found as the judge in that case that you
22 would have to rule in such a way as to dismiss
23 the case because in the particular state, New
24 York, where there is a bar to these types of
25 cases being brought, in other words what you've
4275
1 done in the legislation, in my opinion, is
2 you've eliminated the trier of fact from having
3 the same decision that you suggested that the
4 trier of fact would make in the three examples
5 that I gave to you; and so my question is, so
6 that I can be relieved and many of us here who
7 are concerned will understand that what you're
8 saying will be borne out by the legislation
9 because what you're saying, I have actually no
10 problem with it, it makes perfect sense, and if
11 we could write the law the way you're saying it,
12 I'll vote for the legislation, but what I'm
13 reading in the actual bill is that, even though
14 the judge may be well intended and even though
15 you may be well intended and see the situation
16 where the plaintiffs' case should stand for
17 trial, the law that this state would adopt would
18 actually prohibit it, because it actually
19 creates what would be a bar to the action being
20 brought.
21 SENATOR NOZZOLIO: Senator, Mr.
22 President, in response to the Senator's
23 question, I think your counsel, Senator, in
24 response to your question, I believe your
25 counsel and you should look at those individual
4276
1 acts of excessive force that you've described
2 except in criminal acts themselves which they
3 are in the statutes of this state and that that
4 would trigger removal of the entire liability
5 protection because, in effect, your victim
6 becomes a perpetrator if under the facts you
7 describe, excessive force is used. That is a
8 separate criminal act; that is retaliation, in
9 effect, becomes a criminal act in and of
10 itself.
11 Let's get to the bottom line of
12 this statute, Senator. The bottom line is that
13 we're trying to protect innocent victims from
14 being further victimized. That's the bottom
15 line of this statute. We can talk about how many
16 lawyers stood on the edge of a pin all day
17 long, but the bottom line is that if you were
18 victimized by a crime and the criminal fleeing
19 from your house fell from your porch, you
20 wouldn't want to face an action against that
21 criminal because your porch wasn't put together
22 right. That's what we should be considering,
23 Senator, and that's the focus about lawyers and
24 hypotheticals and hypotheticals.
25 Thank you, Mr. President.
4277
1 ACTING PRESIDENT MEIER: Thank
2 you, Senator Nozzolio.
3 Senator Paterson.
4 SENATOR PATERSON: Senator
5 Nozzolio, as you know -
6 ACTING PRESIDENT MEIER: Are you
7 speaking on the bill, Senator Paterson?
8 SENATOR PATERSON: I absolutely
9 am. I'm barred from asking any further
10 questions by making that the last question, and
11 I think that there are two points that I think
12 need clarity, and I would hope that in the
13 future that we try to pass legislation on the
14 theory that's mindful of both of them.
15 The first one is what Senator
16 Nozzolio and I refer to as the trier of fact
17 actually in these types of situations. Prior to
18 the case actually being -- being heard, the
19 judge has to make a decision as to whether or
20 not, when the defense attorney brings a motion
21 to dismiss, whether or not there actually is a
22 case here, whether or not there's actually a
23 standing for the case to go forward, and in that
24 situation, the judge makes a decision on the
25 law, not the fact, and the decision on the law
4278
1 is whether or not the action that is being
2 brought by the plaintiff is actually permissible
3 under the laws of our state, and what I'm saying
4 is that what Senator Nozzolio's legislation
5 creates is a situation where a motion to dismiss
6 would be sustaining because there is no way to
7 try this case because Senator Nozzolio in taking
8 that away from the plaintiff, with good intent
9 where the victim was concerned, but over
10 reaching in terms of what would allow a
11 plaintiff to go forward, so when Senator
12 Nozzolio said that the plaintiff had other
13 options unfortunately, the plaintiff does not
14 have other options and the judge who, in this
15 case, is the trier of the law, has absolutely no
16 other course if they are going to follow the
17 rules that this Legislature has passed by
18 creating laws and the judge has got to throw
19 this case out. This case, these cases, the ones
20 I describe have got to be thrown out.
21 And the other point that I would
22 like to make, Mr. President, is one on just the
23 issue of what Senator Nozzolio suggests is that
24 in some of these cases they're actually criminal
25 acts. Well, that may be, Senator Nozzolio, and
4279
1 certainly the individual who might commit those
2 acts will be in many ways prosecuted. However,
3 that doesn't afford any protection to what is
4 now a new victim of a different crime. In other
5 words, the victim of the crime is now in a -- in
6 no position to seek any kind of criminal -
7 civil damages because, as I just explained, the
8 statute would bar any kind of recovery, and so
9 for those two reasons, I can't at this point
10 find that this legislation should pass, a piece
11 of legislation of this magnitude. Not because
12 there's anything wrong with its intent but
13 because its effect is over-reaching and that
14 Senator Nozzolio himself will look up one day
15 and see a situation where you've got a person
16 who may have been doing something that was
17 unlawful, wound up totally and permanently
18 disabled from the action of someone who became
19 unreasonable in their attempt to defend
20 themselves or their property.
21 These are difficult kinds of
22 situations. The King case is probably the most
23 famous situation and is a case in point
24 exactly. And we're all trying to create a
25 circumstance where we would be able to protect
4280
1 people who are victims of crimes from any kind
2 of action that would be taken against them when
3 they're put in a position of defending
4 themselves, and so it's my suggestion to my
5 colleagues and to Senator Nozzolio that we
6 should take a look at all the facts of some of
7 the famous cases that have provided information
8 on this particular issue, and we should recommit
9 this legislation, and I certainly feel that
10 until we take a look to further delineate how
11 the language should be adopted in compliance
12 with what we're trying to accomplish, that this
13 will not become law because too many people are
14 concerned about allowing a situation to be
15 computerized when the trier of facts which would
16 be the judge that would be supervising the civil
17 case would be the best arbiter of what should
18 happen in this situation. Otherwise all that
19 judge can do is to make a legal ruling on
20 whether the action is outside of the statute and
21 all of the scenarios I describe, as egregious as
22 they may have been, including the Rodney King
23 case, would fall right within that ambit of law
24 that would force the judge to throw the case
25 out.
4281
1 SENATOR GOLD: Mr. President.
2 ACTING PRESIDENT MEIER: Senator
3 Waldon.
4 SENATOR WALDON: Thank you very
5 much, Mr. President.
6 Would the learned gentleman yield
7 for a question or two?
8 ACTING PRESIDENT MEIER: Will you
9 yield?
10 SENATOR NOZZOLIO: I yield.
11 SENATOR WALDON: I apologize,
12 Senator Nozzolio. I was out of the room
13 focusing on other issues and I only caught the
14 tail end of the debate, so I may need some
15 edification in helping me to understand what
16 you're attempting to do.
17 One, is this applicable only to
18 situations where the victim of the criminal
19 action takes action against the aggressor?
20 SENATOR NOZZOLIO: Senator, in
21 response, Mr. President, to Senator Waldon's
22 question, this measure applies to those who are
23 victimized by crime and the action of the
24 perpetrator of the crime is brought in civil
25 court against the victim of the crime.
