Regular Session - February 23, 1998

                                                              774

         1

         2

         3

         4

         5

         6

         7

         8

         9                 ALBANY,  NEW YORK

        10                 February 23, 1998

        11                     3:05 p.m.

        12

        13

        14                 REGULAR SESSION

        15

        16

        17

        18       LT. GOVERNOR BETSY McCAUGHEY ROSS, President

        19       STEPHEN M. BOGGESS, Secretary

        20

        21

        22

        23

        24

        25







                                                          775

         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

         4       me in the Pledge of Allegiance.

         5                      (The assemblage repeated the

         6       Pledge of Allegiance to the Flag.)

         7                      The invocation today will be

         8       given by Pastor Selwyn Wilkinson from Our Lady

         9       of Lourdes Spiritual Baptist Church in

        10       Brooklyn.

        11                      Pastor Wilkinson.

        12                      PASTOR SELWYN WILKINSON:  On

        13       behalf of the Spiritual Baptists, the islands

        14       of Trinidad and Tobago, my prayers of

        15       invocation to you:  Our Father which art in

        16       heaven, hallowed be Thy name.  Thy kingdom

        17       come; Thy will be done on earth as it is in

        18       heaven.  Give us this day our daily bread and

        19       forgive us our trespasses as we forgive those

        20       that trespass against us and lead us not into

        21       temptation, but deliver us from all evil, for

        22       Thine is the kingdom and the power and the

        23       glory forever and ever.  Amen.

        24                      Almighty God, Who hast given us

        25       grace at this time to make our supplications







                                                          776

         1       unto You, that You have promised that where

         2       two or three have gathered together, You are

         3       in the midst, and that is to bless.  Bless

         4       this assembly, almighty God, our chairmen, the

         5       decisions they have to make.  Grant them,

         6       almighty God, and guide them, O great Jehovah,

         7       guide them that they will go in the right

         8       direction that will be prosperous to all that

         9       dwell within the state of New York.  I ask

        10       You, almighty God, to send Your blessings.

        11       Come, O Spirit, come, Spirit divine, attend

        12       our prayers and make them as Thine own.

        13       Descend with all Thy gracious powers.  O come,

        14       sweet Spirit, come.  Come to bless, almighty

        15       God.  Guide them, O great Jehovah.  Guide us,

        16       good almighty God, we thank Thee for Senator

        17       Markowitz who have invited us, and may the

        18       assembly, almighty God, Conservative,

        19       Republican or Democrat, whatever they have to

        20       do, let it be precious in your sight, almighty

        21       God, for the benefit of this nation.  Bless

        22       our President, almighty God, and our

        23       Governor.  This, I ask in no other name but in

        24       Jesus' almighty name.

        25                      The Lord is my shepherd.  I







                                                          777

         1       shall not want. He maketh me to lie down in

         2       green pastures and beside the still waters and

         3       restores my soul.  He leads me in the paths of

         4       righteousness for his name's sake.  Yea,

         5       though I walk through the valley of the shadow

         6       of death, I shall fear no evil, for God gives

         7       me Thy rod and Thy staff, they comfort me.

         8       Thou preparest a table before me in the

         9       presence of my enemies.  Thou anointest my

        10       head with oil, that goodness and mercy shall

        11       follow us all the days of our life and we

        12       shall dwell in the house of the Lord forever.

        13                      Thank you, dear Jesus.  In

        14       Jesus' almighty name, in Jesus almighty.

        15                      THE PRESIDENT:  Amen.

        16                      The reading of the Journal,

        17       please.

        18                      THE SECRETARY:  In Senate,

        19       Friday, February 20th. The Senate met pursuant

        20       to adjournment.  The Journal of Thursday,

        21       February 19th, was read and approved.  On

        22       motion, Senate adjourned.

        23                      THE PRESIDENT:  Without

        24       objection, the Journal stands approved as

        25       read.







                                                          778

         1                      Presentation of petitions.

         2                      Messages from the Assembly.

         3                      Messages from the Governor.

         4                      Reports of standing

         5       committees.

         6                      Secretary will read.

         7                      THE SECRETARY:  Senator

         8       Leibell, from the Committee on Housing,

         9       Construction and Community Development,

        10       reports:

        11                      Senate Print 6152, by Senator

        12       Leibell, an act to amend the Private Housing

        13       Finance Law;

        14                      6153, by Senator Leibell, an

        15       act to amend the Private Housing Finance Law;

        16                      6154, by Senator Leibell, an

        17       act to amend the Private Housing Finance Law.

        18                      Senator Velella, from the

        19       Committee on Insurance, reports:

        20                      Senate Print 2550-B, by Senator

        21       Johnson, an act to amend the Insurance Law and

        22       the Vehicle and Traffic Law;

        23                      2684-B, by Senator Johnson, an

        24       act to amend the Insurance Law;

        25                      3883, by Senator Velella, an







                                                          779

         1       act to repeal Section 4227 of the Insurance

         2       Law, and

         3                      4055, by Senator Saland, an act

         4       to repeal Section 334 of the Insurance Law.

         5                      All bills directly for third

         6       reading.

         7                      THE PRESIDENT:  Without

         8       objection, all bills directly to third

         9       reading.

        10                      Reports of select committees.

        11                      Communications and reports from

        12       state officers.

        13                      Motions and resolutions.

        14                      Senator Marcellino.

        15                      SENATOR MARCELLINO:  Madam

        16       President, I move the following bill be

        17       discharged from the respective committee and

        18       be recommitted with instructions to strike the

        19       enacting clause: That would be Senate Print

        20       Number 3279.

        21                      ACTING PRESIDENT HOLLAND:

        22       Without objection, the enacting clause will be

        23       stricken.

        24                      SENATOR MARCELLINO:  Mr.

        25       President, amendments are offered to the







                                                          780

         1       following Third Reading Calendar bills:

         2                      Sponsored by Senator Volker,

         3       page number 9, Calendar Number 143, Senate

         4       Print Number 1467-A;

         5                      Sponsored by Senator Johnson,

         6       page 12, Calendar Number 187, Senate Print

         7       Number 4834-C;

         8                      By Senator Skelos, page number

         9       12, Calendar Number 193, Senate Print Number

        10       1983-A;

        11                      Sponsored by Senator Maziarz,

        12       page number 13, Calendar Number 194, Senate

        13       Print Number 5083;

        14                      By Senator Seward, page number

        15       15, Calendar Number 218, Senate Print Number

        16       3267; and finally

        17                      By Senator Kuhl, page number

        18       14, Calendar Number 213, Senate Print Number

        19       3157- A, and, Mr. President, I now move that

        20       these bills retain their place on the order of

        21       third reading.

        22                      ACTING PRESIDENT HOLLAND:

        23       Amendments are received.  The bills will

        24       retain their place on the Third Reading

        25       Calendar.







                                                          781

         1                      SENATOR SKELOS:  Mr.

         2       President.

         3                      ACTING PRESIDENT HOLLAND:

         4       Senator Skelos.

         5                      SENATOR SKELOS:  Before we go

         6       on with the resolutions, I just want to point

         7       out to the members that there are new mikes on

         8       the desks that are extremely sensitive, and

         9       you probably received a memo from the

        10       Secretary of the Senate, Steve Boggess, that

        11       mentions this, but I also want to point out

        12       that one of the mikes which happens to be on

        13       Senator Stachowski's desk right now is on, on

        14       a permanent basis, until it can be fixed. So,

        15       for example, you could be sitting in the

        16       fireplace discussing something with Senator

        17       Dollinger and it may be heard over the squawk

        18       boxes, so again, these mikes are very

        19       sensitive, and we should just recognize that.

        20                      ACTING PRESIDENT HOLLAND:

        21       Watch what you say.

        22                      SENATOR SKELOS:  If we could

        23       take up at this time a resolution by -

        24       privileged resolution by Senator Johnson.  I'd

        25       ask that it be read in its entirety and move







                                                          782

         1       for its immediate adoption.

         2                      ACTING PRESIDENT HOLLAND:

         3       Secretary will read.

         4                      THE SECRETARY:  By Senator

         5       Johnson, Legislative Resolution, recognizing

         6       the F.E.G.S. Suffolk Vocational Center, Bailey

         7       House West-South Oaks, upon the occasion of

         8       commemorating the 20th Anniversary of New York

         9       State's Displaced Homemaker Program.

        10                      ACTING PRESIDENT HOLLAND:  The

        11       question is on the resolution.

        12                      THE SECRETARY:  WHEREAS -

        13                      ACTING PRESIDENT HOLLAND:  I'm

        14       sorry.

        15                      THE SECRETARY:  WHEREAS,

        16       organizations which serve the interests of the

        17       people of this Empire State merit the

        18       commendation of this legislative body;

        19                      New York State's Displaced

        20       Homemaker Program has served the interests of

        21       the people of New York State for 20 years;

        22                      This legislative body is justly

        23       proud to recognize F.E.G.S. Suffolk Vocational

        24       Center, Bailey House, West-South Oaks of

        25       Amityville, New York, upon the occasion of







                                                          783

         1       commemorating the 20th Anniversary of New York

         2       State's Displaced Homemaker Program, a program

         3       that has been recognized across the United

         4       States for its innovative services for

         5       individuals into permanent paid employment;

         6                      F.E.G.S. Suffolk Vocational is

         7       under the competent guidance of Fay

         8       Sutherland, a skilled and inspirational

         9       director whose illustrious reputation is

        10       renowned throughout Suffolk County;

        11                      Established in 1978, the New

        12       York State Department of Labor's Displaced

        13       Homemaker Program is one of the oldest, most

        14       successful state funded resources of its kind.

        15       The 24 multi-purpose centers offer a caring

        16       holistic approach, multiple services and a

        17       community of support aimed at addressing the

        18       complex problems faced by displaced homemakers

        19       entering or re-entering the paid job market;

        20                      The multi-purpose Displaced

        21       Homemaker Centers provide a wide range of

        22       services designed to help a displaced

        23       homemaker overcome multiple barriers and reach

        24       economic and personal self-sufficiency.  The

        25       centers provide "job readiness" services that







                                                          784

         1       give displaced homemakers the opportunity to

         2       make informed job and career decisions and

         3       learn life planning skills.  In addition, it

         4       builds strong relationships with employers and

         5       educational institutions that result in

         6       training programs that aid economic

         7       development efforts in local communities;

         8                      Since 1978, over 140,000

         9       individuals have received employment-related

        10       services.  Over 28,000 homemakers have entered

        11       the labor force while another almost 26,000

        12       went on for further education or training;

        13                      It is estimated that 1,962

        14       homemakers who entered employment in the

        15       1995-96 program year contributed some $16

        16       million to the state's economy through their

        17       wages alone.  Since wages generate spending in

        18       a community, the total economic impact on the

        19       state is estimated at over $42 million;

        20                      Through its sustained

        21       commitment to the preservation and enhancement

        22       of human dignity New York State's Displaced

        23       Homemaker Program has so unselfishly advanced

        24       that spirit of united purpose and shared

        25       concern which is the unalterable manifestation







                                                          785

         1       of our American experience;

         2                      NOW, THEREFORE BE IT RESOLVED

         3       that this legislative body pause in its

         4       deliberations to commemorate the 20th

         5       Anniversary of New York State's Displaced

         6       Homemaker Program, fully confident that such

         7       procedure mirrors our shared commitment to

         8       preserve, to enhance and to yet effect that

         9       patrimony of freedom which is our American

        10       heritage; and

        11                      BE IT FURTHER RESOLVED that a

        12       copy of this resolution, suitably engrossed,

        13       be transmitted to Fay Sutherland, Director

        14       F.E.G.S., Suffolk Vocational Center, Bailey

        15       House West-South Oaks.

        16                      SENATOR JOHNSON:  Mr.

        17       President.

        18                      ACTING PRESIDENT HOLLAND:

        19       Senator Johnson.

        20                      SENATOR JOHNSON:  Mr.

        21       President, I'm proud to say that 20 years ago

        22       I played a role in establishing this first

        23       Displaced Homemaker Program.

        24                      We are honored today to have

        25       the resolution read on this anniversary and







                                                          786

         1       have Miss Fay Sutherland, who serves many

         2       people in my district, here today to represent

         3       the group.  Thank you, Miss Sutherland, for

         4       being here.

