Regular Session - March 3, 1998

                                                              1187

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         9                        ALBANY, NEW YORK

        10                         March 3, 1998

        11                            3:01 p.m.

        12

        13

        14                        REGULAR SESSION

        15

        16

        17

        18       SENATOR MICHAEL A.L. BALBONI, Acting President

        19       STEVEN M. BOGGESS, Secretary

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                                                          1188

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

         2                      ACTING PRESIDENT BALBONI:  The

         3       Senate will come to order. I ask everyone

         4       present to please rise and say the Pledge of

         5       Allegiance.

         6                      (The assemblage repeated the

         7       Pledge of Allegiance to the Flag.)

         8                      In the absence of clergy, may

         9       we bow our heads in a moment of silence.

        10                      (A moment of silence was

        11       observed. )

        12                      Reading of the Journal.

        13                      THE SECRETARY:  In Senate

        14       Monday, March 2nd. The Senate met pursuant to

        15       adjournment.  Prayer by the Reverend Iris

        16       Tucker. The Journal of Friday, February 27th,

        17       was read and approved.  On motion, Senate

        18       adjourned.

        19                      ACTING PRESIDENT BALBONI:

        20       Without objection, the Journal stands approved

        21       as read.

        22                      Presentation of petitions.

        23                      Messages from the Assembly.

        24                      Messages from the Governor.

        25                      Reports of standing







                                                          1189

         1       committees.

         2                      The Secretary will read.

         3                      THE SECRETARY:  Senator

         4       Stafford, from the Committee on Finance,

         5       reports the following bills:

         6                      Senate Print 242, by Senator

         7       Johnson, an act to amend the State Finance

         8       Law;

         9                      310, by Senator Skelos, an act

        10       to amend the Executive Law;

        11                      1684, by Senator Farley, an act

        12       to amend the Executive Law;

        13                      2210, by Senator Padavan, an

        14       act to amend the Executive Law;

        15                      3029, by Senator Holland, an

        16       act to create the Piermont Library District;

        17                      3083, by Senator Padavan, an

        18       act to amend the State Finance Law;

        19                      3766, by Senator Stafford, an

        20       act to amend the Executive Law;

        21                      3899, by Senator DeFrancisco,

        22       an act to amend the Executive Law;

        23                      4129-A, by Senator Marcellino,

        24       an act authorizing the Commissioner of General

        25       Services;







                                                          1190

         1                      5161, by Senator Goodman, an

         2       act to amend the Arts and Cultural Affairs

         3       Law, and

         4                      6247, by Senator Wright, an act

         5       providing for the transfer of funds.

         6                      Senator Hannon, from the

         7       Committee on Health, reports:

         8                      Senate Print 737, with

         9       amendments, by Senator Johnson, an act to

        10       amend the Public Health Law;

        11                      934, by Senator Velella, an act

        12       to amend the Public Health Law;

        13                      1125, by Senator Libous, an act

        14       to amend the Public Health Law;

        15                      1488, by Senator Trunzo, an act

        16       to amend the Public Health Law;

        17                      1736-B, by Senator Hannon, an

        18       act to amend the Public Health Law;

        19                      2657, by Senator LaValle, an

        20       act to amend the Public Health Law;

        21                      3659, by Senator Hannon, an act

        22       to amend the Public Health Law; and

        23                      4422, by Senator Velella, an

        24       act to amend the Public Health Law.

        25                      Senator Seward, from the







                                                          1191

         1       Committee on Energy and Telecommunications,

         2       reports:

         3                      Senate Print 4278, by Senator

         4       Seward, an act to amend the Public Service

         5       Law;

         6                      4279, by Senator Seward, an act

         7       to amend the Public Service Law;

         8                      4282, by Senator Seward, an act

         9       to amend the Public Service Law.

        10                      All bills ordered direct for

        11       third reading.

        12                      ACTING PRESIDENT BALBONI:

        13       Without objection, all bills directly to third

        14       reading.

        15                      SENATOR SKELOS:  Mr. President,

        16       at this time, if we could take up the

        17       non-controversial calendar.

        18                      ACTING PRESIDENT BALBONI:

        19       Secretary will read.

        20                      THE SECRETARY:  Calendar Number

        21       21, by Senator Volker, Senate Print 3407-A, an

        22       act to amend the Criminal Procedure Law, in

        23       relation to the authority of police officers.

        24                      SENATOR PATERSON:  Lay aside.

        25                      ACTING PRESIDENT BALBONI:  Read







                                                          1192

         1       the last section.  Lay aside for Senator

         2       Paterson.

         3                      THE SECRETARY:  Calendar Number

         4       101, by Senator Volker, Senate Print Number

         5       5007, an act to amend the Criminal Procedure

         6       Law, in relation to criminal actions.

         7                      ACTING PRESIDENT BALBONI:  Read

         8       the last section.

         9                      THE SECRETARY:  Section 2.

        10       This act shall take effect on the first day of

        11       November.

        12                      ACTING PRESIDENT BALBONI:  Call

        13       the roll.

        14                      (The Secretary called the

        15       roll. )

        16                      THE SECRETARY:  Ayes 37.

        17                      ACTING PRESIDENT BALBONI:  The

        18       bill is passed.

        19                      THE SECRETARY:  Calendar Number

        20       188, by Senator Kuhl, Senate Print 5994, an

        21       act to amend the Agriculture and Markets Law,

        22       in relation to exempting working search dogs.

        23                      ACTING PRESIDENT BALBONI:  Read

        24       the last section.

        25                      THE SECRETARY:  Section 3.







                                                          1193

         1       This act shall take effect on the first day of

         2       January.

         3                      ACTING PRESIDENT BALBONI:  Call

         4       the roll.

         5                      (The Secretary called the

         6       roll. )

         7                      THE SECRETARY:  Ayes 37.

         8                      ACTING PRESIDENT BALBONI:  The

         9       bill is passed.

        10                      THE SECRETARY:  Calendar number

        11       201, by Senator Maltese, Senate Print 2440, an

        12       act to amend the Vehicle and Traffic Law, in

        13       relation to increasing the penalty for

        14       obstructing access.

        15                      ACTING PRESIDENT BALBONI:  Read

        16       the last section.

        17                      THE SECRETARY:  Section 3.

        18       This act shall take effect on the first day of

        19       November.

        20                      ACTING PRESIDENT BALBONI:  Call

        21       the roll.

        22                      (The Secretary called the

        23       roll. )

        24                      THE SECRETARY:  Ayes 37.

        25                      ACTING PRESIDENT BALBONI:  The







                                                          1194

         1       bill is passed.

         2                      THE SECRETARY:  Calendar Number

         3       209, by Senator Stafford, Senate Print 150, an

         4       act to amend the Environmental Conservation

         5       Law, in relation to county responsibility.

         6                      ACTING PRESIDENT BALBONI:  A

         7       local fiscal impact note is at the desk.  Read

         8       the last section.

         9                      THE SECRETARY:  Section 2.

        10       This act shall take effect immediately.

        11                      ACTING PRESIDENT BALBONI:  Call

        12       the roll.

        13                      (The Secretary called the

        14       roll. )

        15                      THE SECRETARY:  Ayes 37.

        16                      ACTING PRESIDENT BALBONI:  The

        17       bill is passed.

        18                      THE SECRETARY:  Calendar Number

        19       210, by Senator Stafford, Senate Print Number

        20       389, an act to amend the Environmental

        21       Conservation Law, in relation to non-hazardous

        22       municipal landfill.

        23                      ACTING PRESIDENT BALBONI:  Read

        24       the last section.

        25                      THE SECRETARY:  Section 2.







                                                          1195

         1       This act shall take effect immediately.

         2                      ACTING PRESIDENT BALBONI:  Call

         3       the roll.

         4                      (The Secretary called the

         5       roll. )

         6                      THE SECRETARY:  Ayes 37.

         7                      ACTING PRESIDENT BALBONI:  The

         8       bill is passed.

         9                      THE SECRETARY:  Calendar Number

        10       215, by Senator Cook, Senate Print 5739-A.

        11                      SENATOR PATERSON:  Lay aside,

        12       please.

        13                      ACTING PRESIDENT BALBONI: Lay

        14       it aside, by Senator Paterson.

        15                      SENATOR PATERSON:  Lay aside.

        16                      THE SECRETARY:  Calendar Number

        17       219, by Senator Wright, Senate Print 3890, an

        18       act to amend the County Law, in relation to

        19       merger of departments.

        20                      ACTING PRESIDENT BALBONI:  Read

        21       the last section.

        22                      THE SECRETARY:  Section 3.

        23       This act shall take effect immediately.

        24                      ACTING PRESIDENT BALBONI:  Call

        25       the roll.







                                                          1196

         1                      (The Secretary called the

         2       roll. )

         3                      THE SECRETARY:  Ayes 37.

         4                      ACTING PRESIDENT BALBONI:  The

         5       bill is passed.

         6                      THE SECRETARY:  Calendar Number

         7       228, by Senator Marcellino, Senate Print 1135,

         8       an act to amend the Penal Law, in relation to

         9       criminally negligent homicide.

        10                      ACTING PRESIDENT BALBONI:  Read

        11       the last section.

        12                      THE SECRETARY:  Section 2.

        13       This act shall take effect on the first day of

        14       January.

        15                      ACTING PRESIDENT BALBONI:  Call

        16       the roll.

        17                      (The Secretary called the

        18       roll. )

        19                      THE SECRETARY:  Ayes 37.

        20                      ACTING PRESIDENT BALBONI:  The

        21       bill is passed.

        22                      THE SECRETARY:  Calendar Number

        23       229, by Senator Saland, Senate Print 1290, an

        24       act to amend the Penal Law, in relation to the

        25       minimum period of imprisonment for certain







                                                          1197

         1       persistent violent felony offenders.

         2                      ACTING PRESIDENT BALBONI:  Read

         3       the last section.

         4                      THE SECRETARY:  Section 2.

         5       This act shall take effect on the first day of

         6       November.

         7                      ACTING PRESIDENT BALBONI:  Call

         8       the roll.

         9                      (The Secretary called the

        10       roll. )

        11                      THE SECRETARY:  Ayes 37.

        12                      ACTING PRESIDENT BALBONI:  The

        13       bill is passed.