4282
1 I used a hypothetical, Senator,
2 and I'll just use it again briefly. This is a
3 real shock situation. An individual in their
4 business had a perpetrator of the crime come in
5 and break in. The victim scared the perpetrator
6 away. The perpetrator of the crime ran out of
7 the building and fell into the porch. Upon
8 falling he broke his leg and sued the victim,
9 the owner of the building, for damages. So it's
10 that type of action, Senator, where some
11 criminal is trying to profit from the injury
12 that occurred during the perpetration of the
13 crime.
14 It's four square within that
15 limitation. It bars those who are perpetrating
16 crimes from the civil action and then the
17 victims of those crimes for injuries sustained
18 only during that crime or fleeing the crime
19 scene.
20 SENATOR WALDON: Mr. President,
21 if the gentleman would yield again?
22 ACTING PRESIDENT MEIER: Would
23 the gentleman yield?
24 SENATOR NOZZOLIO: Yes.
25 ACTING PRESIDENT MEIER: The
4283
1 gentleman yields.
2 SENATOR WALDON: Thank you, Mr.
3 President. Thank you, Senator.
4 If I understand you correctly,
5 Senator Nozzolio, this hypothetical would not be
6 within the four squares of the situation you're
7 talking about, the one I'm presenting to you for
8 your knowledge and reaction. Joe Criminal robs
9 a bank. He gets in his car, drives away a
10 distance, parks the car and is walking across
11 the street, any intersection, it doesn't matter.
12 At that same moment that he's crossing the
13 street, someone who is drunk, someone who is
14 speeding, someone who goes through a red light
15 kills him as a result of the impact of the car
16 wrongfully driven while intoxicated, going
17 through a red light. This would not apply,
18 meaning the family of that victim, criminal
19 first, pedestrian second, could not sue the
20 driver of that car; is that what you're saying?
21 SENATOR NOZZOLIO: Mr. President,
22 Senator, in my opinion, the injured party, the
23 killed party, the murdered party in your
24 hypothetical, Senator Waldon, would not be
25 barred from recovering against that driver. But
4284
1 he would be barred from recovering against the
2 bank if an injury took place to the perpetrator.
3 Let's say the bank clock fell on his head as he
4 was leaving the bank and knocked him out cold.
5 That's the -- or knocked him out, and he broke a
6 couple of ribs. That type of injury is what
7 we're talking about, not the chain of causation,
8 or the chain that's been brought up two or three
9 times in your hypothetical, Senator, that he
10 might then be barred from recovery against the
11 perpetrator of the drunk driving accident.
12 SENATOR WALDON: Mr. President,
13 would the gentleman yield to a couple more
14 questions?
15 ACTING PRESIDENT MEIER: Will the
16 Senator yield?
17 SENATOR NOZZOLIO: Yes.
18 ACTING PRESIDENT MEIER: Senator
19 yields.
20 Senator Waldon.
21 SENATOR WALDON: Thank you very
22 much, Mr. President. I appreciate your
23 patience.
24 Let's suppose that the person -
25 let's suppose that the person who is injured has
4285
1 not left the scene and suffers a severe injury,
2 but the injury is caused by the negligence of
3 the owner of the building, meaning that somehow
4 the building itself has not been maintained in a
5 condition required by law. Would the person
6 still be barred from recovery?
7 SENATOR NOZZOLIO: Senator, what
8 we're trying to do in responding to your
9 question is that we can hypothetical to death,
10 but I think what we're trying to do is focus on
11 the assumption of risk of injury in the course
12 of the criminal conduct, in the course of the
13 criminal trespass. When you're entering into a
14 place to commit a crime, that is by definition
15 criminal trespass.
16 SENATOR WALDON: How about
17 definition of burglary?
18 SENATOR NOZZOLIO: Well, that
19 trespass, in effect, is something that is
20 barred, would be barred under this statute for
21 an individual getting civil relief because he
22 was injured in a particular spot while he was
23 committing a crime. Yes, he would be barred
24 from bringing the action against the building -
25 owner of the building rendered during the
4286
1 commission of a crime. That's the whole point.
2 We want to bar criminals from suing a building
3 owner where they get injured going into a
4 building and, if that's committing a crime, the
5 person is committing a crime, that's available
6 right now, is it not?
7 SENATOR NOZZOLIO: No, Mr.
8 President, it isn't for those criminals who are
9 looking at this. If the person who is in this
10 situation in the first place -
11 SENATOR WALDON: I'm sorry.
12 SENATOR NOZZOLIO: It's exactly
13 why we need this statute so we can deal with
14 those who are committing crimes and happen to be
15 injured and then suing their victims.
16 SENATOR WALDON: Mr. President, I
17 did not understand. I thought he said justice
18 and the courts are blind, is that what you said,
19 Senator?
20 SENATOR NOZZOLIO: I said a
21 number of things, and let me repeat.
22 SENATOR WALDON: Yes, and just let
23 me make sure I understand you correctly. I
24 thought you said sometimes the people, sometimes
25 the court is blind.
4287
1 SENATOR NOZZOLIO: No, what I
2 said was -
3 SENATOR WALDON: I'm not going to
4 knock that. I thought what you said was -
5 SENATOR NOZZOLIO: I said in
6 these circumstances the court is blind to the
7 reason why the person is in this particular
8 position in the first place, that what we're
9 trying to do is say to the court the Legislature
10 doesn't want a perpetrator of a crime who
11 happens to get injured during that crime to sue
12 the victim of the crime for civil liability and
13 we're saying that criminals assume the risk of
14 their criminal conduct and that's what this
15 legislation clearly defines. It establishes
16 this level.
17 SENATOR WALDON: Thank you very
18 much, Senator Nozzolio. If I may, on the bill.
19 ACTING PRESIDENT MEIER: Senator
20 Waldon, on the bill.
21 SENATOR WALDON: I trust the
22 court. I trust that you your can, when
23 information and facts of a case are presented to
24 them, can determine who is negligent, who is
25 not, who is a criminal and who is not. I think
4288
1 that what Senator Nozzolio is proposing is a bit
2 redundant, simply because the court is capable
3 of managing these affairs right now.
4 I notice in the accompanying
5 material to the proposal that the cases were
6 from other states, other jurisdictions, not
7 necessarily circumstances which have been judged
8 the same by the judges who sit in New York
9 State. I have very high regard for our
10 justices. I think that our judges would have
11 come down differently on these cases from the
12 facts presented in the accompanying material.
13 I see no need to burden judges
14 with our will -- pardon me, with Senator
15 Nozzolio's will on this particular issue. I
16 think the judges will do the right thing if
17 given the right facts. I think that those who
18 are criminals will be found to be so, and will
19 be found in the amount that they are
20 contributorily negligent in their injuries, that
21 that's how the courts will come down. I see no
22 reason to go through this exercise. It appears
23 to me to be somewhat an exercise in futility.
24 I will have to oppose it and vote
25 against it.
4289
1 Thank you, Mr. President. Thank
2 you, Senator Nozzolio.