         5                      ACTING PRESIDENT HOLLAND:

         6       Senator Johnson, would you like to open up the

         7       resolution for co-sponsorship?

         8                      SENATOR JOHNSON:  Yes, of

         9       course, Mr. President, and I'd like

        10       recognition of Miss Sutherland, who was

        11       standing as everyone noticed that she was here

        12       and we welcome her on this occasion.

        13                      Thank you.

        14                      ACTING PRESIDENT HOLLAND:  The

        15       Senate recognizes Mrs. Sutherland and

        16       congratulates you on your activities here.

        17                      (Applause)

        18                      The question -- let me do the

        19       resolution, Senator Skelos.

        20                      The question is on the

        21       resolution. All in favor say aye.

        22                      (Response of "Aye.")

        23                      Opposed say no.

        24                      (There was no response. )

        25                      The resolution is carried.







                                                          787

         1       Everyone will appear on the resolution unless

         2       they so signify.

         3                      Senator Skelos.

         4                      SENATOR SKELOS:  Mr. President,

         5       I believe there is a privileged resolution at

         6       the desk sponsored by Senator Holland.

         7                      ACTING PRESIDENT HOLLAND:  Good

         8       resolution.

         9                      The Secretary will read.

        10                      SENATOR SKELOS:  I think we're

        11       just going to ask that the title be read on

        12       this one -

        13                      ACTING PRESIDENT HOLLAND:

        14       Please.

        15                      SENATOR SKELOS: -- and move for

        16       its immediate adoption.

        17                      THE SECRETARY:  By Senator

        18       Holland, Legislative Resolution paying tribute

        19       to the Rockland County citizens who

        20       volunteered their time and effort to help the

        21       storm victims in the North Country, to

        22       recognize on February 24th, 1998.

        23                      ACTING PRESIDENT HOLLAND:  The

        24       question is on the resolution.  All in favor

        25       signify by saying aye.







                                                          788

         1                      (Response of "Aye.")

         2                      Opposed say no.

         3                      (There was no response. )

         4                      The resolution is adopted.

         5                      Senator Kuhl.

         6                      SENATOR KUHL:  Mr. President,

         7       could we take up the non-controversial

         8       calendar, please.

         9                      ACTING PRESIDENT HOLLAND:  The

        10       Secretary will read the non-controversial

        11       calendar, please.

        12                      THE SECRETARY:  Calendar Number

        13       5, by Senator Libous, Senate Print 5053, an

        14       act to repeal paragraph 3 of subdivision (a)

        15       of Section 9.05 of the Mental Hygiene Law.

        16                      SENATOR PATERSON: Lay aside.

        17                      ACTING PRESIDENT HOLLAND:  Lay

        18       aside.

        19                      THE SECRETARY:  Calendar Number

        20       32, by Senator Alesi, Senate Print 4012-A, an

        21       act to amend the Insurance Law.

        22                      ACTING PRESIDENT HOLLAND:  Read

        23       the last section.

        24                      THE SECRETARY:  Section 14.

        25       This act shall take effect immediately.







                                                          789

         1                      ACTING PRESIDENT HOLLAND:  Call

         2       the roll.

         3                      (The Secretary called the

         4       roll. )

         5                      THE SECRETARY:  Ayes 50.

         6                      ACTING PRESIDENT HOLLAND:  The

         7       bill is passed.

         8                      THE SECRETARY:  Calendar Number

         9       95, by Senator Volker, Senate Print 1708, an

        10       act to amend the Criminal Procedure Law, in

        11       relation to the preclusion of evidence.

        12                      ACTING PRESIDENT HOLLAND:  Read

        13       the last section.

        14                      THE SECRETARY:  Section 3.

        15       This act shall take effect immediately.

        16                      ACTING PRESIDENT HOLLAND:  Call

        17       the roll.

        18                      (The Secretary called the

        19       roll. )

        20                      THE SECRETARY:  Ayes 50.

        21                      ACTING PRESIDENT HOLLAND:  The

        22       bill is passed.

        23                      THE SECRETARY:  Calendar Number

        24       99, by Senator Skelos, Senate Print 3503, an

        25       act to amend the Criminal Procedure Law.







                                                          790

         1                      ACTING PRESIDENT HOLLAND:  Read

         2       the last section.

         3                      THE SECRETARY:  Section 5.

         4       This act shall take effect on the first day of

         5       November.

         6                      ACTING PRESIDENT HOLLAND:  Call

         7       the roll.

         8                      (The Secretary called the

         9       roll. )

        10                      THE SECRETARY:  Ayes 51.

        11                      ACTING PRESIDENT HOLLAND:  The

        12       bill is passed.

        13                      THE SECRETARY:  Calendar Number

        14       123, by Senator Holland, Senate Print 5918, an

        15       act to amend the Vehicle and Traffic Law, in

        16       relation to exempting vehicles.

        17                      ACTING PRESIDENT HOLLAND:  Read

        18       the last section.

        19                      THE SECRETARY:  Section 2.

        20       This act shall take effect immediately.

        21                      ACTING PRESIDENT HOLLAND:  Call

        22       the roll.

        23                      (The Secretary called the

        24       roll.)

        25                      THE SECRETARY:  Ayes 51.







                                                          791

         1                      ACTING PRESIDENT HOLLAND:  The

         2       bill is passed.

         3                      THE SECRETARY:  Calendar Number

         4       124, by Senator Present, Senate Print 2536, an

         5       act to amend the Economic Development Law, in

         6       relation to directing a rural agribusiness.

         7                      ACTING PRESIDENT HOLLAND:  Read

         8       the last section.

         9                      THE SECRETARY:  Section 2.

        10       This act shall take effect immediately.

        11                      ACTING PRESIDENT HOLLAND:  Call

        12       the roll.

        13                      (The Secretary called the

        14       roll.)

        15                      THE SECRETARY:  Ayes 51.

        16                      ACTING PRESIDENT HOLLAND:  The

        17       bill is passed.

        18                      THE SECRETARY:  Calendar Number

        19       128, by Senator Seward, Senate Print 1182, an

        20       act to amend the County Law, in relation to

        21       establishing county communications.

        22                      ACTING PRESIDENT HOLLAND:  Read

        23       the last section.

        24                      THE SECRETARY:  Section 2.

        25       This act shall take effect on the first day of







                                                          792

         1       January.

         2                      ACTING PRESIDENT HOLLAND:  Call

         3       the roll.

         4                      (The Secretary called the

         5       roll.)

         6                      THE SECRETARY:  Ayes 51.

         7                      ACTING PRESIDENT HOLLAND:  The

         8       bill is passed.

         9                      THE SECRETARY:  Calendar Number

        10       129, by Senator Cook, Senate Print 1419, an

        11       act to amend the Real Property Tax Law, in

        12       relation to statements of taxes by school

        13       districts.

        14                      ACTING PRESIDENT HOLLAND:  Read

        15       the last section.

        16                      THE SECRETARY:  Section 2.

        17       This act shall take effect immediately.

        18                      ACTING PRESIDENT HOLLAND:  Call

        19       the roll.

        20                      (The Secretary called the

        21       roll.)

        22                      THE SECRETARY:  Ayes 51.

        23                      ACTING PRESIDENT HOLLAND:  The

        24       bill is passed.

        25                      THE SECRETARY:  Calendar Number







                                                          793

         1       173, by Senator Trunzo, Senate Print 4277, an

         2       act to amend the Civil Service Law.

         3                      ACTING PRESIDENT HOLLAND:  Read

         4       the last section.

         5                      THE SECRETARY:  Section 2. This

         6       act shall take effect immediately.

         7                      ACTING PRESIDENT HOLLAND:  Call

         8       the roll.

         9                      (The Secretary called the

        10       roll.)

        11                      THE SECRETARY:  Ayes 51.

        12                      ACTING PRESIDENT HOLLAND:  The

        13       bill is passed.

        14                      THE SECRETARY:  Calendar Number

        15       184, by Senator Kuhl, Senate Print 546, an act

        16       to amend the Agriculture and Markets Law, in

        17       relation to producer referendum.

        18                      ACTING PRESIDENT HOLLAND:  Read

        19       the last section.

        20                      THE SECRETARY:  Section 4.

        21       This act shall take effect immediately.

        22                      ACTING PRESIDENT HOLLAND:  Call

        23       the roll.

        24                      (The Secretary called the

        25       roll.)







                                                          794

         1                      THE SECRETARY:  Ayes 51.

         2                      ACTING PRESIDENT HOLLAND:  The

         3       bill is passed.

         4                      THE SECRETARY:  Calendar Number

         5       208, by Senator Stafford, Senate Print 121, an

         6       act to amend the Environmental Conservation

         7       Law, in relation to non-hazardous municipal

         8       landfill.

         9                      ACTING PRESIDENT HOLLAND:  Read

        10       the last section.

        11                      THE SECRETARY:  Section 2.

        12       This act shall take effect immediately.

        13                      ACTING PRESIDENT HOLLAND:  Call

        14       the roll.

        15                      (The Secretary called the

        16       roll.)

        17                      THE SECRETARY:  Ayes 51.

        18                      ACTING PRESIDENT HOLLAND:  The

        19       bill is passed.

        20                      THE SECRETARY:  Calendar Number

        21       211, by Senator Marcellino, Senate Print 1388,

        22       an act to amend the Environmental Conservation

        23       Law, in relation to exemptions.

        24                      ACTING PRESIDENT HOLLAND:  Lay

        25       the bill aside.







                                                          795

         1                      THE SECRETARY:  Calendar Number

         2       222, by Senator Larkin, Senate Print 6001, an

         3       act to amend the Town Law, in relation to

         4       exempting the Good Will Fire District in

         5       Orange County.

         6                      ACTING PRESIDENT HOLLAND:  Read

         7       the last section.

         8                      THE SECRETARY:  Section 2.

         9       This act shall take effect immediately.

        10                      ACTING PRESIDENT HOLLAND:  Call

        11       the roll.

        12                      (The Secretary called the

        13       roll.)

        14                      THE SECRETARY:  Ayes 51.

        15                      ACTING PRESIDENT HOLLAND:  The

        16       bill is passed.