        14                      THE SECRETARY:  Calendar Number

        15       230, by Senator Holland, Senate Print 1957, an

        16       act to amend the Penal Law, in relation to

        17       fixing sentences for persons committing crimes

        18       while on parole.

        19                      ACTING PRESIDENT BALBONI:  Read

        20       the last section.

        21                      THE SECRETARY:  Section 6.

        22       This act shall take effect on the first day of

        23       November.

        24                      ACTING PRESIDENT BALBONI:  Call

        25       the roll.







                                                          1198

         1                      (The Secretary called the

         2       roll. )

         3                      THE SECRETARY:  Ayes 37.

         4                      ACTING PRESIDENT BALBONI:  The

         5       bill is passed.

         6                      THE SECRETARY:  Calendar Number

         7       231, by Senator Kuhl, Senate Print Number

         8       1977, an act to amend the Penal Law, in

         9       relation to criminal possession of a weapon in

        10       the third degree.

        11                      ACTING PRESIDENT BALBONI:  Read

        12       the last section.

        13                      THE SECRETARY:  Section 2.

        14       This act shall take effect on the first day of

        15       November.

        16                      ACTING PRESIDENT BALBONI:  Call

        17       the roll.

        18                      (The Secretary called the

        19       roll. )

        20                      THE SECRETARY:  Ayes 39.

        21                      ACTING PRESIDENT BALBONI:  The

        22       bill is passed.

        23                      THE SECRETARY:  Calendar Number

        24       232, by Senator Saland, Senate Print 2016, an

        25       act to amend the Penal Law, in relation to







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         1       consecutive sentences of imprisonment for

         2       conviction.

         3                      ACTING PRESIDENT BALBONI:  Read

         4       the last section.

         5                      THE SECRETARY:  Section 3. This

         6       act shall take effect on the first day of

         7       November.

         8                      ACTING PRESIDENT BALBONI:  Call

         9       the roll.

        10                      (The Secretary called the

        11       roll. )

        12                      THE SECRETARY:  Ayes 40.

        13                      ACTING PRESIDENT BALBONI:  The

        14       bill is passed.

        15                      THE SECRETARY:  Calendar Number

        16       233, by Senator Johnson, Senate Print 2522-A.

        17                      SENATOR PATERSON:  Lay aside.

        18                      ACTING PRESIDENT BALBONI: Lay

        19       aside for Senator Paterson.

        20                      THE SECRETARY:  Calendar Number

        21       275, by Senator Present, Senate Print 2753, an

        22       act to amend Chapter 557 of the Laws of 1992

        23       relating to sewer rent revenues.

        24                      ACTING PRESIDENT BALBONI:  Read

        25       the last section.







                                                          1200

         1                      THE SECRETARY:  Section 2.

         2       This act shall take effect immediately.

         3                      ACTING PRESIDENT BALBONI:  Call

         4       the roll.

         5                      (The Secretary called the

         6       roll. )

         7                      THE SECRETARY:  Ayes 40.

         8                      ACTING PRESIDENT BALBONI:  The

         9       bill is passed.

        10                      THE SECRETARY:  Calendar Number

        11       279, by Senator Rath, Senate Print 289, an act

        12       to amend the Criminal Procedure Law, in

        13       relation to prohibiting issuance of an order

        14       of recognizance or bail.

        15                      ACTING PRESIDENT BALBONI:  Read

        16       the last section.

        17                      THE SECRETARY:  Section 4.

        18       This act shall take effect on the 30th day.

        19                      ACTING PRESIDENT BALBONI:  Call

        20       the roll.

        21                      (The Secretary called the

        22       roll. )

        23                      THE SECRETARY:  Ayes 40, nays

        24       one, Senator Leichter recorded in the

        25       negative.







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         1                      ACTING PRESIDENT BALBONI:  The

         2       bill is passed.

         3                      THE SECRETARY:  Calendar Number

         4       280, by Senator Skelos, Senate Print 306, an

         5       act to amend the Criminal Procedure Law, in

         6       relation to limiting plea bargaining for

         7       sexual offenders.

         8                      SENATOR LEICHTER:  Lay aside.

         9                      ACTING PRESIDENT BALBONI: Lay

        10       aside for Senator Leichter.

        11                      THE SECRETARY:  Calendar Number

        12       284, by Senator Skelos, Senate Print 589-B, an

        13       act to amend the Penal Law and the Criminal

        14       Procedure Law, in relation to providing for

        15       the life imprisonment of pedophiles.

        16                      ACTING PRESIDENT BALBONI:  Read

        17       the last section.

        18                      THE SECRETARY:  Section 6. This

        19       act shall take effect -

        20                      SENATOR LEICHTER:  Lay aside.

        21                      ACTING PRESIDENT BALBONI: Lay

        22       aside for Senator Leichter.

        23                      THE SECRETARY:  Calendar Number

        24       286, by Senator Libous, Senate Print 1915, an

        25       act to amend the Penal Law, in relation to







                                                          1202

         1       parole for certain sex offenders.

         2                      ACTING PRESIDENT BALBONI:  Read

         3       the last section.

         4                      THE SECRETARY:  Section 2.

         5       This act shall take effect on the first day of

         6       November.

         7                      ACTING PRESIDENT BALBONI:  Call

         8       the roll.

         9                      (The Secretary called the

        10       roll. )

        11                      THE SECRETARY:  Ayes 41.

        12                      ACTING PRESIDENT BALBONI:  The

        13       bill is passed.

        14                      THE SECRETARY:  Calendar Number

        15       288, by Senator Hannon, Senate Print 3660, an

        16       act to amend the Criminal Procedure Law, in

        17       relation to imposing plea bargain

        18       limitations.

        19                      SENATOR LEICHTER:  Lay aside.

        20                      ACTING PRESIDENT BALBONI:  Read

        21       the last section.  Lay aside, please.

        22                      THE SECRETARY:  Calendar Number

        23       300, by Senator Nozzolio, Senate Print 177-C,

        24       an act to amend the Executive Law, the Penal

        25       Law, the Correction Law and the Mental Hygiene







                                                          1203

         1       Law, in relation to treatment of sex

         2       offenders.

         3                      ACTING PRESIDENT BALBONI:  Read

         4       the last section.

         5                      SENATOR LEICHTER:  Lay aside.

         6                      ACTING PRESIDENT BALBONI: Lay

         7       aside for Senator Leichter.  That completes

         8       the non-controversial calendar.

         9                      SENATOR SKELOS:  Mr. President,

        10       there will be an immediate meeting of the

        11       Racing, Wagering and Gaming Committee in the

        12       Majority Conference Room.

        13                      ACTING PRESIDENT BALBONI:

        14       There will be an immediate meeting of the

        15       Committee on Racing and Wagering in the

        16       Majority Conference Room.

        17                      SENATOR SKELOS:  I believe

        18       there are some substitutions at the desk.  I

        19       would ask they be made.

        20                      ACTING PRESIDENT BALBONI:

        21       Secretary will read.

        22                      THE SECRETARY:  On page 10,

        23       Senator Holland moves to discharge from the

        24       Committee on Higher Education Assembly Bill

        25       Number 3920-A and substitute it for the







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         1       identical Third Reading Calendar 180.

         2                      ACTING PRESIDENT BALBONI:  So

         3       ordered.

         4                      THE SECRETARY:  On page 10,

         5       Senator Hannon moves to discharge from the

         6       Committee on Higher Education Assembly Bill

         7       Number 8546-A and substitute it for the

         8       identical Third Reading Calendar 182.

         9                      ACTING PRESIDENT BALBONI:  So

        10       ordered.

        11                      Senator Hannon?  Senator

        12       Skelos.

        13                      SENATOR SKELOS:  Request we

        14       return to reports of standing committees.  I

        15       believe there is a report of the Finance

        16       Committee at the desk.  I ask that it be read

        17       and that you recognize Senator Stafford.

        18                      ACTING PRESIDENT BALBONI:

        19       Return to the order of business the report of

        20       standing committees.  Senator Stafford.

        21                      Secretary will read.

        22                      THE SECRETARY:  Senator

        23       Stafford, from the Committee on Finance,

        24       reports the following nomination:

        25                      Member of the Public Service







                                                          1205

         1       Commission, James D. Bennett, of Garden City.

         2                      ACTING PRESIDENT BALBONI:

         3       Senator Stafford.

         4                      SENATOR STAFFORD:  Mr.

         5       President, it's again a pleasure for me to

         6       rise and again compliment the Governor in the

         7       nominees that appeared before us, in addition

         8       to those that are listed here today.  Fine

         9       appointments, and for the first nomination of

        10       Jim Bennett, I yield to the Senator from

        11       Nassau, Senator Hannon.

        12                      ACTING PRESIDENT BALBONI:

        13       Senator Hannon.

        14                      SENATOR HANNON:  Mr. President,

        15       it gives me extremely great pleasure to move

        16       the nomination of Mr. James Bennett for

        17       appointment to be a member of the Public

        18       Service Commission.

        19                      In this day and age where great

        20       challenges in energy and telecommunications

        21       lie before this state in terms of implementing

        22       deregulation, in terms of implementing

        23       protection for the consumer, I think there can

        24       be no better an individual to be moved to this

        25       appointment than Mr. Bennett, who brings







                                                          1206

         1       considerable background in public life, in

         2       business and in the energy field by being a

         3       member of LIPA, the Long Island Power

         4       Authority, for the last two years.

         5                      Mr. Bennett began his career as

         6       a councilman for the town of Hempstead, moved

         7       to supervisor of that township, a township of

         8       over 800 citizens -- 800,000 citizens,

         9       embracing all of the general problems that

        10       development brings to a government and dealing

        11       with those quite ably for over a decade.  At

        12       the same time, he has been in the practice of

        13       law in the suburbs of New York City, also

        14       running his family business, giving him a

        15       sharp lesson in what it takes to run a

        16       business in the high energy cost area of New

        17       York City.

        18                      For the last few years, he has

        19       served ably through the repercussions that the

        20       Long Island Power Authority has had.  I think

        21       all of this leads him to be ably qualified to

        22       be a recommendation of this body for accepting

        23       the recommendation of the Governor.