3 ACTING PRESIDENT MEIER: Senator
4 Gold, Senator Stavisky had previously asked -
5 SENATOR GOLD: Oh, no, I yield.
6 ACTING PRESIDENT MEIER: Senator
7 Stavisky.
8 SENATOR STAVISKY: I will yield
9 to Senator Gold.
10 ACTING PRESIDENT MEIER: All
11 right. Senator Gold.
12 SENATOR GOLD: Would the
13 distinguished gentleman from Cornell yield for a
14 question?
15 SENATOR NOZZOLIO: Surely,
16 Senator.
17 ACTING PRESIDENT MEIER: Senator
18 yields.
19 SENATOR GOLD: Senator, just a
20 couple of questions. I understand that Senator
21 Paterson asked you how this would relate to the
22 Rodney King case and some others, and I think
23 you said in all fairness you weren't familiar
24 with all of the details, but what -- let's take
25 a for instance, Senator. I mean if you have a
4290
1 situation, an undisputed situation where
2 somebody is stopped by the police for traffic or
3 whatever, things get out of hand. The
4 individual goes past the line and let's say
5 commits a simple assault, a misdemeanor assault
6 on one of the police officers and takes that
7 fact pattern, that at that point there are a
8 number of police officers who get involved with
9 huge amounts of excessive force.
10 The way I read this construction,
11 Senator, I think that person has a problem in a
12 civil court. Now, do they or do they not have a
13 civil problem? Would they or would they not be
14 able to recover under your bill?
15 SENATOR NOZZOLIO: Senator, as we
16 discussed with Senator Paterson -
17 SENATOR GOLD: I'm sorry.
18 SENATOR NOZZOLIO: As we
19 discussed with Senator Paterson, the triggering
20 effect here is the commission of an additional
21 crime, additional criminality. I'm not sure I
22 understand totally your hypothetical.
23 SENATOR GOLD: Well, Senator,
24 that's fair, and I think that you're entitled to
25 have me be clear on the example, and I'll try to
4291
1 restate it. Forget Rodney King, forget anyone.
2 Let's create our own laboratory situation so
3 we're clear.
4 An individual is stopped for a
5 traffic light. For one reason or another,
6 things get out of hand and that individual
7 violates the law and slaps a police officer
8 causing no particular damage but going far
9 enough so that it's a misdemeanor. He assaulted
10 a police officer. No damage to the police
11 officer, at which point that policeman uses
12 excessive force to -- slams him in the head with
13 something and creates major damage to that
14 individual.
15 SENATOR NOZZOLIO: Senator, let
16 me respond. At that point I believe that we have
17 at least a new crime. The crime is not the
18 misdemeanor.
19 SENATOR GOLD: Sorry, Senator.
20 The new crime what?
21 SENATOR NOZZOLIO: The crime is
22 not the misdemeanor that becomes the special
23 event. It becomes -- the crime of excessive
24 force becomes the new threshold event. I think
25 it's an intervening crime, and it's excessive
4292
1 force by your definition which is criminal
2 conduct. That supersedes the different sources
3 of the initial misdemeanor violation, Senator,
4 that you describe.
5 SENATOR GOLD: Will the Senator
6 yield to a question?
7 ACTING PRESIDENT MEIER: Senator,
8 do you yield? Senator yields.
9 SENATOR GOLD: Senator, for one,
10 I am proud as a human that you are sensitive to
11 the fact that there is a problem here, but,
12 Senator, as you and I know, Senator Farley is
13 only partially right when he says we debate
14 ideas here. We really are supposed to be
15 debating laws, and in the law that you're
16 proposing it says that if the -- the defendant
17 or rather if the plaintiff has been convicted of
18 the crime, he's out of court, and it also talks
19 here, Senator, about the crime or leaving the
20 crime or whatever happens after that, and what
21 I'm saying to you, Senator, is that if the
22 person who is -
23 ACTING PRESIDENT MEIER: One
24 second, Senator Gold, Senator Nozzolio.
25 SENATOR NOZZOLIO: Senator, I
4293
1 have -
2 ACTING PRESIDENT MEIER: Could we
3 have order in the chamber, please. Could the
4 members take their conversations outside of the
5 chamber.
6 Senator Gold.
7 SENATOR GOLD: Thank you, Mr.
8 President.
9 Senator, if the individual
10 driving the car is found guilty of the
11 misdemeanor of slapping the officer unprovoked,
12 then you've got a conviction under your section
13 and then following through with your section,
14 since the excessive force causes the damage,
15 Senator, I don't see anything in your bill that
16 talks about intervening acts following
17 felonies. None of that is in your bill.
18 Your bill just says if you have
19 perpetrated a crime, the person that you have
20 perpetrated it upon has a perfect defense if
21 you're convicted of the crime. In the situation
22 I gave you, the individual is convicted of
23 slapping a police officer, and a police officer
24 thereupon bashes in his brains, leaves him, God
25 forbid, a quadriplegic and, under this bill, we
4294
1 have created a total defense to that.
2 Now I'm not saying, Senator -
3 Senator, listen to me -- that the police officer
4 cannot be convicted of a crime. This is a bill
5 dealing with civil liability.
6 SENATOR NOZZOLIO: Mr. President,
7 this question is one that I would like to
8 address.
9 SENATOR GOLD: Yeah.
10 SENATOR NOZZOLIO: We've heard it
11 and we're talking about when the personal injury
12 or injury to property occurs while the plaintiff
13 is engaged in the conduct constituting a crime.
14 Now, that conduct, once the misdemeanor, once
15 the -
16 SENATOR GOLD: Or flight.
17 SENATOR NOZZOLIO: Or flight
18 therefrom, a hypothetical. The misdemeanor
19 violation takes places in the custody of the
20 police. He's now committing a crime. He's not
21 in a place, so, Senator -
22 SENATOR GOLD: Senator, your
23 comments are fair, your comments are fair but if
24 I may, Mr. President, he slaps the police
25 officer.
4295
1 SENATOR NOZZOLIO: New crime.
2 SENATOR GOLD: No, no, he slaps
3 the police officer.
4 SENATOR NOZZOLIO: New crime.
5 SENATOR GOLD: Wait a minute,
6 wait a minute. You slap him, new crime. He
7 slaps the officer and at that point it gets out
8 of hand. He slaps the police officer and it's a
9 misdemeanor.
10 SENATOR NOZZOLIO: New crime.
11 SENATOR GOLD: It's the first
12 time.
13 SENATOR NOZZOLIO: Senator, Mr.
14 President, if I -- really, you got to keep track
15 of your own -
16 SENATOR GOLD: I'm -- you're
17 giving -- Mr. President.
18 ACTING PRESIDENT MEIER: We need
19 to have some order.
20 SENATOR GOLD: Well, I'm trying
21 to give him the question but I'm being
22 interrupted.
23 Senator, the man is driving the
24 car, he does nothing wrong. He does no crime.
25 He stops the car; it gets out hand and he slaps
4296
1 the police officer for the first time. He
2 realizes he slaps the police officer and he
3 turns around to flee, whereupon he gets bashed
4 in the head with a gun, and the police officer
5 continues to bash him, and that is the flight
6 from the crime, exactly what your bill is
7 talking about.