        17                      THE SECRETARY:  Calendar Number

        18       223, by Senator Volker, Senate Print 222, an

        19       act to amend the Penal Law and the Criminal

        20       Procedure Law.

        21                      ACTING PRESIDENT HOLLAND:  Lay

        22       the bill aside.

        23                      THE SECRETARY:  Calendar Number

        24       224, by Senator Goodman, Senate Print 424, an

        25       act to amend the Penal Law, in relation to







                                                          796

         1       consecutive terms.

         2                      ACTING PRESIDENT HOLLAND:  Read

         3       the last section.

         4                      THE SECRETARY:  Section 2.

         5                      ACTING PRESIDENT HOLLAND: Call

         6       the roll.  Last section.

         7                      THE SECRETARY:  Section 2.

         8       This act shall take effect on the first day of

         9       November.

        10                      ACTING PRESIDENT HOLLAND:  Call

        11       the roll.

        12                      (The Secretary called the

        13       roll.)

        14                      THE SECRETARY:  Ayes 51.

        15                      ACTING PRESIDENT HOLLAND:  The

        16       bill is passed.

        17                      THE SECRETARY:  Calendar Number

        18       235, by Senator Balboni, Senate Print 5950, an

        19       act to amend the Penal Law, in relation to

        20       consecutive sentences.

        21                      SENATOR KUHL:  Lay the bill

        22       aside for the day, please.

        23                      ACTING PRESIDENT HOLLAND: Lay

        24       the bill aside for the day.

        25                      SENATOR KUHL:  At the request







                                                          797

         1       of the sponsor.

         2                      ACTING PRESIDENT HOLLAND:  At

         3       the request of the sponsor.

         4                      Senator Kuhl, we'd like to read

         5       a couple of substitutions, if it's O.K. with

         6       you.

         7                      SENATOR KUHL:  If you'd like to

         8       do that, fine, let's do that.

         9                      ACTING PRESIDENT HOLLAND:

        10       Secretary will read.

        11                      THE SECRETARY:  Senator Leibell

        12       moves to discharge from the Committee on

        13       Housing, Construction and Community

        14       Development Assembly Print 8870, and

        15       substitute it for the identical Senate Print

        16       6042.

        17                      Senator Leibell moves to

        18       discharge from the Committee on Housing,

        19       Construction and Community Development

        20       Assembly Print 8869 and substitute it for the

        21       identical Senate Bill 6043.

        22                      And Senator Leibell moves to

        23       discharge from the Committee on Housing,

        24       Construction and Community Development

        25       Assembly Bill 8871 and substitute it for the







                                                          798

         1       identical Senate Bill 6044.

         2                      ACTING PRESIDENT HOLLAND:

         3       Without objection, the substitutions are

         4       ordered.

         5                      Senator Kuhl.

         6                      SENATOR KUHL:  Yes, Mr.

         7       President.  Can we now take up the

         8       controversial calendar, commencing with

         9       Calendar Number 5, by Senator Libous.

        10                      ACTING PRESIDENT HOLLAND:

        11       Secretary will read the controversial

        12       calendar, Calendar Number 5.

        13                      THE SECRETARY:  Calendar Number

        14       5, by Senator Libous, Senate Print 5053, an

        15       act to repeal paragraph 3 of subdivision (a)

        16       of Section 9.05 of the Mental Hygiene Law.

        17                      SENATOR PATERSON:  Explanation.

        18                      ACTING PRESIDENT HOLLAND:

        19       Explanation has been requested.

        20                      SENATOR LIBOUS:  Thank you, Mr.

        21       President.

        22                      Currently the Mental Hygiene

        23       Law, Section 9.05, prohibits physicians on the

        24       staff of a private hospital from authorizing

        25       the admission of a mentally ill patient to







                                                          799

         1       that hospital.

         2                      What this would do is remove

         3       that provision and allow a physician on staff

         4       to make such an examination of a mentally ill

         5       individual, and it would indeed provide

         6       admission for that patient.

         7                      ACTING PRESIDENT HOLLAND:  Read

         8       the last section.

         9                      Senator.

        10                      SENATOR MONTGOMERY:  Yes, thank

        11       you, Mr. President.

        12                      I would like to know if Senator

        13       Libous would yield for a couple of questions.

        14                      ACTING PRESIDENT HOLLAND:

        15       Senator Libous, would you yield?

        16                      SENATOR LIBOUS:  Certainly, Mr.

        17       President.

        18                      ACTING PRESIDENT HOLLAND:

        19       Senator yields, Senator Montgomery.

        20                      SENATOR MONTGOMERY:  Senator,

        21       you indicate that the existing law may serve

        22       as an obstacle to the timely admission of a

        23       mentally ill person.  Can you provide us any

        24       evidence of this happening; is there some

        25       indication that this is a real problem?







                                                          800

         1                      SENATOR LIBOUS:  Yes.  We've

         2       had a number of physicians who are presently

         3       at these institutions through their

         4       association over the years that have come to

         5       us and discussed the problem with admission

         6       because presently if they're on staff they

         7       have a patient who needs to be involuntarily

         8       admitted that they can't get them in and

         9       there's some problems that exist because

        10       they're on staff.

        11                      SENATOR MONTGOMERY:  If you

        12       would continue to yield, Senator Libous.

        13                      In what instances are the

        14       services to mentally ill patients being

        15       delayed and how long are these delays, do you

        16        -- is there an indication of how long the

        17       delays may be?

        18                      SENATOR LIBOUS:  I don't know

        19       how long the delays are.  I don't have that

        20       information, but what we're -- what we try to

        21       do here, Mr. President, is to make sure that

        22       someone who is in need of these services can

        23       get them as soon as possible, but I don't have

        24       any -- I'm sure that I could dig up those

        25       stories.







                                                          801

         1                      SENATOR MONTGOMERY:  Just a

         2       couple of other questions.  The -- you

         3       indicate that there is some difficulty or at

         4       least the physicians have indicated. Do you

         5       think that we need to take some more time to

         6       study this issue before or is this -- there an

         7       urgency that you think we need to move ahead

         8       with this particular legislation?

         9                      SENATOR LIBOUS:  Thank you.

        10       Mr. President, I do believe we need to move

        11       ahead.  I believe it did pass this body last

        12       year and, as I said, it has been something

        13       that we've discussed for a number of years and

        14       presently I know that on the books this

        15       provision doesn't apply to physicians who are

        16       staff members of a general hospital or a

        17       state-operated facility at the present time,

        18       so we feel that if it's something that doesn't

        19       pertain to those particular hospitals, it

        20       doesn't -- it shouldn't also pertain to some

        21       of the private hospitals.

        22                      SENATOR MONTGOMERY:  All

        23       right.  Thank you, Mr. President.  Briefly on

        24       the bill.

        25                      ACTING PRESIDENT HOLLAND:







                                                          802

         1       Senator Montgomery, on the bill.

         2                      SENATOR MONTGOMERY:  There are

         3       a couple of concerns that have been expressed

         4       by some of the -- the Mental Health

         5       Association and mental health advocates and

         6       they relate to the issue of the concern for an

         7       impartial designation of people who are being

         8       admitted and particularly in those instances

         9       where it might be possible for an institution

        10       to seek admission or to agree to having an

        11       admission because it helps to fill the beds of

        12       that particular facility, and it's -- this is

        13       the same problem that we have experienced with

        14       pre-school handicapped children or children

        15       with handicapping conditions.  Because many of

        16       the evaluating -- evaluators have a particular

        17       connection with a specific institution, we've

        18       found that in too many instances children were

        19       evaluated and placed in the same institutions

        20       that these evaluators were connected with and

        21       so that same problem is -- I'm afraid might be

        22       happening vis-a-vis relaxing this particular

        23       provision.

        24                      So I just wanted to raise this

        25       with you, Senator, that there is a concern and







                                                          803

         1       we certainly would not want to find ourselves

         2       in a situation where we're having people

         3       placed possibly inappropriately based on the

         4       interest of an institution rather than the

         5       interest of an individual.

         6                      Thank you.

         7                      ACTING PRESIDENT HOLLAND:

         8       Senator Paterson.

         9                      SENATOR PATERSON:  Thank you

        10       very much, Mr. President.

        11                      If Senator Libous would yield

        12       for a question.

        13                      ACTING PRESIDENT HOLLAND:

        14       Senator, do you yield?

        15                      SENATOR LIBOUS:  I would be

        16       honored.

        17                      ACTING PRESIDENT HOLLAND:

        18       Senator yields.

        19                      SENATOR PATERSON:  Senator

        20       Libous, last year I came to this chamber

        21       opposed to this legislation and was persuaded

        22       by the argument that you offered at that

        23       particular time and since the legislation has

        24       actually not passed, I just wanted to offer a

        25       suggestion to you, something I thought perhaps







                                                          804

         1       might alleviate some of the concerns of the

         2       Mental Health Association and some of the

         3       advocates who have voiced their concerns to

         4       us, well articulated by Senator Montgomery.

         5                      This is simply a civil

         6       commitment case under Section 9 of the Mental

         7       Health -- I believe it's Section 9.43 in which

         8       two physicians sign the certificate enabling

         9       the institution to take control over the

        10       individual who's unable to distinguish to the

        11       extent that they could care for themselves.

        12       The concern that Senator Montgomery raised is

        13       that, if the particular physician has a strong

        14       fiduciary responsibility or proprietary

        15       relationship with the institution, that even

        16       if the physician is trying to be fair that

        17       there is certainly an implicit understanding

        18       that the physician might, because of other

        19       factors, be persuaded to feel that the patient

        20       should be committed.

        21                      What I'm thinking is rather

        22       than attack the problem as the law does now by

        23       saying that no physician can sign the

        24       statement unless they are not -- they don't

        25       have a financial relationship with the







                                                          805

         1       hospital, would it be better for two

         2       physicians to sign the statement anyway, to

         3       draft the legislation so that, as long as one

         4       of the two physicians, provides a certificate

         5       that he has no interested, financial or

         6       otherwise in the hospital, then it would be

         7       understood that this would be an adequate

         8       commitment.

         9                      So my question is, would you

        10       consider rather than just waiving what is

        11       right now the obligation under the law, simply

        12       turning it around and stating that as long as

        13       one of the two physicians is unrelated

        14       financially to the institution that the

        15       certificate with both signatures would be

        16       valid?

        17                      SENATOR LIBOUS:  Mr. President,

        18       Senator Paterson raises a good point and I'd

        19       like to address that.

        20                      I believe, Senator, that if you

        21       look at what we're asking for in the

        22       legislation, this would simply allow a

        23       physician to admit a patient for a 15-day

        24       period so that they can make that

        25       determination and get help from someone or







                                                          806

         1       force someone who has a mental illness and we

         2       have presently in place organizations such as

         3       the state Mental Hygiene Legal Services or the

         4       state Commission on Quality Care which exists

         5       to make sure that the safeguards that are in

         6       place, and we also have the Patient's Bill of

         7       Rights, which guarantees that such patients

         8       will be fully informed about their treatment

         9       and their options that are open and available

        10       to them.