        24                      So move.

        25                      ACTING PRESIDENT BALBONI:







                                                          1207

         1       Thank you, Senator Hannon.

         2                      The Chair recognizes Senator

         3       Seward.

         4                      SENATOR SEWARD:  Thank you, Mr.

         5       President.

         6                      I want to echo what Senator

         7       Hannon just said about our nominee, James D.

         8       Bennett, to be a member of the Public Service

         9       Commission.

        10                      Mr. Bennett, two weeks ago,

        11       appeared before our Senate Committee on Energy

        12       and Telecommunications.  We had a wide ranging

        13       discussion with the Committee members on a

        14       whole variety of issues.  Mr. Bennett will be

        15       going on the Public Service Commission at a

        16       very, very critical time, because the

        17       Commission is continuing to implement the

        18       provisions of competitive opportunities for

        19       seeding and also on the telecommunications

        20       side, of course, we've just had the second

        21       anniversary of the passage of a federal

        22       Telecommunications Act which is also doing

        23       much to bring additional competition in the

        24       telecommunications side, so there continue to

        25       be some very serious issues coming before the







                                                          1208

         1       Public Service Commission, and following our

         2       committee meeting, I went away fully confident

         3       that Mr. Bennett would make an outstanding

         4       contribution to this state as a member of the

         5       Public Service Commission.

         6                      On the personal side, obviously

         7       he has a very intelligent and very analytical

         8       mind which is very important.  He has an

         9       outstanding record of public service and,

        10       because of his service as a member of the Long

        11       Island Power Authority, he very quickly has

        12       gained a good working knowledge of the energy

        13       issues under the very difficult circumstances

        14       there on Long Island.

        15                      So I'm very pleased to stand to

        16       second his confirmation and to publicly

        17       congratulate the Governor for making an

        18       outstanding choice and to wish Jim Bennett

        19       well as a member of the Public Service

        20       Commission.  I know the people of this state,

        21       the ratepayers of this state are going to

        22       benefit from his service.

        23                      ACTING PRESIDENT MAZIARZ:

        24       Thank you, Senator Seward.

        25                      Senator Balboni.







                                                          1209

         1                      SENATOR BALBONI:  Thank you,

         2       Mr. President.

         3                      I think it's indeed appropriate

         4       that the first time I address this body it's

         5       on a nomination.  We have a friend and someone

         6       who I've admired for over a decade.  Jim

         7       Bennett represents so many wonderful things

         8       from Long Island and from the state that we

         9       can be proud of and that is readily seeable

        10       when you take a look at his resume:

        11                      A valedictorian from his class

        12       in Cornell.  His father was esteemed surrogate

        13       for Nassau County for many, many years, but I

        14       rise to give you just one other piece that

        15       perhaps you would not see on the resume.  That

        16       is a man with infinite patience, an infinite

        17       ability to accept information, to assimilate,

        18       to consider it and, frankly, to give judgment

        19       not hastily, but with measured and thoughtful

        20       consideration.

        21                      Jim Bennett is going to be a

        22       wonderful addition to the Public Service

        23       Commission because he represents the heart and

        24       soul of what is Nassau County and what is Long

        25       Island and New York.







                                                          1210

         1                      Thank you, Mr. President.

         2                      ACTING PRESIDENT MAZIARZ:  The

         3       question is on the nomination of -- I'm sorry,

         4       Senator Marcellino.

         5                      SENATOR MARCELLINO:  Yes, Mr.

         6       Chairman.

         7                      I couldn't miss the opportunity

         8       to rise in support of a good friend and

         9       colleague in Nassau County government, Jim

        10       Bennett.  Jim Bennett will make an excellent

        11       addition to the Public Service Commission. I

        12       think he will serve this state well and

        13       certainly has served his constituents in the

        14       town of Hempstead very well over the years in

        15       Nassau County.  He's made it a better place to

        16       live, and this is a good thing for the state

        17       of New York and the Governor is to be

        18       congratulated for this fine appointment.

        19                      Congratulations, Jim.

        20                      ACTING PRESIDENT MAZIARZ:

        21       Senator Skelos.

        22                      SENATOR SKELOS:  Mr. President,

        23       it's my pleasure to stand and second the

        24       nomination of Jim Bennett.  Jim Bennett may

        25       have moved to Garden City about 20 years ago,







                                                          1211

         1       but I recall Senator Hannon, he agreed, he

         2       really belongs to Rockville Centre which is my

         3       own home community, the community he grew up

         4       in, where he practices law today, and has

         5       various other interests.

         6                      I've known Jimmy all my life.

         7       My father tells me that, when Jimmy was a

         8       youngster, he used to pull him on his sled

         9       when there was snow, so the Bennetts and the

        10       Skeloses go back many, many years.

        11                      I also know Jimmy to be an

        12       outstanding practitioner of the law.  Gordie

        13       mentioned to me that they went to Cornell Law

        14       School together, and I also know him to be a

        15       man of impeccable integrity and certainly he

        16       will have the interests of the ratepayers not

        17       only of Long Island but of the entire state in

        18       the forefront, in the forefront of his mind

        19       when he makes those very, very important

        20       decisions.

        21                      So, Jimmy, I congratulate you

        22       personally, and I thank the Governor for this

        23       very, very fine nomination.

        24                      ACTING PRESIDENT BALBONI:  The

        25       question is on the confirmation of James







                                                          1212

         1       Bennett as a member of the Public Service

         2       Commission.  All in favor signify by saying

         3       aye.

         4                      (Response of "Aye.")

         5                      Opposed nay.

         6                      (There was no response.)

         7                      James Bennett is hereby

         8       confirmed as a member of the Public Service

         9       Commission.

        10                      Congratulations, Jim, and wish

        11       you a good tenure.

        12                      (Applause)

        13                      Chair recognizes Senator

        14       Stafford.  I'm sorry.  Before that, the

        15       Secretary will read.

        16                      THE SECRETARY:  Senator

        17       Stafford, from the Committee on Finance,

        18       reports the following nomination:

        19                      Member of the Board of Trustees

        20       of the State University of New York, Randy A.

        21       Daniels of New York City.

        22                      SENATOR STAFFORD:  We have some

        23       people not in the chamber.  Could we just lay

        24       that aside for one minute.  People will be

        25       coming in the chamber.







                                                          1213

         1                      ACTING PRESIDENT BALBONI:

         2       Nomination is laid aside temporarily.

         3                      SENATOR STAFFORD:  Just for a

         4       minute.

         5                      ACTING PRESIDENT BALBONI:

         6       Secretary will read.

         7                      THE SECRETARY:  Senator

         8       Stafford, from the Committee on Finance,

         9       reports the following nomination:

        10                      Member of the Board of Trustees

        11       of Cornell University, Jerold R. Ruderman,

        12       Esq., of Scarsdale.

        13                      SENATOR STAFFORD:  Move the

        14       nomination.

        15                      ACTING PRESIDENT BALBONI:

        16       Question is on the confirmation of Randy

        17       Daniels as a member -- I'm sorry, Jerold

        18       Ruderman as a member of the Board of Trustees

        19       of Cornell University.  All in favor signify

        20       by saying aye.

        21                      (Response of "Aye.")

        22                      Opposed nay.

        23                      (There was no response. )

        24                      Jerold Ruderman is hereby

        25       confirmed as a member of the Board of Trustees







                                                          1214

         1       of Cornell University.  Congratulations.

         2                      Secretary will read.

         3                      THE SECRETARY:  Senator

         4       Stafford, from the Committee on Finance,

         5       reports the following nomination:

         6                      Member of the Empire State

         7       Plaza Art Commission, Amy Solomon, of Delmar.

         8                      SENATOR STAFFORD:  Move the

         9       nomination, please.

        10                      ACTING PRESIDENT BALBONI:  The

        11       question is on the confirmation of Amy Solomon

        12       as a member of the Empire State Plaza Art

        13       Commission.  All in favor signify by saying

        14       aye.

        15                      (Response of "Aye.")

        16                      Opposed nay.

        17                      Senator Paterson.

        18                      SENATOR PATERSON:  Mr.

        19       President, I would just like to suggest that

        20       the Committee has made a wise decision.

        21                      ACTING PRESIDENT BALBONI:

        22       Thank you, Senator Paterson.

        23                      As I said, all those in favor

        24       signify by saying aye.

        25                      (Response of "Aye.")







                                                          1215

         1                      Opposed nay.

         2                      (There was no response. )

         3                      Amy Solomon is hereby confirmed

         4       as a member of the Empire State Plaza Art

         5       Commission.

         6                      Secretary will read.

         7                      THE SECRETARY:  Senator

         8       Stafford, from the Committee on Finance,

         9       reports the following nominations:

        10                      Member of the Advisory Council

        11       on Alcoholism and Substance Abuse Services,

        12       Ginay Marks-Landro, of Brooklyn.

        13                      SENATOR STAFFORD:  Move the

        14       nomination.

        15                      ACTING PRESIDENT BALBONI:  The

        16       question is on the confirmation of Ginay

        17       Marks-Landro as a member of the Advisory

        18       Council on Alcoholism and Substance Abuse

        19       Services.  All in favor signify by saying

        20       aye.

        21                      SENATOR GENTILE:  Mr.

        22       President.

        23                      ACTING PRESIDENT BALBONI:  The

        24       Chair recognizes Senator Gentile.

        25                      SENATOR GENTILE:  Thank you,







                                                          1216

         1       Mr. President.

         2                      Just want to commend the

         3       Governor on this appointment.  I know Ginay

         4       Marks-Landro, know her husband.  I know her

         5       son, and she's already served nine

         6       distinguished years on the Governor's Advisory

         7       Council, so I commend him for continuing that

         8       service.

         9                      The past, oh, I'd say 20, 25

        10       years, Ginay Marks-Landro has ably served

        11       Brooklyn as a prevention specialist in drug

        12       and alcohol and other substance abuse

        13       programs.  She has -- she has also designed

        14       and implemented citywide AIDS and suicide

        15       prevention training for the school

        16       administrators and health personnel, and a

        17       prevention -- substance abuse prevention

        18       designed for elementary and junior high

        19       school.

        20                      She has ably served the people

        21       of Brooklyn.  She's ably served on this

        22       advisory council.  She will continue to do

        23       so.  I congratulate her, her family, and, of

        24       course, the Governor for continuing this

        25       appointment.