8 SENATOR NOZZOLIO: I thought,
9 Senator, we've got two crimes. The first crime
10 is the bopping on the head. The second crime is
11 the flight. So, Senator, I think that it's your
12 -- what you need to focus on here, in
13 understanding the measure, is that any
14 successively intervening crimes occurs that
15 triggers a new set of circumstances, a new cast
16 of characters, and I think for you to concern
17 yourself with the intervening crimes without
18 understanding that this is on an individual
19 issue, that rather than clarify the issue,
20 you're thinking of too many. Each crime is a
21 new set of circumstances, Senator, and I believe
22 the legislation adapts appropriately to those
23 new circumstances.
24 SENATOR GOLD: Thank you. Will
25 the Senator yield to a question?
4297
1 ACTING PRESIDENT MEIER: Will the
2 Senator yield?
3 SENATOR NOZZOLIO: Yes, sir.
4 ACTING PRESIDENT MEIER: The
5 Senator yields.
6 SENATOR GOLD: Senator Nozzolio,
7 no matter how many times you say to me that it's
8 a new crime and I'm misreading the bill, there
9 are a lot of people listening and they know
10 who's misreading and who's not misreading,
11 Senator, and I know it's your legislation and I
12 know you're proud of it, but the fact is that
13 I'm still entitled to the proper answers.
14 The fact is, if somebody slaps
15 the police officer and at that point does
16 nothing else, he's there, he hasn't been
17 arrested or whatever, and the police officer in
18 the middle of the slap, three-quarters of the
19 way, commits an offense and hurts this man,
20 Senator, any way you want to look at it, your
21 bill as I read it, protects a police officer
22 from not only over-reacting but huge over
23 reacting, huge over-reacting.
24 Now, it may be, Senator, that you
25 say to me that's O.K. if it happens once because
4298
1 whoever is doing it but, Senator, to say it
2 doesn't when it's clear to everybody that it
3 absolutely justifies civilly, not criminally, it
4 absolutely justifies civilly over-reaction by
5 the police department -
6 SENATOR NOZZOLIO: Senator, in
7 response to that question, I don't see how you
8 negate the fact that excessive force is not a
9 separate crime. Excessive force by the police
10 officer would not be a separate intervening
11 crime here.
12 Senator, I think that that
13 triggers a new plaintiff, a new defendant, and
14 that if I believe that, we're (inaudible) rather
15 than generating a victim of the crime who was
16 the original driver of your car in your hypo
17 thetical.
18 SENATOR GOLD: Will the Senator
19 yield to a question?
20 ACTING PRESIDENT MEIER: Does the
21 Senator yield?
22 SENATOR NOZZOLIO: Yes.
23 ACTING PRESIDENT MEIER: The
24 Senator yields.
25 SENATOR GOLD: Senator, I just
4299
1 had an interesting thing happen, the first time
2 in all of my time in the Senate. A judge wrote
3 a decision -- it was a federal judge and he
4 interpreted a statute that we passed, all of us,
5 and he quoted from the debate and he said that I
6 asked a question of somebody and based upon that
7 he got some idea of legislative intent. So
8 these questions, Senator, while sometimes we
9 don't think they're important, they're starting
10 to show up in court decisions.
11 Senator, did you just tell me for
12 the purpose of legislative intent that if
13 somebody commits a crime and is convicted of
14 that crime but the officer involved uses
15 excessive force, that's a separate crime and
16 then the first -- the criminal, who is the guy
17 in the first crime, can sue even in spite of
18 your law?
19 SENATOR NOZZOLIO: Mr. President,
20 Senator, in response to your question, excessive
21 force by definition is a crime. Is that not
22 correct, Senator?
23 SENATOR GOLD: My question is,
24 are you saying as a matter of legislative intent
25 that if a police officer over-reacts to a
4300
1 criminal, even if the criminal is convicted,
2 under your law, the criminal can still sue him.
3 SENATOR NOZZOLIO: Senator, if
4 that over-reaction that you characterize rises
5 to the definition of separate criminal conduct.
6 If your definition of excessive force equals the
7 definition of a crime, then, yes, Senator,
8 that's exactly what I'm saying.
9 SENATOR GOLD: Will the Senator
10 yield to another question?
11 ACTING PRESIDENT MEIER: Will the
12 Senator yield?
13 SENATOR NOZZOLIO: Yes, Mr.
14 President.
15 ACTING PRESIDENT MEIER: The
16 Senator yields.
17 SENATOR GOLD: Senator, supposing
18 that the initial criminal is prosecuted but as a
19 result of motion practice, the case is thrown
20 out -- the crime could have been a terrible
21 crime and as a matter of fact, it could have
22 been, God forbid, rape. It could have been
23 serious criminal conduct and in leaving this,
24 the scene of a rape, the father sees it and he
25 goes bananas and the criminal is really injured
4301
1 very badly -- which he may have deserved but as
2 a result of motion practice, the case is thrown
3 out and there's no conviction. Under your
4 statute, I assume the criminal can sue the
5 father, isn't that true?
6 SENATOR NOZZOLIO: Senator, I
7 believe that that action which occurred while
8 the claimant was engaged in some conduct
9 constituting a crime would be an issue for a
10 judge, the trier of fact, to determine, that the
11 title of this section is assumption of risk by
12 persons convicted of a crime. As such, I think
13 that certainly we're -- our intent is to focus
14 only on conviction. However, a trier of fact, I
15 could see talking -- analyzing the facts and
16 making a separate determination possibly beyond
17 the definitions that we propose.
18 SENATOR GOLD: Will the Senator
19 yield to one more question?
20 ACTING PRESIDENT MEIER: Will the
21 Senator yield to one more question?
22 SENATOR NOZZOLIO: Yes, Mr.
23 President.
24 ACTING PRESIDENT MEIER: The
25 Senator yields.
4302
1 SENATOR GOLD: Senator -- and
2 just listen to the question. Supposing that one
3 of the tenants in Senator Bruno's district was
4 in their home and somebody entered that property
5 and I'm sure -- let's say it's one of these
6 large apartment houses, 15 stories, a few
7 hundred tenants, the typical thing you find in
8 Rensselaer County, and the individual pulls out
9 a gun, holds up the tenant, robs money from the
10 tenant and then in fleeing from the property is
11 injured because a board or something is
12 defective in the floor and he falls into the
13 floor. The individual, having fell into the
14 floor, breaks his leg. He is captured and he's
15 convicted of the robbery. May he sue the
16 landlord for the broken leg because of the
17 defect in the floor?
18 SENATOR NOZZOLIO: Mr. President,
19 under the provisions of the statute, that
20 plaintiff would be barred from successful
21 completion of his litigation.
22 SENATOR GOLD: Okay. Well,
23 Senator, if you'd yield to one more question. I
24 don't think so.