        11                      The other point that I'd also

        12       like to make that I think answers Senator

        13       Paterson's concern, Mr. President, is finally

        14       insurance companies pay close attention,

        15       particularly nowadays and won't authorize

        16       coverage of in-patient care if it isn't

        17       warranted, so I believe, Mr. President, that

        18       there are a number of safeguards in place and

        19       particularly with, as I mentioned, the

        20       Commission on Quality Care which is something

        21       that we have some jurisdiction and control

        22       over, and that if there was a situation that

        23       did exist, where you know, people were being

        24       placed arbitrarily into hospitals and that one

        25       of those, that physician might have some







                                                          807

         1       interest in the hospital, that would have come

         2       to our attention quite quickly, and I think

         3       that would be addressed.

         4                      But it's a good question.

         5       Those safeguards have to be watched for.  We

         6       need to make sure that, as we pass a number of

         7       pieces of legislation in this house, that we

         8       are cautious in providing proper treatment to

         9       individuals who need it on a basis that is

        10       expedient but at the same time we have to make

        11       sure that we are not helping others to

        12       profit.

        13                      ACTING PRESIDENT HOLLAND:  Read

        14       the last section.

        15                      THE SECRETARY:  Section 2.

        16       This act shall take effect immediately.

        17                      ACTING PRESIDENT HOLLAND:  Call

        18       the roll.

        19                      (The Secretary called the

        20       roll. )

        21                      THE SECRETARY:  Those recorded

        22       in the negative on Calendar Number 5 are

        23       Senators Abate, Leichter, Montgomery and

        24       Paterson. Ayes 50, nays 4.

        25                      ACTING PRESIDENT HOLLAND:  The







                                                          808

         1       bill is passed.

         2                      Secretary will read.

         3                      THE SECRETARY:  Calendar Number

         4       211, by Senator Marcellino, Senate Print 1388,

         5       an act to amend the Environmental Conservation

         6       Law, in relation to exemption for hazardous

         7       packaging.

         8                      ACTING PRESIDENT HOLLAND:

         9       Senator Oppenheimer.

        10                      SENATOR OPPENHEIMER:  I'm

        11       sorry.  Were we up to Calendar Number 211?

        12                      ACTING PRESIDENT HOLLAND:

        13       That's correct.

        14                      SENATOR OPPENHEIMER:  Could I

        15       have an explanation, please, Senator

        16       Marcellino?

        17                      ACTING PRESIDENT HOLLAND:

        18       Explanation has been requested.

        19                      SENATOR MARCELLINO:

        20       Certainly.  Mr. President, thank you.

        21                      Mr. President, the idea of

        22       recycling and packaging of products that are

        23       used for the prevention of tampering or damage

        24       until the product reaches the consumer is a

        25       poor industry.  Packaging also presents many







                                                          809

         1       problems because, after the product reaches

         2       the consumer most packaging ends up in the

         3       solid waste stream.  Therefore, we must have

         4       effective programs in place to deal with

         5       packaging the waste.

         6                      We also must have a means of

         7       encouraging the recycling industry, which this

         8       bill seeks to do.  What this bill seeks to do

         9       is to allow certain exemptions to occur to the

        10       law which is in response to the -- an

        11       organization called CONEG, which is an acronym

        12       for the Coalition of Northeastern Governors.

        13       These people have requested that these

        14       exemptions be permitted and that they be

        15       extended.

        16                      They exist in law now except

        17       there is some confusion in the law as to how

        18       many times these exemptions can be granted.

        19       Certain federal legislation that exists

        20       requires certain exemptions.  Certain

        21       packaging rules, these exemptions were made in

        22       compliance with -- in accordance with the

        23       federal legislation.  The federal legislation

        24       still exists, no change there.

        25                      It would seem logical to allow







                                                          810

         1       these exemptions to move on and to still

         2       continue to exist.  This bill has been

         3       introduced twice.  In 1996 it passed 56 to

         4       nothing; in 1997 it passed 58 to nothing.

         5                      ACTING PRESIDENT HOLLAND:

         6       Senator Oppenheimer.

         7                      SENATOR OPPENHEIMER:  Would

         8       Senator Marcellino yield for a couple of

         9       questions, please?

        10                      SENATOR MARCELLINO:  Sure.

        11                      ACTING PRESIDENT HOLLAND:  He

        12       does.

        13                      SENATOR OPPENHEIMER:  I have a

        14       couple of questions on this, because I don't

        15       understand how the law would pass in 1990 and

        16       here we are seven, eight years later, and I

        17       can't understand why -- why we haven't found

        18       alternatives to this packaging because we're

        19       many years later, and it was supposed to be

        20       found by now; so could you explain that.

        21                      SENATOR MARCELLINO:  Senator,

        22       the alternatives that you're talking about.  I

        23       know what you're dealing with. You're dealing

        24       with substances that are put into the

        25       packaging as a result of their being







                                                          811

         1       recycled.  Any toxic substance, any heavy

         2       metals that might be present in this packaging

         3       comes from the fact that it is a recycled

         4       substance.  This is not newly added material.

         5       This is not something that would be put on

         6       brand new packaging or brand new stuff.  This

         7       is stuff that would enter as a part of it

         8       being recycled perfectly.  For example, this

         9       piece of paper has ink on it.  The ink may

        10       have some substances present in it that may

        11       add to the waste stream.

        12                      We're concerned -- that's what

        13       the exemption deals with.  We're trying to

        14       force the recycling industry, that is a

        15       marketplace-driven industry, and it is a very

        16       difficult one. There are days and there are

        17       months when you get paid to take certain

        18       material, and they'll buy it from you.  There

        19       are times when a municipality or an agent

        20       would have to pay to get it taken away from -

        21       get it removed.  It is not a simple

        22       situation.  It is not an easy industry to move

        23       ahead.  The technology is not moving as

        24       quickly as anyone would like.

        25                      However, the problem still







                                                          812

         1       exists. We need recycling.  We want them to be

         2       recycled.  We're trying to encourage

         3       recycling.

         4                      SENATOR OPPENHEIMER:  I cannot

         5       hear.  There is an awful lot of conversation

         6       going on, and I'm trying very hard to focus,

         7       but it's -- it's just impossible.

         8                      ACTING PRESIDENT HOLLAND:

         9       Could we have some quiet in the chamber,

        10       please.  I don't know whether it's the new

        11       mikes or not, because it's more difficult to

        12       hear.

        13                      SENATOR OPPENHEIMER:  It may be

        14       the new mikes, but I think I got about half of

        15       what you said, Senator Marcellino.

        16                      SENATOR MARCELLINO:  You've

        17       heard more than I said then.

        18                      SENATOR OPPENHEIMER:  What?

        19                      SENATOR MARCELLINO:  You've

        20       heard more than I said.

        21                      SENATOR OPPENHEIMER:  Well, if

        22       these exemptions, these two-year exemptions

        23       are necessary because the technology hasn't

        24       come along sufficiently, I mean I understand

        25       we don't want this in our -- in our sites







                                                          813

         1       because we certainly want to try and protect

         2       our earth and water, but I have trouble

         3       understanding why they are being recycled

         4       anyway if they have contain lead, cadmium,

         5       mercury, chromium, but the question I have at

         6       this point is, we've been -- we've been giving

         7       two-year exemptions. You come in each year for

         8       a single two-year exemption.

         9                      This permits multiple two-year

        10       exemptions.  I don't understand why we have to

        11       increase the time.  Why are they coming back

        12       every two years for the exemption?

        13                      SENATOR MARCELLINO:  We're not

        14       increasing the time, Senator.  We're keeping

        15       the same exemption with the change in the

        16       language which says up to two years, so it

        17       could be shorter if necessary, if the

        18       situation changes.

        19                      New York State's representative

        20       to CONEG has assured us that participating

        21       states will -- all believe that this general

        22       exemption to aid recycling will end in the

        23       year 2000.

        24                      You seem to be having a

        25       problem. I don't know whether I'm talking loud







                                                          814

         1       enough or what.

         2                      SENATOR OPPENHEIMER:  I'm

         3       trying to hear as best I can, but these new

         4       mikes don't seem to be doing much of a job

         5       here.

         6                      I thought that the applicant -

         7       through you, Mr. President, I thought the

         8       applicant would come in for more than a single

         9       two-year exemption; they could come in for a

        10       multiple of two-year exemptions.

        11                      SENATOR MARCELLINO:  The

        12       current law, Senator, we believe is somewhat

        13       ambiguous on that situation.  As I said

        14       earlier, the federal law requires the changes

        15       that we have recycling and all of that to go

        16       on.  It requires it.  That law still exists.

        17       Those problems still exist.  We see no reason

        18       and there's nothing relative to changing in

        19       the system or in the recycling industry to

        20       warrant us to just do away with that without

        21       effectively or negatively impacting the whole

        22       recycling industry as well.

        23                      It is, as I said earlier, a

        24       difficult industry at best.  It is market

        25       driven; it is not being driven very well







                                                          815

         1       because the marketplace is, quite frankly,

         2       saturated with an awful lot of material, so

         3       we're trying to help this industry, by

         4       encouraging them and encouraging business to

         5       use recycled materials rather than to go and

         6       say, We won't use recycled materials at all.

         7       We will seek new materials.  That means virgin

         8       wood.  That means cutting down more forests.

         9       That means generating new paper products.

        10       We're trying to allow them to use the recycled

        11       products as much as we possibly can.

        12                      Nothing in this legislation

        13       would provide a health hazard to any user of

        14       the packaged material, so that if you picked

        15       up an object that -- that contains this

        16       material, there is no health hazard to you as

        17       an individual consumer or anyone else.  We're

        18       trying to again deal with what we consider to

        19       be ambiguities in the federal law and in the

        20       state law.  If the federal law still exists,

        21       then the state law should allow for some

        22       standard as long as that federal law is

        23       unchanged, as long as conditions are

        24       unchanged.

        25                      SENATOR OPPENHEIMER:  O.K. If







                                                          816

         1       the Senator would yield for another question?

         2                      SENATOR MARCELLINO:  Sure.

         3                      ACTING PRESIDENT HOLLAND:

         4       Senator yields.

         5                      SENATOR OPPENHEIMER:  I can

         6       understand your point and I'm willing to

         7       accept the recycling aspect of it, but I don't

         8       understand why a new exception was added at

         9       this time and that new exception which wasn't

        10       in the law for the last seven, eight years is

        11       for radioactivity -- radioactive packaging.

        12       That I don't understand, if it wasn't there

        13       for the last seven, eight years, why is it now

        14       in the law, in this act proposed?

        15                      SENATOR MARCELLINO:  You're

        16       absolutely right, Senator. That's a new

        17       exemption, but those things don't end up in

        18       any waste stream.  We don't dump them into

        19       municipal landfills.  They don't go into

        20       anything like that.  They're very carefully

        21       dealt with and they're carefully removed and

        22       packaged in their own methodology. They're not

        23       put into your typical waste stream.  They

        24       don't hit municipal landfills and the like.

        25                      SENATOR OPPENHEIMER:  Can you







                                                          817

         1       tell me -- through you, Mr. President, can you

         2       tell me why that wasn't -- why that is now

         3       necessary in this law when it wasn't in the

         4       last law, the one from 1990?