                                                          1217

         1                      Thank you, Mr. President.

         2                      ACTING PRESIDENT BALBONI:

         3       Thank you, Senator Gentile.

         4                      The question is on the

         5       confirmation of Ginay Marks-Landro as a member

         6       of the Advisory Commission on Alcoholism and

         7       Substance Abuse Services.  All in favor

         8       signify by saying aye.

         9                      (Response of "Aye.")

        10                      Opposed nay.

        11                      (There was no response. )

        12                      Ginay Marks-Landro is hereby

        13       confirmed as a member of the Advisory Council

        14       on Alcoholism and Substance Abuse Services.

        15                      Secretary will read.

        16                      THE SECRETARY:  Senator

        17       Stafford, from the Committee on Finance,

        18       reports the following nominations:

        19                      Members of the Citizens Policy

        20       and Complaint Review Council, Thomas K. Cross,

        21       of LaGrangeville and J. Theodore Hilscher,

        22       Esq., of Catskill.

        23                      SENATOR STAFFORD:  Move the

        24       nomination, please.

        25                      ACTING PRESIDENT BALBONI:  The







                                                          1218

         1       question is on the confirmation of Thomas K.

         2       Cross and Theodore Hilscheer as members of the

         3       Citizens Policy Review and Complaint Council.

         4       All in favor signify by saying aye.

         5                      (Response of "Aye.")

         6                      Opposed nay.

         7                      (There was no response.)

         8                      Thomas K. Cross and Theodore

         9       Hilscher are hereby confirmed as members of

        10       the Citizens Policy Review and Complaint

        11       Council.

        12                      SENATOR SKELOS:  Mr.

        13       President.

        14                      ACTING PRESIDENT BALBONI:

        15       Senator Skelos.

        16                      SENATOR SKELOS:  I believe we

        17       have one more nomination to deal with at this

        18       time.  Would you please call up the nomination

        19       of Randy A. Daniels.

        20                      ACTING PRESIDENT BALBONI:

        21       Secretary will read.

        22                      THE SECRETARY:  Senator

        23       Stafford, from the Committee on Finance,

        24       reports the following nomination:

        25                      Member of the Board of Trustees







                                                          1219

         1       of the State University of New York, Randy A.

         2       Daniels of New York City.

         3                      SENATOR STAFFORD:  Mr.

         4       President, as I mentioned with the previous

         5       nominee, we're very impressed with this

         6       nominee also, and I yield to the Senator from

         7       Suffolk, Senator LaValle.

         8                      ACTING PRESIDENT BALBONI:

         9       Senator LaValle.

        10                      SENATOR LAVALLE:  Thank you,

        11       Senator Stafford.

        12                      Colleagues, we have before us

        13       the nomination of Randy Daniels, and I must

        14       say that the Governor should be congratulated

        15       on this nomination -- nominee.

        16                      The nominee came before the

        17       Higher Education Committee as he did this

        18       morning before the Finance Committee, and I

        19       think anyone who was there and listened to his

        20       presentation would be touched by that

        21       presentation and discussion of talking about

        22       family, being one of ten children and talking

        23       about some of the values that his parents gave

        24       to them in going out into the world, and the

        25       importance of higher education, particularly







                                                          1220

         1       public higher education, that Mr. Daniels is a

         2       product of.

         3                      I think his background is, like

         4       many of the nominees that come before us, just

         5       excellent.  But more than what he has learned

         6       and what he has done is probably the answers

         7       to some of the questions that he gave to the

         8       Higher Education Committee.  It showed deep

         9       sensitivity about the State University, a deep

        10       interest in students, and he made that

        11       eminently clear.  He made it clear that he was

        12       sensitive to those students who had particular

        13       needs, that we should not abandon them and we

        14       should be helpful to them, but he made it

        15       clear that he believed in standards, and that

        16       is very important at this time as we try as a

        17       Legislature to give to the State University in

        18       a fiscal way the things that they need to be

        19       all that they can and should be as a state

        20       university, and so I think Randy Daniel is an

        21       excellent nominee and one that I am asking for

        22       your support as I move the nomination.

        23                      Thank you, Senator.

        24                      ACTING PRESIDENT BALBONI:

        25       Thank you, Senator LaValle.







                                                          1221

         1                      Senator Olga Mendez.  Out of

         2       the chamber?

         3                      SENATOR MENDEZ:  Mr. Chairman.

         4       Mr. President, I also do rise in support of

         5       the nomination of Randy A. Daniels as a

         6       trustee of the SUNY university system and I

         7       want to congratulate very warmly our Governor

         8       for submitting this gentleman to a task that

         9       nowadays has become increasingly difficult.

        10                      Mr. Daniels impressed as

        11       Senator Mendez -- as Senator LaValle

        12       mentioned, impressed everybody with his

        13       presentation. He is a man of clear

        14       intelligence, a man who has been able to

        15       combine, Mr. President, being a workaholic, at

        16       the same time making the time to maintain a

        17       loving family.  His wife and his two daughters

        18       are here today.

        19                      His commitment to public

        20       education and, of course, higher education,

        21       came through very, very clearly, and I think

        22       that -- that our higher educational system of

        23       the state of New York is going to, in fact,

        24       benefit through his services.  I have known

        25       him for a while.  I consider him my friend,







                                                          1222

         1       and he is in a sense one of those wonderful

         2       success stories that we love to hear about

         3       happening to an African-American in our

         4       country.  He was one of ten children.  His

         5       father was a self-supporting man who

         6       maintained a home where the values of hard

         7       work and commitment were stressed.

         8                      So, Mr. President -- so, he's

         9        -- as I said before, his presentation has

        10       been welcomed by everybody and everybody was

        11       impressed.  So, again, it is with pride that I

        12       stand before you in this chamber to support

        13       this nomination.

        14                      Thank you, Mr. President.

        15                      ACTING PRESIDENT BALBONI:

        16       Thank you, Senator Mendez.

        17                      Senator Velmanette Montgomery.

        18                      SENATOR MONTGOMERY:  Yes, thank

        19       you, Mr. President.

        20                      I rise to also second the

        21       nomination of Mr. Daniels.  I am very pleased

        22       to know that we have a person who not only

        23       knows the value of higher education, but is

        24       also very, very much immersed in economic

        25       development in the state of New York, and I







                                                          1223

         1       believe that at this time in our development

         2       and our history that the combination of higher

         3       education and economic development are

         4       paramount to the future of this state; and so

         5       we're very fortunate, I think, to have a

         6       person who knows both of those very well.

         7                      As I said to Mr. Daniels when

         8       we were -- we were voting for his nomination

         9       in committee, that when we came to vote today,

        10       if he would be sitting on the Republican side

        11       of the house and so we can't look at him

        12       directly, but I want him to know that he has

        13       very strong support and admiration and respect

        14       on the Democratic side, and I'm only very

        15       happy to join the Governor in a few of the

        16       things that we totally agree with the Governor

        17       on, and that is this nomination.

        18                      So, Mr. Daniels, we're proud to

        19       be able to vote for you today, and we look

        20       forward to continuing to work with you in

        21       terms of your mission as trustee of State

        22       University, as well as your understanding and

        23       your goal of making that institution the

        24       economic engine of our state.

        25                      Thank you, Mr. President.







                                                          1224

         1                      ACTING PRESIDENT BALBONI:

         2       Thank you, Senator Montgomery.

         3                      Senator Smith.

         4                      SENATOR SMITH:  Thank you, Mr.

         5       President.

         6                      I too rise to second the

         7       nomination of Randy Daniels as a member of the

         8       Board of Trustees of the State University of

         9       New York.

        10                      I too, as Senator Mendez,

        11       consider Randy a friend.  He's a person that

        12       you can pick up the phone and talk to and if

        13       you disagree, he's still willing to listen,

        14       and oftentimes he might even change his mind.

        15                      He is a respected person, not

        16       only in the African-American community, but

        17       all of the communities of the city of New

        18       York.  He's joined today by his lovely wife

        19       and children, who play a major role in his

        20       life and the decisions that he makes,

        21       especially those on behalf of young people.

        22       He knows the struggles that our young people

        23       have in obtaining an education and he will do

        24       the right thing by us and he is making the

        25       decisions that will give them the right to







                                                          1225

         1       have a good education as a move forward in

         2       life.

         3                      I want to thank the Governor

         4       for this nomination because it is truly one

         5       that is deserved, and I know that Randy will

         6       not sell us short and he will always make us

         7       proud and I thank the Governor.

         8                      ACTING PRESIDENT BALBONI:

         9       Thank you, Senator Smith.

        10                      Senator Seabrook.

        11                      SENATOR SEABROOK:  Yes, Mr.

        12       President.

        13                      I rise in seconding this

        14       nomination for the 50th year anniversary of

        15       the State University.  It is certainly apropos

        16       to have an individual such as Randy Daniels to

        17       serve on the board of the State university and

        18       Randy Daniels certainly is one who exemplifies

        19       the qualities that are necessary for the State

        20       University and what it represents, and I think

        21       that here is an individual who has risen above

        22       all expectation, that he has an international

        23       perspective as well as a national perspective

        24       and he has the ability to work across the

        25       board, and Randy must be commended for his







                                                          1226

         1       ability to work with Democrats as well as

         2       Republicans and he has served Democratic

         3       mayors in the past, and I'm certain that he

         4       understands the role and responsibility and

         5       the social commitment in understanding the

         6       creation of the State University, and so I

         7       think that it is certainly a fantastic choice

         8       for an individual who certainly understands

         9       his role and responsibility to the community,

        10       and he's also a good church member as well.

        11       He served as a deacon in the church and I

        12       think that that's part of his real commitment

        13       and understanding about human faults and human

        14       values and understanding that the policy of

        15       the State University is really to afford those

        16       who are in need in terms of educating and

        17       providing them with the opportunity to be

        18       productive citizens in the state of New York.

        19                      So I rise for this occasion to

        20       say that he is truly a fantastic choice and

        21       one that would represent all of us well as a

        22       member of the State University Board of

        23       Trustees, and may he continue to strive on and

        24       do just as our motto is, to excel and he will

        25       do just that.