25 SENATOR NOZZOLIO: Last question.
4303
1 SENATOR GOLD: Because, Senator,
2 what your law says -- and maybe you can answer
3 this. What your law says is that if the
4 defendant in the case was the victim of the
5 crime, then the defense applies. The victim of
6 the robbery was the tenant. The landlord was
7 not the victim of the robbery and if there was
8 no plea to a count of trespass, the landlord,
9 even under your bill, is, I assume, responsible
10 and has no defense.
11 SENATOR NOZZOLIO: Mr. President.
12 SENATOR GOLD: And I know that
13 this landlord -
14 SENATOR NOZZOLIO: Mr. President,
15 even though that wasn't -- even though Senator
16 Gold promised that the question before was to be
17 his last question, I would be glad to answer
18 this question. This question presupposes that
19 the individual entered this building in a valid
20 way. Isn't the victim of a criminal trespass
21 the owner of that building?
22 SENATOR GOLD: Not unless there's
23 a conviction for it, Senator. Read your bill.
24 SENATOR NOZZOLIO: I thought you
25 said he was convicted.
4304
1 SENATOR GOLD: If the person was
2 charged with robbery and was convicted of the
3 robbery but was not charged or did not plead
4 guilty to criminal trespass, then there's no
5 criminal trespass victim of the owner of the
6 building and even in Rensselaer County with its
7 huge apartment buildings and its huge tenant
8 population, that would, I think, be the law.
9 SENATOR NOZZOLIO: Senator, is
10 that -- is that a question?
11 SENATOR GOLD: Yeah. I was
12 asking you to respond.
13 ACTING PRESIDENT MEIER: The
14 Senator did not ask you to yield to a question,
15 actually.
16 SENATOR GOLD: Oh, all right.
17 ACTING PRESIDENT MEIER: Senator
18 Gold.
19 SENATOR GOLD: I have a great
20 sympathy for the problem that is being addressed
21 by Senator Nozzolio, and I think as Senator
22 Paterson pointed out, there was a case in New
23 York which happened, I believe in the subway
24 system. So that has to be New York because,
25 while Rensselaer has huge apartment buildings,
4305
1 it doesn't have a subway system. So that
2 example could only be in New York and many of us
3 were really rather taken that Mr. Sandusky wound
4 up with nothing and the criminal in that case
5 wound up with a rather substantial award and so,
6 Senator Nozzolio, I agree with you that we ought
7 to do something to open up that door and/or
8 certainly close the door when it comes to the
9 criminal cashing in, so to speak, on a series of
10 events that were started by the criminal, but I
11 really do believe, Senator, that the bill has a
12 lot of drafting problems and when I say it's got
13 drafting problems, don't misunderstand me. I
14 don't think you're wrong in trying to tackle
15 this problem. I think you're on the right track
16 to tackle the problem. I think it's a problem
17 that should be dealt with, but I think that what
18 happens -- and I must refer to my friend Senator
19 Fo... Senator Fo... I don't know why I'm messing
20 this thing up. Senator Farley. I don't know
21 why I would say Foley. Where was I getting
22 Foley? My friend, Senator Farley, if it was a
23 question -- just warming up -- if it was a
24 question, Senator Nozzolio, of debating an
25 issue, I don't think anybody on this side of the
4306
1 aisle or on your side of the aisle would have an
2 argument with you on the issue and if we were
3 having cocktails -- and it's after 5:00 and I
4 know we all wish we were -- and we were
5 discussing this generally and I said do you
6 think somebody who commits a crime and they
7 happen to get hurt or injured during the crime,
8 do you think they should be able to recover,
9 nobody on this planet is going to deny that you
10 are on the right track when you say what you say
11 but, Senator, there's no such way of passing
12 laws.
13 The way we pass laws is by
14 specific bills with specific wording in them and
15 all we're saying to you, Senator Nozzolio, is
16 this could become a law and it could be the
17 Nozzolio Law but why don't we do it the right
18 way?
19 If the suggestions made by
20 Senator Paterson were yielded to, it's not going
21 to become the Paterson Law. It's still going to
22 be your pen certificate. You'll still be the
23 one standing by the Governor and with the
24 Attorney General and everybody around carrying
25 the Flag, the Conservative Party and everybody
4307
1 else, it's still your law. It's just we're
2 suggesting that you make it a little better and
3 in that regard, Senator, there are flaws in this
4 law and what is going to happen, if this were to
5 become the law, is that this probably, Senator
6 -- and this is just a guess. Nobody knows -
7 80 percent -- 80 percent of the time this law
8 will be used, it will be used against people
9 perhaps in the civil rights movement. It will
10 be against people of minorities who are stopped
11 improperly or in situations where you, Senator,
12 if you were in a similar situation, would not be
13 involved.
14 So I think we owe it in drafting
15 such a law to make sure that we get the bad guys
16 and we keep the money away from the bad guys but
17 that we do it in a way that protects those
18 people who really should be protected.
19 ACTING PRESIDENT MEIER: Any
20 other Senator -- Senator Abate.
21 SENATOR ABATE: Would Senator
22 Nozzolio yield to a question?
23 ACTING PRESIDENT MEIER: Will the
24 Senator yield?
25 SENATOR NOZZOLIO: Yes.
4308
1 ACTING PRESIDENT MEIER: The
2 Senator yields.
3 SENATOR ABATE: Yes, Senator, I
4 agree with the concept of this bill that victims
5 who act reasonably to safeguard their life and
6 limb should not be faced with civil lawsuits
7 that -- in that effort when they do injure a
8 defendant. I'm concerned, however -- and I
9 wonder if you will entertain laying this bill
10 aside and looking at tightening this language.
11 I know there have been suggestions by Senator
12 Gold and Senator Paterson.
13 My concern is -- and correct me
14 -- your prior statement said that if a victim
15 acted in self-defense and reasonably, there
16 would be a bar to any civil recovery by the
17 defendant if that defendant was convicted in the
18 courts. Does this bill address in any language
19 if they acted unreasonably or did not act in
20 self-defense?
21 The example is someone
22 burglarized their home. They wake up. The
23 defendant leaves -- leaves the premises and the
24 victim chases -- the victim chases the defendant
25 down the street four, five blocks away, shoots
4309
1 the defendant in the back. Now, clearly it
2 seems by the intent of your legislation you do
3 not envision that that would be reasonable
4 conduct or that would be reasonable and
5 legitimate self-defense.
6 So would you consider, Senator
7 Nozzolio -- because I agree with the concept.
8 Many victims are unfairly facing this civil
9 recovery. Would you consider tightening up this
10 language so it only covers reasonable conduct,
11 legitimate self-defense, et cetera?
12 SENATOR NOZZOLIO: Senator, in
13 response to your question, I believe the statute
14 before us does take into consideration that very
15 well. As I explained to Senator Gold and
16 Senator Paterson, when there is a superseding
17 criminal event, that changes the makeup of the
18 cast of characters under this bill. The victim,
19 if he's convicted of excessive force, becomes,
20 in effect, a criminal by definition and those
21 definitions, as they change -- if you're
22 defining excessive force as criminal excessive
23 force, that sufficiently changes the characters
24 in this that are impacted by this legislation.