         5                      SENATOR MARCELLINO:  This had

         6       been -- this particular exemption, Senator,

         7       I'm sure -- I just wanted to check with

         8       counsel, but this particular exemption has

         9       been in the last two bills that passed both

        10       the last two years.  This is not new,

        11       Senator.  This has been in the bill for the

        12       last two years.

        13                      SENATOR OPPENHEIMER:  So, not

        14       new.

        15                      SENATOR MARCELLINO:  That's why

        16       I wanted to check, Senator.

        17                      SENATOR OPPENHEIMER:  Also, it

        18       was pointed out to me that in paragraph 4, as

        19       opposed to paragraph 3, these are not

        20       recyclables.  Paragraph 4 is not recyclable

        21       material, so the -

        22                      SENATOR MARCELLINO:  I'm sorry,

        23       I did not -- I didn't think you asked a

        24       question, quite frankly.

        25                      SENATOR OPPENHEIMER:  The







                                                          818

         1       items, the new paragraph 4, these are not

         2       recyclables that are mentioned in paragraph

         3       4.

         4                      SENATOR MARCELLINO:  The new

         5       exemptions in paragraph 4 are not in paragraph

         6       4; that's what I heard.

         7                      SENATOR OPPENHEIMER:  The new

         8       exemptions in paragraph 4 are not

         9       recyclables.

        10                      SENATOR MARCELLINO:  Is that my

        11       understanding?

        12                      SENATOR OPPENHEIMER:  They are

        13       not part of our recycling, paragraph 4.

        14                      SENATOR MARCELLINO:  You're

        15       saying those things are not recyclables, but

        16       they relate to a different exemption.

        17                      SENATOR OPPENHEIMER:  Well, I

        18       can -- through you, Mr. President, I can buy

        19       into your recycling argument, but now here I

        20       have a full paragraph which has nothing to do

        21       with recycling, so now I'm back to confusion.

        22                      SENATOR MARCELLINO:  What are

        23       you referring to?

        24                      SENATOR OPPENHEIMER:  Referring

        25       to paragraph -- section 4.







                                                          819

         1                      SENATOR MARCELLINO:  We've

         2       taken some language from section 2, deleted it

         3       from 2 and put it into 4.  That's basically

         4       what's happened, just a rearrangement of the

         5       language.

         6                      SENATOR OPPENHEIMER:  But, if I

         7       may, through you, Mr. President.  If this is

         8       not part of recycling, then why are we doing

         9       it?  The packaging was considered hazardous

        10       packaging with implications for children's

        11       health, mental incapacities, potential cancer,

        12       and -- and if this is not part of the

        13       recycling stream, then why are we doing it?

        14                      SENATOR MARCELLINO:  Senator,

        15       as I said earlier, this is part of existing

        16       law now.  We're not adding any new law here.

        17       This is existing law.  What has been done is

        18       the language has been, for the technocrats'

        19       purposes, cleaned up a little bit by moving it

        20       from one section to another, but it is in

        21       existing law. You can go back to it and look

        22       at it again; it's there.

        23                      SENATOR OPPENHEIMER:  Well,

        24       through you then, Mr. President, I question

        25       why we are doing it, if one can believe that







                                                          820

         1       the recycling would be in diminishing amounts

         2       in the new product because part would be

         3       eventually through recycling, it would get to

         4       be smaller and smaller amounts that are used

         5       in the new process, in the new packaging.  If

         6       I can buy into that, I can't buy into that

         7       there's no recycling involved at all.

         8                      SENATOR MARCELLINO:  Up to a

         9       point, it would diminish because you can only

        10       reuse and reuse, but after a while you can't

        11       recycle everything over again forever.

        12       Recycled materials becomes a problem.  You

        13       have to sometimes go back, because of the

        14       strength of the packaging and the consistency

        15       of the packaging you need to go back and bring

        16       in new stuff to a certain extent so you can

        17       not just keep on recycling.

        18                      It's a nice idea but we

        19       ultimately end up with nothing new.  We'll

        20       just keep on reusing the same old material.

        21       That would be fine if you got it all back,

        22       which you don't, because some of it becomes

        23       contaminated, you can't get it all back; and

        24       it would be also fine if the consistency was

        25       there, the strength and the durability was







                                                          821

         1       there. The recycled materials do not hold up

         2       necessarily when they're reused more than a

         3       few times, so that you have to weigh the

         4       content.

         5                      All of these things caused to

         6       make the industry what it is and that is an

         7       evolving industry and it's still changing and

         8       will continue that way for a long time.  We

         9       need to encourage that. Federal legislation

        10       has set a certain standard that we see the

        11       need for certain exemptions. They do too, but

        12       the way the bill was written originally, it

        13       didn't allow for more than or at least

        14       apparently doesn't allow for more than one

        15       exemption or one sequence.

        16                      We believe the intent was to

        17       allow for these exemptions to continue as long

        18       as the need continues.  The need is still

        19       there. The federal legislation is still

        20       there.  We're cleaning up the language; that's

        21       all we're doing here, Senator.

        22                      SENATOR OPPENHEIMER:  Thank you

        23       very much, Senator.

        24                      On the bill.

        25                      ACTING PRESIDENT HOLLAND:







                                                          822

         1       Senator Oppenheimer, on the bill.

         2                      SENATOR OPPENHEIMER:  I have in

         3       the past supported this bill, and I did feel

         4       that we have to give time to -- to industry to

         5       come up with viable alternatives to -- to the

         6       hazardous packaging and I -- I do understand

         7       the recycling aspect of it and, you know,

         8       eventually have smaller and smaller amounts of

         9       the recycled material that will be utilized in

        10       the new packaging.

        11                      I can buy into that, but I'm

        12       going to be voting no on the bill because it

        13       seems to me that it's simply enough is

        14       enough.  We have been waiting seven to eight

        15       years to get a reduction in the hazardous

        16       packaging, and there's a large portion of this

        17       bill which is devoted to hazardous packaging

        18       that is not in the waste stream, that is not

        19       being recycled.

        20                      So I feel that we have waited

        21       long enough for viable alternatives to this

        22       packaging which we believe -- many of us

        23       believe that these substances -- these

        24       substances can cause considerable damage to

        25       the nervous system and to learning







                                                          823

         1       disabilities and cancer, and I just think

         2       enough is enough.  We've waited long enough

         3       for an alternative.

         4                      I'll be voting no.

         5                      ACTING PRESIDENT HOLLAND:  Read

         6       the last section.

         7                      THE SECRETARY:  Section 7.

         8       This act shall take effect on the 120th day.

         9                      ACTING PRESIDENT HOLLAND:  Call

        10       the roll.

        11                      (The Secretary called the

        12       roll. )

        13                      THE SECRETARY:  Those recorded

        14       in the negative on Calendar Number 211 are

        15       Senators Leichter, Montgomery, Oppenheimer,

        16       Paterson and Smith.  Ayes 51, nays 5.

        17                      ACTING PRESIDENT HOLLAND:  The

        18       bill is passed.

        19                      Senator Kuhl, with your

        20       permission, we'd like to step away from the

        21       controversial calendar.

        22                      Negative.  Secretary will

        23       read.

        24                      THE SECRETARY:  Calendar Number

        25       223, by Senator Volker, Senate Print Number







                                                          824

         1       222, an act to amend the Penal Law and the

         2       Criminal Procedure Law, in relation to term of

         3       imprisonment.

         4                      SENATOR VOLKER:  Mr. President,

         5       this bill, I think the best term for it was

         6       coined last year, is called "three times and

         7       you're out".  The bill, by the way, passed

         8       last year 49 to 7 and the year before passed

         9       46 to 8.  I guess we're doing a little better,

        10       sort of; but at any rate -- anyways, what the

        11       bill says basically is -- and keep in mind

        12       that there's a very limited number of people

        13       that are involved in this because we always -

        14       already have the persistent violent felony

        15       bill which sends people away for a

        16       considerable piece of time.

        17                      What this would -- this is a

        18       third offense for a violent felony offense and

        19       we have specifically listed, these are the

        20       most -- the heaviest of crimes, would say that

        21       the minimum penalty would be 25 years to

        22       life.

        23                      Now, frankly, in most cases on

        24       the second offense, depending on -- obviously

        25       on the two violent felonies, that person will







                                                          825

         1       have spent a lot of time in jail already, so

         2       you're really talking about what we call here

         3       professional violent felons in a sense.  These

         4       are heavy people.  These are not people who

         5       are ordinary violent offenders.  These are

         6       people who have gone through the mill on

         7       several occasions, and now this is the third

         8       time that they're arrested and convicted of a

         9       violent felony offense.

        10                      It also has certain limitations

        11       in it relating to plea bargaining and pleading

        12       in the violent felony offense area.  One of

        13       the things I think everyone should understand

        14       is that, despite comments to the contrary, in

        15       a lot of these -- in legislation, we can say

        16       that there is never any particular plea

        17       bargaining in these areas but, of course,

        18       there's always the possibility for plea

        19       bargaining. What this bill would do would set

        20       certain limitations for people who are in the

        21       violent felony offense category.

        22                      As I say, this bill has passed

        23       for the last several years, and that's

        24       basically the bill.

        25                      ACTING PRESIDENT HOLLAND:







                                                          826

         1       Senator Montgomery.

         2                      SENATOR MONTGOMERY:  Yes, thank

         3       you, Mr. President.

         4                      I would just like to ask

         5       Senator Volker if he would yield for a couple

         6       of questions.

         7                      SENATOR VOLKER:  Sure.

         8                      ACTING PRESIDENT HOLLAND:

         9       Senator yields.

        10                      SENATOR MONTGOMERY:  Senator,

        11       it's my understanding that, in fact, the

        12       incidence of violent crime has been

        13       decreasing, if you will, so that we're

        14       experiencing a very large drop in the violent

        15       crime that you're talking about.  Is that not

        16       the case, or is that a misunderstanding?

        17                      SENATOR VOLKER:  Let me just

        18       say, actually you're actually right and let me

        19       just say the memo -- I realize just looking at

        20       the memo here, and I apologize.  This memo was

        21       given to us some years ago and it's

        22       fascinating that it talks about the incredible

        23       rate and rise in violent crime.

        24                      Let me point out to you that

        25       that incredible rate in violent crime has







                                                          827

         1       declined dramatically since we have been

         2       locking people up, especially violent

         3       criminals over the last three to four years in

         4       particular. You can make an argument, I think

         5       it's a very good argument, that we have really

         6       clamped down on people and beginning to make

         7       sure that the really violent people are going

         8       to jail, that the rate of violent crime has

         9       begun to drop dramatically.

        10                      That doesn't mean that we still

        11       don't have a high violent crime rate but what

        12       it means is that it has dropped off

        13       dramatically and you are absolutely right.

        14                      SENATOR MONTGOMERY:  Now, as I

        15       read the legislation, Senator Volker, through

        16       the Chair, we -- you are changing the category

        17       of persistent violent felony offender to

        18       predicate; is that what the language change

        19       is?

        20                      SENATOR VOLKER:  No, actually

        21       what we're doing is we're adding -- persistent

        22       violent felony offender has been in the law

        23       for some time.