                                                          1227

         1                      So, good luck and much success.

         2                      ACTING PRESIDENT BALBONI:

         3       Thank you, Senator Seabrook.

         4                      The question is on -- oh,

         5       excuse me.  Senator Paterson, you wish to

         6       speak on the nomination?

         7                      SENATOR PATERSON:  Thank you,

         8       Mr. President.

         9                      I think everything that needs

        10       to be said has been said.  I'd just like to

        11       get up to add my voice to those who are

        12       supporting Mr. Daniels who hails from my

        13       district and who aspires to the SUNY board.

        14       He has served not only the people of our area

        15       but the people of the state well in many other

        16       capacities, particularly his outstanding work

        17       on the Empire State Development Corporation.

        18       We hope that he will be an independent voice

        19       for children, and that he will speak to the

        20       needs of those children all over the state.

        21       This has been his history.

        22                      He combines a rare combination

        23       of skills, those of independence when

        24       necessary and extreme loyalty when necessary,

        25       and we think that his ability to distinguish







                                                          1228

         1       between those elements makes him well

         2       qualified to be a board member, and I'm very

         3       happy, very pleased to welcome him and his

         4       family to the chamber.  They have at times

         5       undergone great adversity, which is something

         6       that I assume has made him stronger.

         7                      Thank you very much.

         8                      ACTING PRESIDENT BALBONI:

         9       Thank you, Senator Paterson.

        10                      The Chair recognizes Senator

        11       Hoffmann.

        12                      SENATOR HOFFMANN:  Thank you,

        13       Mr. President.

        14                      I was very pleased today during

        15       the Finance Committee to hear the responses

        16       that Mr. Daniels gave to a question I raised

        17       about the Ag and Tech schools in New York

        18       State.  Having noted in his resume that he has

        19       had experience in developing countries where

        20       agriculture is clearly the basis of the

        21       economy and survival of the citizens in those

        22       countries and knowing that he had experience

        23       in broadcast journalism covering agriculture

        24       in the Midwest and the automotive industry, I

        25       am especially pleased.







                                                          1229

         1                      Morrisville Agriculture and

         2       Technical College in New York State is the

         3       proud host of a new automotive program.  It is

         4       also one of the foremost agricultural colleges

         5       in the United States, and yes, in years past

         6       we have seen the SUNY administration literally

         7       put the Ag and Tech schools on the auction

         8       block. It was only a couple of years ago where

         9       we fought back a terrible attempt led by some

        10       people in the inner sanctum of SUNY to cut

        11       loose those schools and to instead resort to a

        12       rather out-of-date urban or suburban elitist

        13       approach to education, and important as it is

        14       for everyone to be fluent in foreign languages

        15       and to understand global issues and to speak

        16       in detail about fine literature, it is also

        17       important for us to continue funding those

        18       programs that turn people out who are work

        19       place ready.

        20                      Morrisville has the highest

        21       level of employability upon graduation of any

        22       SUNY school in the system the last I checked,

        23       and I for one am very pleased to see that the

        24       Governor has nominated, and we are about to

        25       confirm an individual who understands and will







                                                          1230

         1       help increase that reliance on our technical

         2       and agricultural institutions, not only the

         3       four-year institutions.

         4                      ACTING PRESIDENT BALBONI:

         5       Thank you, Senator Hoffmann.

         6                      Seeing no other Senators

         7       wishing -- oh, Senator Roy Goodman.

         8                      SENATOR GOODMAN:  Yes, Mr.

         9       President.

        10                      It gives me a great deal of

        11       pleasure to add a word of full support for

        12       Randy Daniels in this important post.  The

        13       State University of New York is obviously a

        14       major educational institution with the

        15       greatest commitment to the public and a man of

        16       diversified background and demonstrated

        17       community concern, I think, serves the public

        18       interest extremely well.

        19                      I've known Mr. Daniels for some

        20       years.  He's been involved in many projects

        21       within the city of New York and I believe that

        22       he will make an excellent addition to the

        23       board, and I'm delighted to second his

        24       nomination.

        25                      ACTING PRESIDENT BALBONI:







                                                          1231

         1       Thank you, Senator Goodman.

         2                      The question is on the

         3       confirmation of Randy A. Daniels as member of

         4       the Board of Trustees of SUNY.  All in favor

         5       shall signify by saying aye.

         6                      (Response of "Aye.")

         7                      Opposed nay.

         8                      (There was no response.)

         9                      Randy A. Daniels is hereby

        10       confirmed as a member of the Board of Trustees

        11       of SUNY.

        12                      Congratulations, Mr. Daniels.

        13                      (Applause)

        14                      Also present in the chamber to

        15       day are Mr. Daniels' wife Jacqueline, daughter

        16       Tori and daughter Ashley.  Welcome and

        17       congratulations.

        18                      (Applause)

        19                      SENATOR SKELOS:  Mr.

        20       President.

        21                      ACTING PRESIDENT BALBONI:

        22       Senator Skelos.

        23                      SENATOR SKELOS:  If we could

        24       return to motions and resolutions, I move that

        25       we adopt the Resolution Calendar in its







                                                          1232

         1       entirety, except for Resolution Number 2744.

         2                      ACTING PRESIDENT BALBONI:

         3       Motion to adopt the Resolution Calendar. All

         4       those in favor say aye.

         5                      (Response of "Aye.")

         6                      Opposed nay.

         7                      (There was no response. )

         8                      The motion is adopted.

         9                      SENATOR GOLD:  Mr. President.

        10                      ACTING PRESIDENT BALBONI:

        11       Senator Gold.

        12                      SENATOR GOLD:  Yes, with the

        13       permission of the Majority Leader, may I offer

        14       a -- with the permission of the Majority

        15       Leader, I have a privileged resolution at the

        16       desk, and I would just move the resolution be

        17       passed.

        18                      SENATOR SKELOS:  No objection.

        19       Will you please read the title and move for

        20       its immediate adoption.

        21                      ACTING PRESIDENT BALBONI:  The

        22       Secretary will read.

        23                      THE SECRETARY:  By Senator

        24       Gold, Legislative Resolution honoring Naomi

        25       Green on the occasion of her designation as







                                                          1233

         1       recipient of the 1998 Humanitarian Award on

         2       Sunday, March 8th, 1998.

         3                      ACTING PRESIDENT BALBONI:

         4       Question is on the resolution.  All those in

         5       favor signify by saying aye.

         6                      (Response of "Aye.")

         7                      Opposed nay.

         8                      (There was no response. )

         9                      The resolution is adopted.

        10                      SENATOR SKELOS:  Mr. President,

        11       would you please take up Resolution Number

        12       2744.  I ask that it be read in its entirety.

        13                      ACTING PRESIDENT BALBONI:

        14       Secretary will read.

        15                      THE SECRETARY:  By Senator

        16       Marcellino, Legislative Resolution 2744,

        17       commending Dr. L. Eudora Pettigrew upon the

        18       occasion of her retirement after 12

        19       distinguished years as president of SUNY

        20       College at Old Westbury.

        21                      WHEREAS, it is the practice of

        22       this legislative body to take note of and

        23       publicly acknowledge individuals of remarkable

        24       integrity and character whose endeavors have

        25       enhanced the growth of education in this great







                                                          1234

         1       state; and

         2                      WHEREAS, Dr. L. Eudora

         3       Pettigrew will be stepping down after 12 years

         4       as president of SUNY College at Old Westbury.

         5       This unique institution has been called the

         6       "People's College" because its mission is to

         7       provide an education for minorities, older

         8       students and others who are not traditional

         9       students; and

        10                      WHEREAS, after 40 years of

        11       service as a higher education professional,

        12       Dr. Pettigrew will retire from her 12-year

        13       role as president of SUNY College at Old

        14       Westbury on June 1st, 1998.  She has spent the

        15       last 24 years of her distinguished career in

        16       academic administration; and

        17                      WHEREAS, in addition to her

        18       tenure at SUNY Old Westbury, Dr. Pettigrew

        19       served six years as Associate Provost at the

        20       University of Delaware and six years as Chair

        21       of the Department of Urban and Metropolitan

        22       Studies at Michigan State University.  Prior

        23       to her years as an administrator, she served

        24       the faculty in both two-year and four-year

        25       colleges as well as in major research







                                                          1235

         1       universities; and

         2                      WHEREAS, during her tenure at

         3       SUNY Old Westbury, Dr. L. Eudora Pettigrew

         4       heightened the visibility of the college by

         5       forging new partnerships with Long Island's

         6       educational, corporate and industrial

         7       communities.  Her leadership also stimulated

         8       growth within the college community where

         9       enrollment increased and new programs were

        10       developed during her administration.  She

        11       expanded the diversity at the college by

        12       revitalizing and initiating faculty and

        13       student exchange programs in Europe and Asia

        14       while working tirelessly to establish

        15       scholarships for students who otherwise could

        16       not study abroad; and

        17                      WHEREAS, in 1994 as a member of

        18       the Board of Directors of the American

        19       Association of State Colleges and

        20       Universities, and a member of the AASCU

        21       Committee on International Education, Dr.

        22       Pettigrew led an AASCU delegation of

        23       university presidents on a trip to China.  In

        24       1995, as Chair of the SUNY Commission on

        25       Africa, she led a SUNY delegation to South







                                                          1236

         1       Africa.  She is currently a member of the

         2       Executive Committee of the International

         3       Association of University Presidents and Chair

         4       of the IAUP/UN Commission on Disarmament

         5       Education, Conflict Resolution and Peace.  She

         6       has addressed major conferences in Russia,

         7       Taiwan, China, Japan, Spain, Egypt, and

         8       Palestine, and she developed and chaired a

         9       workshop on conflict resolution at the United

        10       Nations Women's World Conference in Beijing in

        11       1995; and

        12                      WHEREAS, the Economists Allied

        13       for Arms Reduction invited Dr. Pettigrew to

        14       serve on its advisory committee and the UN

        15       Secretary General and the Secretary General of

        16       UNESCO have appointed her to a commission to

        17       make an in-depth study of the University of

        18       Peace in Costa Rica; and

        19                      WHEREAS, in October 1997 Dr. L.

        20       Eudora Pettigrew was named a Distinguished

        21       Alumna of Southern Illinois University; and

        22                      WHEREAS, Dr. Pettigrew's

        23       retirement as president of SUNY College at Old

        24       Westbury is a transition point in her

        25       remarkable career as she moves on to serve the







                                                          1237

         1       international higher education community.  The

         2       students at SUNY Old Westbury, however, will

         3       continue to benefit from her vision, her 12

         4       years of dedication to the college, and her

         5       legacy of academic excellence.