25 I believe it's taken care of sufficiently.
4310
1 SENATOR ABATE: Would Senator
2 Nozzolio yield to another question?
3 ACTING PRESIDENT MEIER: Does the
4 Senator yield? The Senator yields.
5 SENATOR ABATE: But, Senator, if,
6 in fact, that's the intent of this legislation
7 -- and many of us feel that the wording of this
8 legislation is ambiguous and could be
9 interpreted in different ways -- why not in
10 plain English ensure that this will be
11 interpreted correctly to ensure that we're
12 talking about reasonable conduct, legitimate
13 self-defense on the part of the victim?
14 SENATOR NOZZOLIO: Senator, I
15 don't see how that would do anything but -
16 SENATOR ABATE: How would that -
17 SENATOR NOZZOLIO: Senator, let
18 me respond to your question. We have already
19 set in our criminal statutes definitions for
20 excessive force for those types of issues that
21 you seem to be concerned with. If someone is
22 convicted of excessive force, that changes -- I
23 sound like a broken record, but that changes the
24 definition of that individual. He becomes no
25 longer the victim but the perpetrator of a
4311
1 crime. So, therefore, he does not, as
2 perpetrator of the crime, have the protections
3 afforded by this measure. It's not -- we've
4 already set forth the definitions of excessive
5 force. We've already clearly defined them. I
6 think that to further tinker with them doesn't
7 add clarity to our statutes or this measure and,
8 therefore, I reject that request -
9 SENATOR ABATE: But, Senator -
10 SENATOR NOZZOLIO: -- respect
11 fully.
12 SENATOR ABATE: Senator Nozzolio,
13 would you agree -
14 ACTING PRESIDENT MEIER: Senator
15 Abate, do you wish the Senator to continue to
16 yield?
17 SENATOR ABATE: Yes.
18 ACTING PRESIDENT MEIER: Senator,
19 do you yield?
20 (Senator Nozzolio nods head.)
21 ACTING PRESIDENT MEIER: He
22 continues to yield.
23 Senator Abate.
24 SENATOR ABATE: Senator, I'm glad
25 that your legislative intent is one that I can
4312
1 embrace. My concern is, if we added this
2 language, which in my mind would be needed to
3 clarify it, how would that in any way be
4 inconsistent with the legislative intent of this
5 bill? You may not think it's necessary but is
6 it inconsistent with the intent?
7 SENATOR NOZZOLIO: Mr. President,
8 I would have to -- before responding to that,
9 Senator, I would have to see the specific
10 language you're proposing. I would also
11 recommend the assistance of you and your
12 colleagues on that side of the aisle to get this
13 measure introduced and passed in the Assembly,
14 that the members of your party in the Assembly
15 have chosen not to protect victims in this sort
16 of way and certainly, if they did, there was a
17 bill that came before us that had that
18 definition and certainly recommend a Conference
19 Committee that we look at that difference but,
20 frankly, we do not have action in the Assembly
21 to protect victims like -- as we are taking
22 here.
23 SENATOR ABATE: On the bill.
24 ACTING PRESIDENT MEIER: Senator
25 Abate, on the bill.
4313
1 SENATOR ABATE: I will support
2 the bill because I agree with the concept and I
3 agree with the legislative intent as outlined by
4 Senator Nozzolio. I hope by Senator Nozzolio's
5 statement this is an invitation by some of us to
6 work with him to maybe reach a compromise on
7 language that better accomplishes the intent of
8 the sponsor.
9 So as the ranking member on Crime
10 Victims, Crime and Correction, I hope to be
11 working with you and your staff so this is not a
12 one-house bill. This is a bill that can be
13 embraced not just by the Senate but also by the
14 Assembly. I think in that effort we can help
15 victims and do it in a responsible way.
16 ACTING PRESIDENT MEIER: Read the
17 last section.
18 THE SECRETARY: Section 2. This
19 act shall take effect immediately.
20 ACTING PRESIDENT MEIER: Call the
21 roll.
22 (The Secretary called the roll.)
23 SENATOR PATERSON: Slow roll
24 call.
25 ACTING PRESIDENT MEIER: A slow
4314
1 roll call has been requested. Are there five
2 members standing who wish to request a slow roll
3 call?
4 The Secretary will call the
5 roll.
6 THE SECRETARY: Senator Abate.
7 SENATOR ABATE: Yes.
8 THE SECRETARY: Senator Alesi.
9 SENATOR ALESI: Yes.
10 THE SECRETARY: Senator Breslin.
11 (There was no response.)
12 Senator Bruno.
13 SENATOR BRUNO: Yes.
14 THE SECRETARY: Senator Connor.
15 (Affirmative indication)
16 THE SECRETARY: Senator Cook.
17 SENATOR COOK: Yes.
18 THE SECRETARY: Senator
19 DeFrancisco.
20 SENATOR DeFRANCISCO: To explain
21 my vote. I too feel that this is a -- the
22 legislative intent of this bill is good
23 legislative intent and I'm going to support the
24 bill and vote yes, but I do want to state for
25 the record that I believe that there are some
4315
1 flaws in the language that hopefully will be
2 corrected as it goes forward because under this
3 bill right now, it's conceivable that an
4 individual who strikes someone and is retaliated
5 against by the initial victim by way of having
6 their arm blown off cannot sue that individual
7 for blowing his arm off but that individual who
8 used the excessive force could actually be
9 convicted of a crime.
10 Now, there's something basically
11 inconsistent about that approach. The concept
12 is good, but I think it needs a little bit more
13 refinement.
14 I'll vote yes, assuming that that
15 will happen.
16 ACTING PRESIDENT MEIER: Senator
17 DeFrancisco will be recorded in the affirmative.
18 The Secretary will resume the
19 roll call.
20 THE SECRETARY: Senator
21 Dollinger.
22 SENATOR DOLLINGER: Mr.
23 President, just to explain my vote. I concur
24 completely with Senator DeFrancisco.
25 I vote yes with the same
4316
1 reservations.
2 ACTING PRESIDENT MEIER: Senator
3 Dollinger, in the affirmative.
4 THE SECRETARY: Senator Farley.
5 SENATOR FARLEY: Aye.
6 THE SECRETARY: Senator Gentile.
7 (There was no response.)
8 Senator Gold.
9 (There was no response.)
10 Senator Gonzalez.
11 (There was no response.)
12 Senator Goodman.
13 (There was no response.)
14 Senator Hannon.
15 SENATOR HANNON: Yes.
16 THE SECRETARY: Senator Hoffmann,
17 excused.
18 Senator Holland.
19 SENATOR HOLLAND: Yes.
20 THE SECRETARY: Senator Johnson.
21 SENATOR JOHNSON: Aye.
22 THE SECRETARY: Senator Kruger.
23 (There was no response.)