        24                      SENATOR MONTGOMERY:  Right.

        25                      SENATOR VOLKER:  But what we're







                                                          828

         1       doing here is we're adding that and actually,

         2       the predicate, what we are doing here we are

         3       taking -- you have a person who is already

         4       subject to the Persistent Violent Felony

         5       Offender Law which we passed here, by the way,

         6       many years ago now comes out and now permits

         7       another violent felony offense, so the

         8       predicate becomes the violent -- the previous

         9       violent felony offenses.

        10                      That person is the one we are

        11       now subjecting to 25 years to life.

        12                      SENATOR MONTGOMERY:  The -

        13       just for information purposes, Senator.

        14                      SENATOR VOLKER:  Sure.

        15                      SENATOR MONTGOMERY:  Persistent

        16       violent felony offenders likely to have been

        17       incarcerated previously?

        18                      SENATOR VOLKER:  They have -

        19       well, they have to have been incarcerated

        20       essentially previously, because these are, as

        21       I say, these are not -- these are heavy

        22       people.  These are people who have -- the

        23       violent felony offenders are people who are

        24       limited categories of offenses in the law

        25       involving, you know, personal crimes, man







                                                          829

         1       slaughters, sodomy, rapes, those sort of

         2       things, and murderers in certain cases, I

         3       suppose, so we are talking about a limited

         4       group of people who commit a lot of violent

         5       crimes.

         6                      So this, by the way, so you

         7       understand, we're not changing the Persistent

         8       Violent Offender Law or anything like that.

         9       We're just adding an additional category for

        10       somebody who has been through the previous

        11       cycle, has committed the two previous violent

        12       felony offenses and now they do the third and

        13       when they do the third now, we're putting in

        14       what we call a "three times and you're out".

        15       You know, "two times and you're out" has been

        16       presented.  We're calling this "three times

        17       and you're out" and, as somebody said, three

        18       times and you're really out.

        19                      SENATOR MONTGOMERY:  Thank you,

        20       Senator Volker.

        21                      On the bill, Mr. President.

        22                      ACTING PRESIDENT HOLLAND:

        23       Senator Montgomery, on the bull.

        24                      SENATOR MONTGOMERY:  Senator

        25       Volker is proposing that the minimum sentence







                                                          830

         1       for a violent felony offender in this

         2       category, if I read the bill correctly, be

         3       increased from a minimum of two to ten, ten

         4       years to a minimum of 25 years, am I -- and.

         5       If that is the case, I certainly understand

         6       what Senator Volker is seeking to do and that

         7       is to make sure that a person who continues to

         8       commit violent offenses for certain is

         9       incarcerated.

        10                      However, one of the main

        11       problems that we have with -- as our system

        12       now exists, is that we have basically stripped

        13       away much of the support services that keep

        14       people from, in fact, returning to crime and

        15       thereby returning to -- back into the system.

        16                      So without -- without a strong

        17       system of education, drug -- drug

        18       rehabilitation, employhment, skills

        19       development of people who are incarcerated,

        20       this legislation will do nothing more, it

        21       seems to me, than to force us to build more

        22       prisons because we now have people who are

        23       just going to be warehoused there for 25 years

        24       perhaps, rather than 10 years.  When they come

        25       out, they will still be left with the same







                                                          831

         1       problems that they had when they went in, and

         2       so the -- the legislation, while certainly

         3       it's going to increase the length of time the

         4       people are going to be in minimally, it won't,

         5       in fact, reduce the problem that we're trying

         6       to address here because once they come out,

         7       they just will have had 10 to 12 to 15 more

         8       years in the same situation without having the

         9       kind of remediation that would be required in

        10       order for them to, in fact, change their

        11       behavior.

        12                      So I will vote as I did last

        13       year on this legislation, and I note that

        14       there were several other of the members who

        15       did vote against this legislation including

        16       Senator Connor, Senator Leichter, Senator

        17       Waldon, Senator Smith, Senator Sampson,

        18       Senator Paterson, and myself.

        19                      Thank you, Mr. President.

        20                      ACTING PRESIDENT HOLLAND:

        21       Senator Leichter.

        22                      SENATOR LEICHTER:  Yes.  Would

        23       Senator Volker yield, please?

        24                      SENATOR VOLKER:  Certainly.

        25                      ACTING PRESIDENT HOLLAND:







                                                          832

         1       Senator yields.

         2                      SENATOR LEICHTER:  Senator, I

         3       appreciate your statement that you intend this

         4       bill to apply to, as you call heavy people,

         5       not -- I mean it still does apply to people

         6       who weigh more than 200 pounds.  What you're

         7       intending is those who are a menace to

         8       society; but, right now, if somebody commits

         9       that third offense and it's a particularly

        10       heinous offense, a judge could sentence that

        11       particular defendant or criminal, if you will,

        12       to a life term, can he not?

        13                      SENATOR VOLKER: He could.  In

        14       all honesty, Franz, what this really

        15       effectively does is raise the minimum. I mean

        16       for various reasons it raises the minimum from

        17       20 to 25 years to life.  In other words, you

        18       know the complications here.  We're talking

        19       about violent felony offenders to start with

        20       and, as I understand it, if you get into the

        21       minimum situation and the predicate felony

        22       situation, once you get past and into the

        23       third offense, although it's arguable that

        24       there's a way of getting away from the 20

        25       years, but the general -- when we did the







                                                          833

         1       mockup on this bill, so to speak, it

         2       essentially increases the minimum sentence

         3       from, I believe it's 20 to 25 to life or

         4       something like that, but 25 to life.

         5                      We're not -- this isn't a

         6       dramatic increase.  What it's designed to do

         7       is, in all honesty, it was a follow-up to the

         8       death penalty. It's a follow-up in a sense to

         9       the death penalty, because what we're doing,

        10       we're using this as the next sentence down for

        11       extreme violent felony offenders where the

        12       death penalty statute, the second or second -

        13       murder second, which used to be the top

        14       penalty was 25 years to life, and we're saying

        15       that these are the next people in line in a

        16       sense when they are triplicate violent felony

        17       offenders.

        18                      SENATOR LEICHTER:  Mr.

        19       President, if Senator Volker would continue to

        20       yield.

        21                      SENATOR VOLKER:  Sure.

        22                      SENATOR LEICHTER:  What you're

        23       really doing here is limiting very severely

        24       the discretion that judges have.  Wouldn't

        25       that be a fair statement?







                                                          834

         1                      SENATOR VOLKER:  Not very

         2       severely but we're limiting it somewhat.

         3       They're already limited to some extent because

         4       of previous legislation that we passed.  It

         5       does tighten up, that's true, it does tighten

         6       up for triplicate felony offenders, but

         7       there's some limitations already in the law

         8       relating to these people because they are such

         9       severe violent felony offenders and we have to

        10       keep in mind something here, that these are

        11       people that obviously have spent a lot of time

        12       in jail and, when you say that there are not

        13       services or something for them, I'm not

        14       exactly sure what services we can provide for

        15       these people.

        16                      I mean these are not your

        17       average ordinary criminals.  These are people

        18       who have been in the system probably for 25 or

        19       30 years and are still committing very serious

        20       crimes, and I think that's why this bill is -

        21       is here, and that's why it is -- this is,

        22       frankly, a middle ground between the second

        23       so-called "two times and you're out" and -

        24       and the -- and the more moderate, the more

        25       moderate sentence.







                                                          835

         1                      SENATOR LEICHTER:  Mr.

         2       President, if Senator Volker would yield to

         3       another question.

         4                      Senator, you know, right now,

         5       we have somebody who has committed two serious

         6       violent felonies and he commits another

         7       serious violent felony.  The judge can

         8       sentence him to a life term.  So we have a way

         9       right now of dealing with that person who

        10       really cannot be rehabilitated, who has had

        11       already two chances, and with such a threat to

        12       society that we could make the determination

        13       that person either has to spend the rest of

        14       his days in jail or should spend time in jail

        15       for many, many years until he really will be

        16       so old as not to be a threat.

        17                      What I'm concerned about,

        18       Senator is there are differences in violent

        19       felonies.  You'll agree with me on that.  Some

        20       that are less heinous, there are some that are

        21       very heinous.  My concern is, and maybe you

        22       can address that is, somebody who has had two

        23       violent felony offenses and he's out and he

        24       maybe gets into a brawl in a bar.  Under some

        25       circumstances the physical nature of that







                                                          836

         1       could result in his being charged with a

         2       violent felony.

         3                      My question is, do you want to

         4       treat that person the same way as that person

         5       who, I think I gave that example having been

         6       in jail two times, now he's involved in an

         7       armed robbery, and he shoots somebody; but

         8       under your bill, the judge would not be able

         9       to make any differentiation, isn't that true?

        10                      SENATOR VOLKER:  Franz, I

        11       assume if you mean he's in a brawl, he's in a

        12       violent felony offense; he's either killed

        13       somebody or almost killed somebody because

        14       that would be the most likely violent felony

        15       that I could think of that would constitute

        16       the third.

        17                      Franz, let's keep this in mind

        18       when you're talking about life imprisonment,

        19       the life imprisonment might mean what is the

        20       minimum for that life imprisonment.  The judge

        21       just doesn't sentence somebody to life

        22       imprisonment.  I believe the maximum would be

        23       20 years to life if I'm not mistaken.

        24                      What this does, in effect, is

        25       push up the minimum to 25 from 20 years to







                                                          837

         1       life.  It pushes it up to 25 years to life.

         2       Now, the district attorney, by the way, and

         3       you know very well if he's not really -- if

         4       he's not charged with a violent felony

         5       offense and the jury is not going to be

         6       inclined to feel that it is a serious offense,

         7       the D.A., of course, can plead it out if he

         8       wants to; but the thing is once a person has

         9       committed that third serious offense and

        10       that's what this is all about, he's in a

        11       position or she's in a position where they

        12       have had two times before this to -- to make

        13       decisions.

        14                      This is not, you know, a minor

        15       offender.  This is a very serious offender.

        16                      SENATOR LEICHTER:  Mr.

        17       President, on the bill.

        18                      ACTING PRESIDENT HOLLAND:

        19       Senator Leichter, on the bill.

        20                      SENATOR LEICHTER:  Let me first

        21       thank my friend, Senator Volker, for his

        22       answers.

        23                      Senator, I must say that I

        24       consider this a harsh and an unnecessary

        25       bill.  I think you yourself in a sense stated







                                                          838

         1       how unnecessary it was by pointing out that

         2       we've had a significant decline in crime,

         3       particularly in violent crime.

         4                      Now, whatever the reasons for

         5       that is, and the criminologists and

         6       penologists really are unable to come and

         7       point to any of one thing, you point to the

         8       highest sentences that have been imposed in

         9       this state and I can't say that isn't a

        10       factor.  I think most people are more inclined

        11       to think it's a matter of the demographics and

        12       the fact that there are less younger people,

        13       those who are inclined to commit crimes, who

        14       are currently in our society and that crime

        15       rate will probably go up as we get an increase

        16       in that younger population; but whatever the

        17       reason, the fact -- the point is that we've

        18       had this decline in crime.  We've had this

        19       decline in violent crime absent this very

        20       draconian bill.  You yourself said, Well, it

        21       was written many years ago and that's why your

        22       memorandum, which I was going to question you

        23       on, but you pointed it out, it starts off, and

        24       it -- or the second paragraph says,

        25       "unmistakably crimes of violence in this







                                                          839

         1       state are on the rise."