         6                      NOW, THEREFORE, BE IT RESOLVED,

         7       that this legislative body pause in its

         8       deliberations to commend Dr. L. Eudora

         9       Pettigrew upon the occasion of her retirement

        10       for her significant contributions to the field

        11       of education in New York State; and

        12                      BE IT FURTHER RESOLVED, that a

        13       copy of this resolution, suitably engrossed,

        14       be transmitted to Dr. L. Eudora Pettigrew.

        15                      ACTING PRESIDENT BALBONI:

        16       Senator Skelos, on the nomination.

        17                      SENATOR SKELOS:  Mr. President,

        18       before you recognize Senator Marcellino, there

        19       will be an immediate meeting of the Consumer

        20       Protection Committee in the Majority

        21       Conference Room.

        22                      ACTING PRESIDENT BALBONI:

        23       There will be an immediate meeting of the

        24       Consumer Protection Committee in the Majority

        25       Conference Room.







                                                          1238

         1                      Senator Marcellino.

         2                      SENATOR MARCELLINO:  Thank you,

         3       Mr. President.

         4                      Mr. President, I am proud to

         5       rise and speak on this nomination -

         6       nomination! -- this resolution because this is

         7       a resolution honoring a person who is engaged

         8       in a profession that I consider one of the

         9       most honorable, and that is the education

        10       profession. With all due respect to my friends

        11       in other professions, this one is mine and Dr.

        12       Pettigrew is a unique individual.

        13                      She took over a university that

        14       was in decline and was having major problems

        15       and in a period of time when money to

        16       institutions like it was also in decline. She

        17       turned it around. She turned it around, and it

        18       became known in the community as the "People's

        19       College" because she's a people person.  She

        20       knows how to reach out.  She knows how to make

        21       things happen.  She reached out into

        22       communities and told people who otherwise

        23       would not have an opportunity to go to college

        24       that you can come here, and this is a place

        25       for you, and this will always be a place for







                                                          1239

         1       you here.  But -- and it was a big but, there

         2       are no free rides.  If you come here, we'll

         3       give you every opportunity and all the

         4       assistance you need, but you're going to have

         5       to produce and maintain standards, and she has

         6       always stood for that and her university has

         7       always stood for that, and during her 12-year

         8       tenure that university has improved and

         9       enrollment has gone up and it is a proud place

        10       to be, and it's in my district, and I'm proud

        11       to represent it.

        12                      Dr. Pettigrew is a credit to

        13       the educational community.  She's a credit to

        14       the people of the state of New York and as a

        15       president, she's a credit to her profession

        16       and I respect her.  I wish her well.  The

        17       education -- international education

        18       community's gain is our loss in this state.

        19                      She will now have the time to

        20       do what she pleases.  She tells me she likes

        21       to get up early in the morning, as do I, as an

        22       early riser, but now she'll be able to sleep a

        23       little bit later.  I believe around 6:00

        24       o'clock in the morning she'll be able to

        25       sleep.  This is something unique.







                                                          1240

         1                      Dr. Pettigrew is a special

         2       person, and I am proud to recommend the

         3       passage of this resolution.  Dr. Pettigrew, we

         4       don't do too many things around here

         5       unanimously, but this is going to be one of

         6       them.  So, ladies and gentlemen, I urge you to

         7       pass this resolution on behalf of a very

         8       wonderful person and a fine educator.

         9                      Thank you.

        10                      ACTING PRESIDENT BALBONI:

        11       Thank you, Senator Marcellino.  The question

        12       is on the resolution.

        13                      Senator Montgomery.

        14                      SENATOR MONTGOMERY:  Yes.  I

        15       rise again to compliment Senator Marcellino on

        16       honoring this great woman in education, who

        17       has really essentially made Old Westbury what

        18       it is, and has sort of brought along what I

        19       understand to be the youngest and one of the

        20       smaller campuses, brought it into the system

        21       and moved it into a position where it will be

        22       a premier educator of young people into the

        23       next century.

        24                      I know that she has shown an

        25       extreme amount of commitment to young people,







                                                          1241

         1       to students.  She's been here any number of

         2       times to advocate for those students, and she

         3       has a vision which she has worked very hard to

         4       put into place at Old Westbury, and because of

         5       her extensive outreach to those of us who were

         6       not necessarily knowledgeable about Old

         7       Westbury, she's brought that institution alive

         8       for us in terms of making sure that we know

         9       what's happening.

        10                      We know the kinds of struggles

        11       and the kinds of issues and the kinds of

        12       programs that have been -- that have been

        13       brought there by her work; so I'm very, very

        14       honored to have known her as a president, and

        15       as one of the few African-American women to

        16       lead a major institution in this country.  I

        17       admire your work -- her work, and I am very,

        18       very honored and pleased and happy that you

        19       are now going to retire, but I know that

        20       you're going to continue to share your wealth

        21       of wisdom, knowledge and experience with us in

        22       this state and with young people throughout

        23       the country.

        24                      So thank you, Mr. President.

        25                      ACTING PRESIDENT BALBONI:







                                                          1242

         1       Thank you, Senator Montgomery.

         2                      Senator Waldon, you wanted -

         3       did you wish to speak?

         4                      SENATOR WALDON:  I thank you

         5       very much, Mr. President.

         6                      I walked over just to see if

         7       Dr. Pettigrew is the lady I thought she was,

         8       from out at the campus.  She's a super person

         9       and a very enthusiastic leader, and so I'm

        10       just here to say "me too" to all of the

        11       encomiums and accolades that have been

        12       presented on her behalf by my astute

        13       colleagues both from the Island and from the

        14       real center of the universe, Brooklyn.

        15                      Thank you very much.

        16                      ACTING PRESIDENT BALBONI:

        17       Thank you, Senator Waldon.

        18                      The question is on the

        19       resolution.  Will all those in favor signify

        20       by saying aye.

        21                      (Response of "Aye.")

        22                      All those opposed nay.

        23                      Senator Stavisky?

        24                      The resolution is adopted.

        25       Congratulations.







                                                          1243

         1                      (Applause)

         2                      SENATOR STAVISKY:  Mr.

         3       President.

         4                      ACTING PRESIDENT BALBONI:

         5       Senator Stavisky.

         6                      SENATOR STAVISKY: Will the

         7       record reflect had I been in the chamber, I

         8       would have voted for Randy Daniels to be a

         9       member of the Board of Trustees of the State

        10       University of New York, without objection.

        11                      SENATOR SKELOS:  Without

        12       objection.

        13                      ACTING PRESIDENT BALBONI:  Let

        14       the record so reflect.

        15                      SENATOR SKELOS:  If we could

        16       return to the controversial calendar now,

        17       we'll start off with Calendar Number 215, by

        18       Senator Cook.

        19                      ACTING PRESIDENT BALBONI:

        20       Secretary will read.

        21                      THE SECRETARY:  Calendar Number

        22       215, by Senator Cook, Senate Print 5739-A, an

        23       act to amend the Education Law, in relation to

        24       improving school safety.

        25                      SENATOR STACHOWSKI:







                                                          1244

         1       Explanation.

         2                      ACTING PRESIDENT BALBONI:

         3       Explanation has been asked for.  Senator Cook.

         4                      SENATOR COOK:  Mr. President, I

         5       think that it has been evident for many years

         6       that there's a need for this legislation, but

         7       particularly now that we are pressing towards

         8       standards of higher performance in the

         9       schools, it becomes even more important.

        10                      What this legislation attempts

        11       to do is to establish a continuum of

        12       disciplinary procedures within the schools so

        13       that those students who are very seriously

        14       attempting to learn will have the opportunity

        15       to learn in an atmosphere that is conducive to

        16       learning, without being disrupted by fellow

        17       students who do not perhaps have the same

        18       intention or perhaps the same motivation.

        19                      The bill is, as I have

        20       characterized it on other occasions, both a

        21       velvet glove and an iron fist, because we

        22       recognize that there are, in fact, reasons why

        23       sometimes students have behavior problems in

        24       school, and we attempt to deal with those

        25       problems in this bill and in other ways; but







                                                          1245

         1       at the same time the bill insists that

         2       students, when they come into school, when

         3       they walk through that door, that they

         4       recognize that they're no longer on the

         5       street, that they, in fact, are in a place of

         6       learning, that they have a purpose for being

         7       there, and that it is a different atmosphere

         8       than it is when they're outside on the

         9       street.

        10                      So the first provision of the

        11       bill is to require -- and let me -- I guess I

        12       ought to also inject, Mr. President, that much

        13       of what's in this bill is not brand new, that

        14       it is either in its entirety or in pieces

        15       already in effect in many of the school

        16       districts and school buildings around the

        17       state, and we're not really attempting to

        18       reinvent the wheel here, but what we have

        19       tried to do is to organize this into a

        20       comprehensive continuum so that we do affect

        21       this need in a constructive way.

        22                      One of the weaknesses of the

        23       past, in my opinion, has been that we have

        24       been utterly reactive in dealing with what we

        25       have characterized as school violence, and we







                                                          1246

         1       have passed and, in fact, have in this bill

         2       some provisions that deal with school

         3       violence; but the emphasis that we have tried

         4       to take is also in the area of prevention,

         5       dealing with students first at the level of

         6       expectation, so that they know what is

         7       expected of them and, secondly, to deal with

         8       students at that area -- at that point in time

         9       when perhaps they are not conforming to

        10       whatever regulations are necessary for the

        11       operation, the orderly functioning of the

        12       school, and to deal with those at an early

        13       point before they become the kind of violence

        14       problem that they may become later on.

        15                      So we want to look at this as,

        16       if you will, an early intervention system, and

        17       part of the reason of having this law is to

        18       require that the schools first establish their

        19       standards, secondly that they enforce those

        20       standards, whatever they may be, and they will

        21       be by district or by school they will be done

        22       separately and individually, but thirdly that

        23       the students who are then becoming problems,

        24       that they will be identified and hopefully

        25       those problems will be dealt with.