24 Senator Kuhl.
25 SENATOR KUHL: Aye.
4317
1 THE SECRETARY: Senator Lachman.
2 SENATOR LACHMAN: Aye.
3 THE SECRETARY: Senator Lack.
4 SENATOR LACK: Aye.
5 THE SECRETARY: Senator Larkin.
6 SENATOR LARKIN: Aye.
7 THE SECRETARY: Senator LaValle.
8 SENATOR LAVALLE: Aye.
9 THE SECRETARY: Senator Leibell.
10 (Affirmative indication)
11 THE SECRETARY: Senator Leichter.
12 SENATOR LEICHTER: Mr. President,
13 to explain my vote. There's a real gap in this
14 bill between what the sponsor says he's seeking
15 to do and what the bill does. Even supporters
16 of the bill have said this is a flawed bill.
17 The point is it's so easy to
18 correct this bill. We have any number of
19 measures during the course of a year where we
20 may immunize somebody from their action in
21 committing simple negligence but provide that
22 they're not immunized from gross negligence and
23 if you put that provision in the bill, it would
24 probably pass 61 to nothing and it's only the
25 sort of attitude that we get here that once a
4318
1 bill is put out on the floor, it has greater
2 sanctity than the works of the Apostles. It
3 can't be changed. It can't be improved upon.
4 So we're going to pass a bill that even the
5 supporters -- and I suspect some of them feel
6 they don't -
7 ACTING PRESIDENT MEIER: Excuse
8 me one moment, Senator Leichter. Can we have
9 some order in the house, please.
10 Senator Leichter.
11 SENATOR LEICHTER: I suspect that
12 some of the supporters feel uncomfortable as I
13 do in certain respects. You know, we're voting
14 to assert the rights of criminals instead of
15 protecting the victims, but the fact of the
16 matter is that we want a good, workable bill and
17 this one -- this one just doesn't do it and it's
18 not enough to say, Well, the bill has some flaws
19 but the intent is clear. If the bill says
20 black, no matter how much the sponsor says I
21 intend white, the court has to interpret it as
22 black.
23 So I'm afraid that until Senator
24 Nozzolio comes back and decides that what he put
25 out in the first instance wasn't the most
4319
1 infallible perfect piece of legislation ever
2 written and write something that carries out his
3 intent, I'm constrained to vote against the
4 bill.
5 I vote nay.
6 ACTING PRESIDENT MEIER: Senator
7 Leichter in the negative.
8 Resume the roll call.
9 THE SECRETARY: Senator Levy.
10 SENATOR LEVY: Aye.
11 THE SECRETARY: Senator Libous.
12 SENATOR LIBOUS: Aye.
13 THE SECRETARY: Senator Maltese.
14 SENATOR MALTESE: Aye.
15 THE SECRETARY: Senator
16 Marcellino.
17 SENATOR MARCELLINO: Aye.
18 THE SECRETARY: Senator Marchi.
19 SENATOR MARCHI: Aye.
20 THE SECRETARY: Senator
21 Markowitz.
22 SENATOR MARKOWITZ: Yes.
23 THE SECRETARY: Senator Maziarz.
24 SENATOR MAZIARZ: Yes.
25 THE SECRETARY: Senator Meier.
4320
1 SENATOR MEIER: Yes.
2 THE SECRETARY: Senator Mendez.
3 SENATOR MENDEZ: No.
4 THE SECRETARY: Senator
5 Montgomery.
6 SENATOR MONTGOMERY: No.
7 THE SECRETARY: Senator Nanula.
8 SENATOR NANULA: Yes.
9 THE SECRETARY: Senator Nozzolio.
10 SENATOR NOZZOLIO: Aye.
11 THE SECRETARY: Senator Onorato.
12 SENATOR ONORATO: Aye.
13 THE SECRETARY: Senator
14 Oppenheimer.
15 SENATOR OPPENHEIMER: Aye.
16 THE SECRETARY: Senator Padavan.
17 SENATOR PADAVAN: Yes.
18 THE SECRETARY: Senator Paterson.
19 SENATOR PATERSON: Mr. President,
20 it is very likely that one day an appellate
21 court is going to review this legislation and
22 something that Senator Gold said -- not that he
23 needs to be complimented any more because he is
24 -- well, yeah. Senator Gold, who, in my
25 opinion, there's no one that works harder in
4321
1 government right now, he pointed out in this
2 discussion that there was recently an appellate
3 case where the legislative intent entailed an
4 examination of the legislative discussion and
5 the judges actually went through the transcript.
6 If they went through the transcript today and
7 they heard what Senator Nozzolio intends to
8 happen through this legislation, we'll be in a
9 lot better shape than if we pass the legisla
10 tion. There are a number of people who have
11 described problems they have with the legisla
12 tion and decided they wanted to vote for it.
13 This is the type of law that, if
14 you vote against it, you are pilloried and
15 cajoled as someone who doesn't want to protect
16 crime victims, but there is something that is
17 very important in this American government and
18 it has to do with our right to have our disputes
19 settled in a court of law and in certain
20 situations, we might bar an action in a court of
21 law because we feel that there is no just
22 claim. This is not one of those situations and
23 no matter how well it may seem and how well
24 intended it may be, there is no language in this
25 bill that talks about supervening crimes which
4322
1 Senator Nozzolio referred to. There's nothing
2 in this bill -
3 ACTING PRESIDENT MEIER: Senator
4 Paterson, could you suspend just a second. Can
5 we have some order in the house. Can the
6 members please stop their conversation so we can
7 hear Senator Paterson and continue the roll
8 call.
9 Senator Paterson.
10 SENATOR PATERSON: Thank you, Mr.
11 President.
12 The -- there's nothing in the
13 actual language of the legislation that provides
14 for some of the protections and the cures that
15 Senator Nozzolio assured us were within his
16 contemplation when he wrote the legislation and
17 that's not extraordinary that that happens and
18 it's also not -
19 ACTING PRESIDENT MEIER: Senator
20 Paterson, the time limit on the rules to explain
21 the vote has expired. Would you state your
22 vote, sir, so we can continue the roll call.
23 SENATOR PATERSON: My vote is no,
24 Mr. President.
25 ACTING PRESIDENT MEIER: Senator
4323
1 Paterson in the negative.
2 Resume the roll call.
3 THE SECRETARY: Senator Present.
4 SENATOR PRESENT: Aye.
5 THE SECRETARY: Senator Rath.
6 SENATOR RATH: Aye.
7 THE SECRETARY: Senator Rosado.
8 SENATOR ROSADO: No.
9 THE SECRETARY: Senator Saland.
10 SENATOR SALAND: Aye.
11 THE SECRETARY: Senator Sampson.
12 SENATOR SAMPSON: Aye.
13 THE SECRETARY: Senator Santiago.
14 SENATOR SANTIAGO: Yes.
15 THE SECRETARY: Senator Seabrook.
16 SENATOR SEABROOK: No.
17 THE SECRETARY: Senator Seward.
18 SENATOR SEWARD: Yes.
19 THE SECRETARY: Senator Skelos.
20 SENATOR SKELOS: Yes.
21 THE SECRETARY: Senator Smith.
22 SENATOR SMITH: No.
23 THE SECRETARY: Senator Spano.
24 SENATOR SPANO: Aye.
25 THE SECRETARY: Senator
4324
1 Stachowski.
2 SENATOR STACHOWSKI: Yes.
3 THE SECRETARY: Senator Stafford.
4 SENATOR STAFFORD: Yes.
5 THE SECRETARY: Senator Stavisky.
6 (There was no audible response.)