         2                      Well, they're not on the rise.

         3       They're on the decline.  Maybe when you first

         4       drafted this bill maybe there was some

         5       justification for it.  I would have argued

         6       against it even at that time, but by your own

         7       terms there's no justification for it now, and

         8       I think Senator Montgomery made some very

         9       valid points.  We've increased the jail

        10       population in this state from when I think I

        11       came to the Legislature it was probably less

        12       than 15,000.  We're now approaching 70,000.

        13       We're looking at a population and that may go

        14       as high as $100,000 -- 100,000 people.

        15                      I don't think this is necessary

        16       for the protection of society.  I think we

        17       have to take a look at really whether we're

        18       not becoming a society where our only answer

        19       is increased penalties; build more jail cells;

        20       incarcerate people.  I think there are other

        21       answers. There are other approaches, and there

        22       are other needs that this society has, and

        23       looking at the current situation of crime in

        24       this state, I don't find any reason or

        25       justification for taking away from judges the







                                                          840

         1       power that they now have to already impose

         2       extremely severe sentences.

         3                      It's, as you said, well, they

         4       can now sentence somebody to 20 years to

         5       life.  How much more do you want to do? You

         6       say, Well, this is a natural corollary to the

         7       death penalty.  I don't know what that means

         8       and, as you know, I'm a strong opponent of the

         9       death penalty, but I don't think that just

        10       because we now have the death penalty means

        11       that we've now got to raise every other

        12       penalty in this state, which seems to be the

        13       argument you are making.

        14                      So I strongly urge us not to

        15       adopt this measure, to have some balance, some

        16       reason to have some other approach than just

        17       say, Well, every day we're going to increase

        18       some penalty and provide even more people for

        19       jails. I think this bill is a mistake.

        20                      ACTING PRESIDENT HOLLAND:

        21       Senator Gold.

        22                      SENATOR GOLD:  Thank you, Mr.

        23       President.

        24                      Will Senator Volker yield to a

        25       question, please?







                                                          841

         1                      SENATOR VOLKER:  Certainly.

         2                      ACTING PRESIDENT HOLLAND:

         3       Senator yields.

         4                      SENATOR GOLD:  Senator, I've

         5       been hearing a lot in the -- and, by the way,

         6       I'd like to face you, but the new rule is

         7       we're supposed to look at the microphone.

         8                      Senator, I've been hearing a

         9       lot lately about this business of terminating

        10       parole and, while some people are under the

        11       impression that everyone going to jail for

        12       life, we all know that's not true and that if

        13       there is an end to parole, we'll probably be

        14       talking about some kind of a definite

        15       sentencing system, and my question, Senator,

        16       is with all of your good intentions in this

        17       area -- and I know they are very sincere -

        18       why would we do this bill today if, in fact,

        19       we've got this proposal coming from the

        20       Governor, and I think that people are going to

        21       at least look at it -- whether we adopt it is

        22       another issue -- but doesn't it make more

        23       sense, and it's sort of I guess a combination

        24       between you and Senator Leichter, and doesn't

        25       it make more sense to, maybe once and for all,







                                                          842

         1       take a look at the sentencing structure in one

         2       piece rather than examining it in bills which

         3       may conflict with something we may want to do

         4       in a month from now?

         5                      SENATOR VOLKER:  Senator, the

         6       problem with that is -- and that would be

         7       fine.  We've been working at this, the issue

         8       of sentencing obviously for years and years.

         9       In fact, you might be interested to know that

        10       we're just finishing a review that I did

        11       because there's been so much talk about the

        12       Rockefeller drug laws and sentencing.  I had

        13       my counsel do a review of all we've done since

        14        -- since the late '60s in sentencing which

        15       we're going to release fairly shortly, that

        16       shows an enormous change over in sentencing

        17       and in the way we handle not only drug laws

        18       but violent offenders, and so forth.

        19                      I think that, yeah, I think the

        20       Governor is about to come out with a bill

        21       relating to limitations of parole.  That bill,

        22       as I understand it, and I haven't seen it yet

        23       obviously, is talking about limitations of

        24       parole for first offenders and, Senator, we

        25       still have people who are already now in jail,







                                                          843

         1       violent felony offenders, who in a first

         2       offender bill will not have a -- necessarily

         3       any impact on where this bill here that

         4       relates to these people who are third time

         5       offenders will directly relate to them.

         6                      Now, you -- I think you can

         7       make an argument, I suppose, that we could

         8       wait to see if the Assembly will accept the

         9       Governor's proposal and, if we can come to an

        10       agreement, but it's my position that this is a

        11       proposal that has been around for a number of

        12       years.  I think it makes sense in the -- in

        13       the area of sentencing for again third time

        14       violent felony offenders, let me make that

        15       very clear, and it just seems to me that this

        16       makes a great deal of sense and it's something

        17       that I think we should put out on the floor

        18       and look at and talk with the Assembly on, as

        19       we have and, in fact, if I'm not mistaken

        20       several people in the Assembly have said that

        21       they think this bill is something that should

        22       be looked at.  In fact, I think one very

        23       prominent person in the Assembly said that

        24       this is something that they want to look at.

        25                      SENATOR GOLD:  Mr. President,







                                                          844

         1       on the bill.

         2                      ACTING PRESIDENT HOLLAND:

         3       Senator Gold, on the bill.

         4                      SENATOR GOLD:  Senator, when

         5       you say it's something that we should look at,

         6       the fact is we have looked at it in '95; we

         7       looked at it in '96, Senator Volker, and we

         8       looked at it in '97, and here we are again and

         9       the Assembly knows that this house, in spite

        10       of the opposition from a number of people,

        11       they know that this bill can pass.

        12                      One of the things -- one of the

        13       thoughts I had when I was listening to Senator

        14       Leichter, was a statement made by a doctor

        15       years ago when he was asked by some very

        16       nervous parents whether their child would

        17       survive a certain piece of surgery, and the

        18       doctor looked at the parents and said,

        19       "Please, this is very, very, very difficult

        20       surgery," and there was a pregnant pause and

        21       then the doctor said, "We do it every day."

        22                      Senator, in sentencing, if we

        23       are going to accomplish what Senator Leichter

        24       suggested, which I think everybody understands

        25       has a certain reasonable basis to it, it may







                                                          845

         1       not be the easiest way to do it, but people do

         2       it every day in the federal courts where they

         3       work on a grid system, and I'm not saying that

         4       that's the end all of all intelligence, but

         5       they take a look at crimes and even within a

         6       specific crime, they look at the criminal and

         7       the crime is on one side of the grid and the

         8       criminal is on the other side of the grid and

         9       circumstances of the crime get worked in there

        10       and you wind up with something like Senator

        11       Leichter is talking about, where differences

        12       in crimes perhaps are treated differently and

        13       there's a more intelligent approach.

        14                      I think that, if the public and

        15       the political community believes that parole,

        16       quotes/unquote, should be ended, then

        17       everybody in this chamber knows you're going

        18       to be talking about a new sentencing

        19       structure, because under a parole system if

        20       somebody is now spending four years in jail

        21       let's say and then they get paroled, if we end

        22       parole, we may change the sentence to be four

        23       years, and then put the person on probation

        24       because nobody is suggesting that all of a

        25       sudden, something which the law says, somebody







                                                          846

         1       goes up to eight years is going to do eight

         2       years.  That's not true because everybody

         3       knows, when you get eight years everybody

         4       knows you get three years, and you get this,

         5       so everybody knows we are going to have to do

         6       restructuring of this sentencing, and, Senator

         7       Volker, from my point of view, I am glad that

         8       you are one of the people that will be

         9       involved because I think you bring a common

        10       sense attitude towards it.

        11                      But I think while I've gone

        12       back and forth on this bill in my mind, going

        13       back over the years, this year I am going to

        14       oppose it only because I think that I don't

        15       want us jumping at these proposals so that the

        16       Assembly knows we can do it.  The Assembly

        17       knows.  The make-up of this house since 1995

        18       has not changed that much, unfortunately for

        19       my side, and the Assembly knows that we can

        20       pass it, and I think that this year if we're

        21       going to get a budget on time which I'm, very

        22       hopeful maybe we'll do that, and if we're

        23       going to get out of here on time, we ought to

        24       perhaps, instead of spreading out the debate

        25       to bring everything in.







                                                          847

         1                      I know that the leader of this

         2       house doesn't want us to have inactivity, and

         3       one of the ways we do that is by spending

         4       January and February with old chestnuts

         5       because his people can work on the budget

         6       without thinking too hard because we've had

         7       all of these bills before, but I don't really

         8       know that that really makes too much sense,

         9       and this is an area this year where perhaps we

        10       can do something that is really meaningful in

        11       the whole sentencing structure, and I'm not so

        12       opposed to a definite system if it's worked on

        13       a grid and it takes into consideration all

        14       different kinds of aspects.

        15                      But I would just urge, Senator

        16       Volker, that things like this ought to wait.

        17       They ought to wait until we get all of the

        18       proposals out there and see whether the

        19       Legislature is going to move in that area.

        20                      So this year respectfully, I'm

        21       going to vote not to pass it.

        22                      ACTING PRESIDENT HOLLAND:  Read

        23       the last section.

        24                      THE SECRETARY:  Section 5.

        25       This act shall take effect immediately.







                                                          848

         1                      ACTING PRESIDENT HOLLAND:  Call

         2       the roll.

         3                      (The Secretary called the

         4       roll. )

         5                      ACTING PRESIDENT HOLLAND:

         6       Senator Paterson, why do you rise?

         7                      SENATOR PATERSON:  Mr.

         8       President, I'd like to explain my vote.

         9                      ACTING PRESIDENT HOLLAND:

        10       Senator Paterson, to explain his vote.

        11                      SENATOR PATERSON:  Mr.

        12       President, I think Senator Volker made a point

        13       that probably is important that we are talking

        14       about people who are predicate felons; we are

        15       talking about people who have now committed

        16       their third violent felony.

        17                      My feeling, however, is that by

        18       the time they commit their third violent

        19       felony and when you factor in the period of

        20       time that they would be spending behind bars

        21       that we are actually turning our prisons into

        22       geriatric wards, and we're also accruing a

        23       tremendous cost to the state to house the

        24       number of people who will probably age out in

        25       terms of their capacity to further become







                                                          849

         1       violent.

         2                      The reason I'm voting against

         3       this legislation is that although we can take

         4       into account previous acts when -- when

         5       issuing a sentence for a third violent felony,

         6       we can't take that into account when actually

         7       conducting the trial, so in other words, in an

         8       place like the Bronx which has an 84 percent

         9       conviction rate -- I'm sorry, 84 percent of

        10       cases pleaded out, Manhattan is 81 percent

        11       pleaded out, the general average is about 81

        12       percent of cases are pleaded out, the

        13       conviction rates in these same areas are

        14       generally 15 to 20 percent lower, so you're

        15       going to get a conviction rate in the 60s for

        16       these violent third felony cases because the

        17       individuals, since the sentence is mandatory,

        18       are going to opt for a trial, knowing full

        19       well that they can't plead these cases out

        20       since the legislation actually restricts plea

        21       bargaining to a certain extent.