                                                          1247

         1                      The first provision of the bill

         2       then is to require each school to develop a

         3       code of conduct.  Most schools probably

         4       already have these, but it is important that

         5       there, in fact, be written expectations so

         6       that every student, as I have previously said,

         7       understands that there are standards of

         8       conduct that are expected of them when they're

         9       in the school building, that may be different

        10       from what's expected of them on the street or,

        11       in fact, even in their own homes.

        12                      And secondly, that that code of

        13       conduct provide the -- a description of

        14       exactly what the consequences will be when

        15       students do not conform to that code of

        16       conduct, and thirdly, to provide the

        17       information so that every student and every

        18       parent will be advised as to what those

        19       standards are and that they will then know

        20       what the requirements will be.

        21                      Now, the next step down the

        22       road -- and let's assume that there will be

        23       some intermediate steps which we haven't

        24       talked about, because obviously much of what

        25       will happen is rather informal and that is







                                                          1248

         1       that those students who are not able to

         2       conform to the rules will be dealt with by the

         3       teachers.  They will be dealt with in informal

         4       ways in the school system, but we do reach

         5       that point when the student becomes so

         6       disruptive to the classroom that it becomes

         7       necessary for the good of all the other

         8       students in the room, for that particular

         9       student to be excluded from the classroom.

        10                      There has been a great deal of

        11       criticism of this particular provision,

        12       particularly coming, I would say, from the

        13       School Boards Association and from the

        14       Superintendents Association because they have

        15       resisted giving this kind of authority to

        16       teachers, and I understand the concern that

        17       this could be abused.  But there are a couple

        18       of provisions in there that ought to be noted,

        19       and the first being that the building

        20       principal -- that this decision by the teacher

        21       to exclude the student from the classroom for

        22       up to ten days is reviewable by the building

        23       principal, and if the building principal

        24       determines that the -- that the exclusion from

        25       the classroom is not made on good grounds,







                                                          1249

         1       that there is, in fact, some kind of

         2       personality problem on the part of the teacher

         3       that's causing some of this problem or this

         4       difficulty or that the teacher for some reason

         5       is punishing the child for some reason that

         6       has nothing to do with the classroom, that in

         7       fact that principal -- that building principal

         8       has -- has the ability to say no, this child

         9       cannot be excluded from the classroom because

        10       you've not given to me the reason why you sent

        11       this child out of the classroom; and let me

        12       tell you what is currently happening and what

        13       the teachers tell us is the problem right now,

        14       is that all too often the child is sent from

        15       them -- by them to the principal's office.

        16       The principal simply calls them on the

        17       telephone and says, This is your problem.  The

        18       class room is your place.  You have the

        19       responsibility for dealing with disciplinary

        20       problems in your class.  The kid is coming

        21       back to your classroom; and so consequently

        22       the teacher then is caught up in having to

        23       deal with a disciplinary problem that is

        24       robbing all the rest of the students in that

        25       class of their ability to learn in a correct







                                                          1250

         1       learning atmosphere.

         2                      So we've tried to make this

         3       balanced so that first the teacher has the

         4       right to exclude the student, but in fact

         5       there is a check that, if the principal -- the

         6       principal may, in fact, call the teacher in

         7       and say whatever the reasons why you excluded

         8       this child and to make a judgment in terms of

         9       whether that is an appropriate action.

        10                      There is also a hearing process

        11       by which the parent may have a hearing within

        12       72 hours if they do not agree with the

        13       exclusion from the classroom, so that the -

        14       the second echelon, if you will, is there.

        15                      Then we get to the velvet glove

        16       portion of it, which is what I was talking

        17       about before which says that then the school

        18       is required to provide an alternate

        19       educational program for this child.  We really

        20       are not interested in excluding people from

        21       classrooms, and we certainly aren't -- we

        22       certainly are not interested in suspending

        23       them from school, because this only encourages

        24       and reinforces in some of students the desire

        25       to be excluded from the classroom and excluded







                                                          1251

         1       from the school and, more than that, it

         2       doesn't deal with the more basic problem of

         3       why is that child not able to function within

         4       the school setting.

         5                      So we have to provide that

         6       there has to be an alternative.  There has to

         7       be an alternative to the classroom suspension.

         8       The next step then is the ability to actually

         9       suspend the student from the school totally.

        10                      Now, that may be a very subtle

        11       difference, but it still has a kind of a next

        12       step implication, but still within the state

        13       regulations there is a requirement that this

        14       student has to be continued.  The educational

        15       program for the student has to be continued.

        16                      There are those who say this is

        17       terribly expensive.  I think it is, but it is

        18       not, in my opinion, justifiable that -- to

        19       abandon these children simply because we are

        20       not able to deal with them in the regular

        21       classroom setting and, hopefully, it is in

        22       this context that we are then able to

        23       understand to some degree at least why -- why

        24       this particular child can't function in the

        25       setting that -- in the educational settings







                                                          1252

         1       that other children are functioning in.

         2                      So we have reached that point,

         3       and this, I think, really brings us down the

         4       path here of what I would call the

         5       disciplinary portion, and discipline I like to

         6       use in the broadest sense of the term, in not

         7       just enforcing rules, but what the

         8       expectations are, what the standards are,

         9       that's what the relationship is, is to

        10       following a standard and to lay that standard

        11       out, and that's what discipline really is.

        12                      So then we finally do reach the

        13       point of violence inside the school and so we

        14       then have the iron fist portion of the bill,

        15       one portion which is to protect the school

        16       employees by requiring that acts of violence

        17       be reported, and to protect the school

        18       employees from civil liability as they do

        19       report acts of violence, so that the parents

        20       cannot sue the school because the school or

        21       the teacher or another employee reported an

        22       act by the child.

        23                      A second is that these

        24       incidents within the school need to be

        25       reported to the state Education Department so







                                                          1253

         1       that we have a better understanding of exactly

         2       what types of acts of violence are occurring

         3       and how frequently they are occurring. We get

         4       the stories of the isolated incidents and

         5       perhaps we're not getting an accurate picture.

         6       Perhaps there are fewer incidents than we

         7       think there are.  Perhaps there are more.

         8       Perhaps we just need to understand what those

         9       incidents are.

        10                      We make it a felony to assault

        11       a school employee.  The problem with the mis

        12       demeanor provisions that we currently have is

        13       that they don't seem to deter some of the acts

        14       of violence, and let me say that this protects

        15       not just the employee, but it also protects

        16       students.  If someone comes onto the grounds

        17       of the school and does not belong there, and

        18       creates an act against a child who is in the

        19       school, they also have the same penalties

        20       against them.

        21                      And then finally, we try to

        22       deal with the idea of the problem of

        23       possession and use of weapons, particularly

        24       firearms, on school properties, by increasing

        25       the penalties for those particular







                                                          1254

         1       violations.  So I think that is a sort of a

         2       run-through of what the provisions of the bill

         3       are.

         4                      ACTING PRESIDENT BALBONI:  The

         5       Chair recognizes Senator Hoffmann.

         6                      SENATOR HOFFMANN:  Thank you,

         7       Mr. President.

         8                      I want to compliment my

         9       colleague, Senator Cook, who is one of the

        10       most distinguished members of this body, on

        11       having done yeoman service on this issue and

        12       I'm sure that he speaks for all of us in the

        13       chamber today and for thousands of other New

        14       York State residents and parents about our

        15       concern for safety in the classroom and for

        16       the ability of teacheres to be able to teach

        17       without the fear of disruptive students making

        18       their lives difficult.

        19                      I think that there are some

        20       wonderful qualities in this bill, and I think

        21       that the intent to provide a safe learning

        22       environment is one of the most noble things

        23       that we have tackled this legislative session

        24       so far.

        25                      Having said that, however, I am







                                                          1255

         1       at this point compelled to vote against this

         2       particular bill because I believe that it

         3       still needs more work.  I, with all due

         4       respect to Senator Cook and his excellent

         5       staff work in this area, I have to note that I

         6       find it somewhat interesting that even the

         7       most prestigious teachers organizations in

         8       this state have not been inclined to support

         9       the measure. I have no memorandum in support

        10       from NYSUT or from NEA, even though I went to

        11       some pains today to see if they had provided

        12       one.

        13                      I do, however, have a

        14       memorandum in opposition from the New York

        15       State School Boards Association.  I represent,

        16       at last count, 28 different school districts

        17       in the 48th Senate District, and I have great

        18       admiration for the people who are brave enough

        19       to run for board of education. I never had the

        20       guts to run for that particular office.  I

        21       started my political adventures as a member of

        22       the Syracuse City Council, but I know that the

        23       men and women who are willing to serve as

        24       school board members take a great deal of heat

        25       and they also expose themselves to a great







                                                          1256

         1       deal of risk, and if the school boards and the

         2       school districts that will have to address the

         3       legal questions that would arise in the event

         4       that a teacher is charged with having over

         5       stepped his or her jurisdiction through this

         6       measure, should it be enacted into law.

         7                      I'm also aware because of the

         8       School Boards Association memo, aware of the

         9       particular scenario which could occur in which

        10       a principal is actually put on the defensive

        11       and would have to prove that the teacher had

        12       overstepped or had done something wrong.

        13                      Now, I believe all of these are

        14       issues which could be addressed.  I believe

        15       that it's possible for us to come up with a

        16       measure where the state of New York could

        17       provide teachers the ability to have students

        18       removed quickly, promptly, safely from a

        19       classroom when they pose a threat to other

        20       students, but given the very vast scope of

        21       this particular bill before us today and the

        22       noted absence of support from the teachers

        23       themselves, coupled with some very articulate

        24       opposition from school boards which find

        25       themselves in a potential position of







                                                          1257

         1       liability, I would urge my colleagues to

         2       register a no vote.

         3                      ACTING PRESIDENT BALBONI:

         4       Thank you, Senator Hoffmann.

         5                      Senator Leichter.

         6                      SENATOR LEICHTER:  Mr.

         7       President, if Senator Cook would yield,

         8       please.

         9                      ACTING PRESIDENT BALBONI:

        10       Senator Cook, do you yield?

        11                      (Senator Cook nods head.)