7 Senator Trunzo.
8 SENATOR TRUNZO: Yes.
9 THE SECRETARY: Senator Tully.
10 SENATOR TULLY: Aye.
11 THE SECRETARY: Senator Velella.
12 (There was no response.)
13 Senator Volker.
14 SENATOR VOLKER: Yes.
15 THE SECRETARY: Senator Waldon.
16 SENATOR WALDON: Explain my vote.
17 ACTING PRESIDENT MEIER: Senator
18 Waldon.
19 SENATOR WALDON: Thank you, Mr.
20 President.
21 If this were a perfect world,
22 then what Senator Nozzolio has proposed, we
23 could all accept because when there is
24 perfection, no mistakes are made but this is not
25 a perfect world and many mistakes are made and
4325
1 my fear is that the mistakes made by the
2 over-zealous grocer, when a kid takes a bag of
3 potato chips, as happened in California, and is
4 killed for a bag of potato chips, that is too
5 far -- going too far.
6 My fear is that -- and I support
7 police and everyone here knows it, but what
8 about the over-zealous police officer who, in
9 apprehending a criminal, forgets his training,
10 forgets the restrictions placed upon him and
11 over-zealously chokes someone, as the young man
12 in the Bronx, Baez, was choked or shoot someone
13 in the back as was Cedeno. Too far mistakes are
14 made.
15 For those reasons, because we are
16 in an imperfect world and mistakes are made, I
17 cannot support this proposal and vote in the no.
18 ACTING PRESIDENT MEIER: Senator
19 Waldon in the negative.
20 Resume the roll call.
21 THE SECRETARY: Senator Wright.
22 SENATOR WRIGHT: Aye.
23 ACTING PRESIDENT MEIER: Call the
24 absentees.
25 THE SECRETARY: Senator Breslin.
4326
1 SENATOR BRESLIN: Aye.
2 THE SECRETARY: Senator Gentile.
3 (There was no response.)
4 Senator Gold.
5 SENATOR GOLD: Mr. President, to
6 explain my vote.
7 Mr. President, I really feel
8 badly about this particular bill because, while
9 there are different involvements that we all
10 have with legislation as things go along, the
11 Sandusky-Cummings case was one that I not only
12 knew about but the judge in that case was a
13 fraternity brother of mine in college and one of
14 the things that was involved in that case was
15 the "Son of Sam" Law that I wrote and I know the
16 issues, and it's no different now than what I
17 said some 20 minutes ago.
18 If it's a question of what to do
19 with the general concept. Senator Farley's
20 right. We can all make an easy vote and get out
21 of here, but it's a shame that we are put in a
22 position, as we so often are in this house,
23 where the Majority, in its sloppiness, not our
24 sloppiness -- you know, we pass some 5-, 600
25 bills. You can only blame two of the
4327
1 sloppinesses on us. All the rest of the junk is
2 ours. Because of the sloppiness, you put us on
3 the horns of these dilemmas.
4 Senator Nozzolio, I am going to
5 vote with my ranking member, Senator Abate. I
6 will support the concept but I hope, Senator,
7 that in the traditions of that great place in
8 Ithaca that you and I both know about, that your
9 ears and eyes and mind are not closed to some
10 meaningful discussions so that we can put
11 something together that might be an effective
12 law.
13 I very reluctantly, in the
14 Senator Farley tradition, will vote yes.
15 ACTING PRESIDENT MEIER: Senator
16 Gold in the affirmative.
17 THE SECRETARY: Senator Gonzalez.
18 SENATOR GONZALEZ: Yes.
19 THE SECRETARY: Senator Goodman.
20 (There was no response.)
21 Senator Velella.
22 SENATOR VELELLA: Yes.
23 THE SECRETARY: Senator Kruger.
24 SENATOR KRUGER: Yes.
25 ACTING PRESIDENT MEIER: Announce
4328
1 the results.
2 THE SECRETARY: Ayes 50, nays 8.
3 ACTING PRESIDENT MEIER: The bill
4 is passed.
5 The Secretary will read.
6 THE SECRETARY: Calendar Number
7 819, by Senator Lack, Senate Print 3479, an act
8 to amend the General Municipal Law, in relation
9 to filing of a notice of claim.
10 SENATOR PATERSON: Explanation.
11 ACTING PRESIDENT MEIER: Senator
12 Lack, an explanation has been requested.
13 SENATOR LACK: Thank you, Mr.
14 President.
15 This bill is simple. It would
16 provide that where a notice of claim to a
17 municipality is late, an application can be made
18 to a District Court, a City Court or the New
19 York City Civil Court in addition to what's
20 currently permitted, Supreme Court or County
21 Court.
22 ACTING PRESIDENT MEIER: Read the
23 last section.
24 THE SECRETARY: Section 2. This
25 act shall take effect immediately.
4329
1 ACTING PRESIDENT MEIER: Call the
2 roll.
3 (The Secretary called the roll.)
4 THE SECRETARY: Ayes 60.
5 ACTING PRESIDENT MEIER: The bill
6 is passed.
7 ACTING PRESIDENT MEIER: Senator
8 Bruno.
9 SENATOR BRUNO: Mr. President,
10 can we at this time return to motions and
11 resolutions on the calendar.
12 ACTING PRESIDENT MEIER: We will
13 return to the order of business, motions and
14 resolutions.
15 SENATOR BRUNO: Can we move to
16 adopt the Resolution Calendar.
17 ACTING PRESIDENT MEIER: There is
18 a request by the sponsor to open up Resolution
19 1401 to all members of the Senate.
20 Senator Levy -- on the motion to
21 adopt the Resolution Calendar, all those in
22 favor signify by saying aye.
23 (Response of "Aye".)
24 Opposed, nay.
25 (There was no response.)
4330
1 The Resolution Calendar is
2 adopted.
3 Senator Skelos.
4 SENATOR SKELOS: Senator Maltese
5 would like to open sponsorship of Resolution
6 1502 honoring the Italian Congressional Medal of
7 Honor recipients and other Americans of Italian
8 descent. Unless there's an objection, we'll put
9 all members on it. If somebody would not like
10 to sponsor the resolution, they should notify
11 the desk.
12 ACTING PRESIDENT MEIER: Without
13 objection, so ordered.
14 SENATOR SKELOS: Is there any
15 housekeeping at the desk?
16 ACTING PRESIDENT MEIER: No,
17 there's no housekeeping at the desk.
18 SENATOR SKELOS: There being no
19 further business, I move we adjourn until
20 Thursday, May 29th, at 10:00 a.m.
21 ACTING PRESIDENT MEIER: There
22 being no further -- on the motion of Senator
23 Skelos to adjourn, all in favor aye -- the
24 Senate is adjourned until 10:00 o'clock -- the
25 Senate is adjourned until 10:00 o'clock,
4331
1 Wednesday, May 29th -- Thursday, May 29th.
2 (Whereupon, at 5:37 p.m., the
3 Senate adjourned.)
4
5
6
7
8
9
10