        22                      So I think that we're going to

        23       be housing a number of people who -- in your

        24       prisons who are no longer violent and we're

        25       actually going to be losing perhaps 15 to 20







                                                          850

         1       percent of the individuals who we try because

         2       knowing that there's no judicial discretion

         3       and that this will be a mandatory sentence for

         4       the third violent felony offense, they're

         5       going to opt to go to trial and many of them

         6       are going to slip through the cracks.

         7                      So I just think that any judge

         8       who can't understand that a third violent

         9       felony should probably receive the kind of

        10       sentence that Senator Volker is proposing in

        11       the legislation maybe shouldn't be sitting on

        12       the bench in the first place.

        13                      I think this is a case of

        14       judicial discretion, and more so a lack of

        15       faith in judicial discretion more so than what

        16       would really be a mandatory sentence which I

        17       suggest that if we execute a mandatory

        18       sentence, we're going to have more trials and

        19       more individuals who should be behind bars

        20       going free to commit their fourth violent

        21       felony offense.

        22                      ACTING PRESIDENT HOLLAND:  How

        23       do you vote, Senator?

        24                      SENATOR PATERSON:  Oh, I'm

        25       sorry, Mr. President.  I vote no.







                                                          851

         1                      ACTING PRESIDENT HOLLAND:

         2       Senator Paterson votes no.

         3                      THE SECRETARY:  Those recorded

         4       in the negative on Calendar Number 223

         5       Senators Connor, Gold Leichter, Montgomery,

         6       Paterson, Santiago, Seabrook and Smith.  Ayes

         7       48, nays 8.

         8                      ACTING PRESIDENT HOLLAND:  The

         9       bill is passed.

        10                      That completes the

        11       controversial reading of the calendar.

        12                      Senator Kuhl.

        13                      SENATOR KUHL:  May we return to

        14       motions and resolutions.  I believe there's a

        15       privileged resolution at the desk by Senator

        16       Bruno.  I would move its adoption.  Ask the

        17       title be read and move its adoption.

        18                      THE SECRETARY:  By Senator

        19       Bruno, Legislative Resolution memorializing

        20       Governor George E. Pataki to proclaim February

        21       23rd as Permanent Rotary International Day in

        22       the state of New York and designating the week

        23       following as Rotary International Week in the

        24       state of New York.

        25                      ACTING PRESIDENT HOLLAND:  The







                                                          852

         1       question is on the resolution.  All in favor

         2       say aye.

         3                      (Response of "Aye.")

         4                      Those opposed say no.

         5                      (There was no response.)

         6                      The resolution is adopted.

         7                      Senator Kuhl.

         8                      SENATOR KUHL:  Also, Mr.

         9       President could we have the title to a

        10       resolution by Senator Montgomery, Senate

        11       Resolution 2537, read.  The resolution was

        12       previously adopted by the house, and then

        13       would you recognize Senator Montgomery.

        14                      ACTING PRESIDENT HOLLAND: The

        15       Secretary will read.

        16                      THE SECRETARY:  By Senator

        17       Montgomery, Legislative Resolution

        18       memorializing Governor George E. Pataki to

        19       proclaim Monday, February 23rd, 1998 as Boys

        20       and Girls High School Football Team Day in the

        21       state of New York.

        22                      ACTING PRESIDENT HOLLAND:

        23       Senator Montgomery.

        24                      SENATOR MONTGOMERY:  Thank you,

        25       Mr. President.







                                                          853

         1                      It gives me great pride and

         2       pleasure to acknowledge a wonderful

         3       accomplishment by one of the premier high

         4       schools in my district, Boys and Girls High

         5       School Football Team. The team is the Red

         6       Swarm, and they are the 1997 Metro Division B

         7       championship team.  They won their game in a

         8       very, very -- championship rather in a very,

         9       very tight game against Erasmus High School,

        10       another high school that happens to be in

        11       Senator Marty Markowitz' district, so for

        12       once, Bed-Stuy has beaten Senator Marty Marty

        13       Markowitz' team.  They won 20 to 18, so it was

        14       a very close championship game.

        15                      The team members are here today

        16       with us.  We honored them earlier, by having

        17       lunch with them.  Assemblyman Vann has given

        18       each of the team members a certificate, but

        19       now in the Senate, I am very pleased to

        20       welcome and salute them. They are accompanied

        21       by their dedicated and hard working team

        22       coaches.  Three of the coaches are here on the

        23       floor with us:  Head coach Ron Adams,

        24       assistant coach Steve Markham, and assistant

        25       coach Miles Witkoff.  In addition, assistant







                                                          854

         1       coach Maberti and assistant coach Bernard

         2       Gilliam are also accompanying the team.

         3                      I am proud because these young

         4       people have demonstrated and bring to us what

         5       excellence means, that it means to be a

         6       winning team, but more importantly, they

         7       represent for me personally and particularly

         8       the best of young men from Bedford-Stuyvesant,

         9       so I'm very proud of them and I certainly hope

        10       that this victory in 1997 is only a

        11       beginning.  It's a break in 21 years of not

        12       having such victories, but certainly I am sure

        13       that the next 21 years will bring a lot more,

        14       a lot more winning championships for Boys and

        15       Girls High.

        16                      Thank you very much, Mr.

        17       President for allowing me to acknowledge these

        18       young men today.

        19                      ACTING PRESIDENT HOLLAND:

        20       Thank you, Senator Montgomery.

        21                      Senator Smith.

        22                      SENATOR SMITH:  Thank you, Mr.

        23       President.

        24                      I too, as the other African

        25       American female in the New York State Senate







                                                          855

         1       and the other person representing part of

         2       Bed-Stuy, am very pleased to welcome you here

         3       today.  Boys and Girls High is an out -- makes

         4       outstanding contributions to our community.

         5       The history of Boys High goes back to the days

         6       when I was in school and the athletes are

         7       still as good or better than they ever were.

         8                      Not only do they contribute on

         9       the athletic field, but they contribute in the

        10       classroom.  You have outstanding coaches and

        11       then you have a marvelous principal who is a

        12       friend to all of us. I expect to be hearing

        13       more from you as you go on through the

        14       colleges of your choice and you excel and you

        15       bring credit to the community that you

        16       represent.

        17                      Thank you.

        18                      ACTING PRESIDENT HOLLAND:

        19       Thank you, Senator Smith.

        20                      Senator Markowitz.

        21                      SENATOR MARKOWITZ:  Thank you

        22       very much Mr. President.

        23                      First of all, the Brooklyn Boys

        24       High played Erasmus and the game was

        25       tremendously tight.







                                                          856

         1                      Let me just say ever so briefly

         2       back in 1961 I was a student of -- had been a

         3       student one year, I forget my years at times

         4        -- of Wingate High School.  Wingate High

         5       School that year, we lost the championship by

         6       one point, one point for the entire state of

         7       New York.  B-o-y-s -- Boys High beat us by one

         8       point.

         9                      SENATOR GOLD:  Yeah.

        10                      SENATOR MARKOWITZ:  But I never

        11       held it against them, never because the truth

        12       of the matter is that Boys High and Girls are

        13       the pride of Bedford-Stuyvesant. They are the

        14       pride of Brooklyn.  We know Brooklyn is the

        15       apple, the center of New York State, and if

        16       you accept that and we all do, then we know

        17       that Bedford-Stuyvesant is the heart of

        18       Brooklyn.

        19                      Congratulations. You deserve

        20       it.

        21                      (Applause)

        22                      ACTING PRESIDENT HOLLAND:

        23       Thanks you, Senator Markowitz.

        24                      Senator Paterson.

        25                      SENATOR PATERSON:  Mr.







                                                          857

         1       President, I was actually born in Brooklyn.

         2       My mother attended Girls High School.  I grew

         3       up in that area.  I then moved, but I would

         4       like to congratulate all the students from

         5       Boys and Girls High School, and I would like

         6       to congratulate the football team for their

         7       success.  I see they are still winning, but if

         8       you were only able to beat a team that Senator

         9       Markowitz was with by only one point maybe you

        10       really weren't that good back then.

        11                      (Laughter)

        12                      However, he wasn't on the

        13       team.  So, well, that -- that notwithstanding

        14       I want to congratulate them and Coach Adams,

        15       they had 21 years of losing and you've turned

        16       the program around. Maybe you'd consider going

        17       forward and doing something for the Jets.

        18                      Thank you very much.

        19                      ACTING PRESIDENT HOLLAND:

        20       Senator Stachowski.

        21                      SENATOR STACHOWSKI:  I too

        22       would like to stand up and congratulate them.

        23       I know some of my colleagues are wondering why

        24       I get up, but my colleague, Senator

        25       Montgomery, asked if I had the opportunity to







                                                          858

         1       play football in high school and college, she

         2       thought it would be nice to say something.

         3                      Actually I never miss the

         4       opportunity when I can congratulate a team

         5       that had no wins a couple years ago and a team

         6       then wins and are champions, and I know what

         7       sacrifice and hard work is and all the

         8       important things that go into winning football

         9       but the one message I'd like to leave for the

        10       younger students who are on that team, keep in

        11       mind you have to do well in the classroom too

        12       because no matter what you do in football, you

        13       don't move on beyond high school unless you do

        14       well in the classroom also, and your coaches

        15       tell you that all the time but you say, Oh,

        16       they're only coaches, but take it from

        17       somebody who has gone through that system, I

        18       know the limits you have, that if you don't do

        19       well in school it doesn't matter if you're the

        20       best player in the whole region or perhaps the

        21       whole state, if you don't get in they can't

        22       use you and the first stop the recruiters have

        23       when they go to visit a school is the guidance

        24       counselor's office to find out how motivated

        25       you are, and if you can't get in they're going







                                                          859

         1       to say, Young man, we can't get him in, we're

         2       not going to waste his time or our time, so

         3       keep that in mind despite all the hard work

         4       you have to give the coach on the field, you

         5       still have to do your work in the classroom.

         6                      Congratulations on your

         7       accomplishment.

         8                      ACTING PRESIDENT HOLLAND:

         9       Thank you, Senator Stachowski.  The Red Swarm,

        10       on behalf of Senator Bruno, Senator

        11       Montgomery, and all of the Senators in the

        12       chamber, and to the coaches, we congratulate

        13       you on your championship.  Keep up the good

        14       work.

        15                      (Applause)

        16                      Senator Kuhl.

        17                      SENATOR KUHL:  Yes, Mr.

        18       President, is there any housekeeping at the

        19       desk?

        20                      ACTING PRESIDENT HOLLAND:

        21       There is no housekeeping, sir.

        22                      SENATOR KUHL:  All right. There

        23       being no further business, Mr. President, I

        24       move we adjourn until tomorrow, Tuesday,

        25       February 24th at 3:00 p.m.







                                                          860

         1                      ACTING PRESIDENT HOLLAND:  On

         2       motion, the Senate stands adjourned until

         3       Tuesday, February 24th, at 3:00 p.m.

         4                      (Whereupon  at 4:35 p.m., the

         5       Senate adjourned.)

         6

         7

         8

         9

        10

        11