        12                      ACTING PRESIDENT BALBONI:

        13       Senator Cook yields.

        14                      SENATOR LEICHTER:  Senator

        15       Cook, Senator Hoffmann has made some of the

        16       points that I was going to make, and let me

        17       just preface my question to you by saying I

        18       appreciate your addressing this problem. It's

        19       a complex, difficult problem, and I know that

        20       you've worked hard on this and are trying in a

        21       very conscientious manner to provide some help

        22       and support for schools throughout this state

        23       and for teachers.  Through my wife, I know

        24       what a difficult and what an important job it

        25       is and maybe sometimes in our effort to try to







                                                          1258

         1       be helpful, we're really creating more

         2       problems, and I think Senator Hoffmann has

         3       dealt with that.

         4                      I'm just somewhat puzzled by

         5       the provision you have.  This is on page 8 in

         6       section 4, the protection of school employees

         7       and others who make a charge where the student

         8       has committed certain offenses, and what

         9       disturbs me is, and what I want to question

        10       you about is, you say that anybody who makes

        11       one of these complaints about a student shall

        12       have immunity from any criminal and/or civil

        13       liability.

        14                      My question to you is, suppose

        15       it turns out that somebody made a charge

        16       maliciously, falsely.  Are you saying that

        17       that person cannot be prosecuted by the

        18       district attorney?

        19                      SENATOR COOK:  Mr. President, I

        20       think this is similar to the provision that we

        21       have with reports of child abuse or other

        22       instances where the -- the report triggers an

        23       investigation and it really is not a criminal

        24       charge per se.  In other words, if a person

        25       goes to the degree where they perhaps were -







                                                          1259

         1       were entering a criminal complaint, then those

         2       issues that you're talking about would enter

         3       in, but the problem that we have encountered

         4       or the schools tell us they encounter, is that

         5       both teachers and administration are somewhat

         6       reluctant to -- to report the incidents to the

         7       district attorney simply because they then, as

         8       the person reporting, end up having to defend

         9       themselves against the very kind of suit that

        10       you're talking about, and that's really the

        11       provision here, that if simply reporting the

        12       incident to the district attorney, which is

        13       then the district attorney's responsibility to

        14       determine whether there's criminal -- actually

        15       any criminal activity cannot -- that they can

        16       not be sued under that circumstance.

        17                      SENATOR LEICHTER:  Mr.

        18       President, if Senator Cook will continue to

        19       yield.

        20                      Senator, I understand what

        21       you're aiming at.  I suggest that you may have

        22       missed the target or that there's a better way

        23       to hit the bull's eye.  I think it's -- you

        24       just provide that in the event of complaint

        25       made in good faith, I think to immunize people







                                                          1260

         1       who make a complaint maliciously knowing of

         2       its falsity, that in those instances the

         3       district attorney will want to prosecute and

         4       should prosecute because this is an open -

         5       this is really an open invitation for those

         6       who are so inclined, and I'm sure there's very

         7       few, but to slander their neighbors, if you

         8       will, or children down the block because

         9       nobody can take any action against them, and I

        10       think that you can cure that just by saying

        11       that it was made in good faith or not made

        12       maliciously.

        13                      You might want to under all

        14       circumstances -- I might support that -

        15       protect them from civil liability because even

        16       if you say as long as it was made in good

        17       faith and somebody is going to bring a

        18       complaint and say it wasn't made in good faith

        19       and that person will have to defend themselves

        20       to that extent, but I think that to preclude

        21       criminal liability or criminal prosecution, I

        22       really think is going too far and I would just

        23       commend that language to you, Senator, because

        24       I think that would cure what I think is a -

        25       is a significant problem with the bill.







                                                          1261

         1                      Mr. President, on the bill,

         2       just very briefly.

         3                      ACTING PRESIDENT BALBONI: On

         4       the bill, Senator Leichter.

         5                      SENATOR LEICHTER:  Senator

         6       Cook, I think that the memorandum in

         7       opposition of the New York State School Boards

         8       Association, I think, really states some very

         9       compelling reasons to be against this -

        10       against this bill.

        11                      I would also point out that not

        12       every instance of violence or not the general

        13       conditions for violence can be cured just by a

        14       code of conduct and stronger discipline, and I

        15       support, by the way, a code of conduct, and I

        16       think discipline is clearly important in a

        17       school setting, but I think some of the

        18       problems we have, particularly in inner city

        19       schools, also relate to the overcrowding, they

        20       relate to the terrible deteriorated condition

        21       of the schools.  They relate to very difficult

        22       conditions that teachers work under. They

        23       relate to the fact that you have students that

        24       English is a second language and we may need

        25       more assistance and help.







                                                          1262

         1                      So there are things that we may

         2       need to do here to support the school system

         3       that cannot be cured just by giving teachers

         4       the authority to throw students out of the

         5       classroom.

         6                      We have a responsibility to put

         7       money into the school system, to try to deal

         8       with some of these problems.  Yes, money can't

         9       cure everything, but you certainly can't cure

        10       it without providing greater monetary support

        11       than we have, and I don't think anybody should

        12       fool themselves by passing this bill or a bill

        13       like this, that you are really making a major

        14       step or conclusive step against violence in

        15       the schools.

        16                      I think, Senator Cook, for the

        17       reasons Senator Hoffmann said and the School

        18       Boards Association, that this bill really

        19       needs more work.

        20                      ACTING PRESIDENT BALBONI:

        21       Thank you, Senators Leichter and Cook. Before

        22       we go on, would my colleagues suffer a brief

        23       interruption to give the stenographer a moment

        24       to collect her thoughts and her paper.

        25                      (Short pause)







                                                          1263

         1                      ACTING PRESIDENT BALBONI:  I

         2       believe we're ready to proceed.  Senator

         3       Montgomery.

         4                      SENATOR MONTGOMERY:  Mr.

         5       President, I rise to join my colleagues,

         6       Senators Hoffmann and Leichter, in expressing

         7       some concern and opposition to this

         8       legislation.

         9                      While I understand what Senator

        10       Cook would like to see his emphasis on, having

        11       the districts in the state develop a code of

        12       conduct, there are some real concerns about

        13       the fact that, one, we are extending the

        14       maximum period of suspension, with little

        15       cause, to ten days from five, and we're also

        16       placing the authority to suspend students from

        17       schools with teachers, pretty much without any

        18       recourse for that student, at least within 72

        19       hours.  For 72 hours, or up to 72 hours or

        20       perhaps even more because the bill says

        21       something about when 72 hours or however long

        22       the parental investigations *** shall upon

        23       request be given an opportunity for an

        24       informal conference with the principal to

        25       discuss the reasons for the removal, within 72







                                                          1264

         1       hours of the pupil's removal or as soon

         2       thereafter as reasonably practicable, so

         3       theoretically it should -- it could take quite

         4       a bit longer than 72 hours.

         5                      The problem with New York City

         6       in particular, Senator Cook, is that as I have

         7       experienced it, particularly and specifically

         8       as a parent, in classrooms, that teachers are

         9       very reactive and overwhelmed with the fact

        10       that they may have a fourth grade with over 30

        11       students, and certainly that's probably not

        12       the experience that you have in districts in

        13       your -- in school districts, in school

        14       classrooms in your district, but it certainly

        15       is in mine and because of that teachers have

        16       very little time and opportunity to spend with

        17       individual students, some of whom may have

        18       issues that bring them to act out, sometimes

        19       in an anti-social way.

        20                      If there was an opportunity for

        21       teachers to refer students to someone who

        22       could work with them individually, it seems to

        23       me that that would be an option that made much

        24       more sense than having them or giving them the

        25       authority to use suspension as a means of







                                                          1265

         1       addressing problems that students may have.

         2                      There are some contradictions

         3       here, one of which I would like to point out

         4       to my colleague and Senator Cook, and that is

         5       on page 7, the bill says that the code of

         6       conduct shall be developed by the board in

         7       consultation with teachers, community members,

         8       parents or students attending such district,

         9       students and any other representatives that

        10       the board deems appropriate, but nonetheless,

        11       the Senator, in the first part of the bill,

        12       gives the teacher the authority to suspend

        13       students for various causes including having a

        14       disruptive student or a student that the

        15       teacher deems to be interfering with academic

        16       work.

        17                      So it seems to me that you put

        18       the cart before the horse.  I certainly

        19       appreciate the provision to develop a code of

        20       conduct in consultation with all of the

        21       members of the school community, inside and

        22       outside, but if we give the teacher the

        23       authority to suspend students, it seems to me

        24       that we set up a situation where automatically

        25       that the teacher is operating outside of what







                                                          1266

         1       may eventually develop as a community code of

         2       conduct and in -- in many instances, it seems

         3       that this might cause a further conflict

         4       between teacher and parent and teacher and

         5       other parts of the community, because the

         6       community already is very suspect of the fact

         7       that there are very many suspensions, and that

         8       very often there are personality conflicts

         9       that arise between students and teachers and

        10       in addition there are students who just act

        11       out because they're expressing other problems

        12       that they have, and that there is no one there

        13       to address those problems and so they are

        14       suspended and all of this eventually evolves

        15       back to being viewed as the fault of the

        16       teacher, and so I don't think, Senator Cook,

        17       we want to set up a situation where we have -

        18       we escalate the sense of alienation of

        19       community from teacher.

        20                      So, for those reasons, in

        21       addition to the reasons expressed so

        22       eloquently by my colleagues, I would oppose

        23       this legislation once again.

        24                      ACTING PRESIDENT BALBONI:

        25       Thank you, Senator Montgomery.







                                                          1267

         1                      Read the last section.

         2                      THE SECRETARY:  Section 22.

         3       This act shall take effect immediately.

         4                      ACTING PRESIDENT BALBONI:  Call

         5       the roll.

         6                      (The Secretary called the

         7       roll. )

         8                      ACTING PRESIDENT BALBONI:

         9       Senator Paterson, to explain his vote.

        10                      SENATOR PATERSON:  Thank you,

        11       Mr. President.

        12                      Quite often, in pieces of very

        13       valuable legislation such as the one that's

        14       set forth today by Senator Cook, there is

        15       somewhat of an over-emphasis on what would be

        16       the principle of the legislation and perhaps a

        17       cursory development of the substantive changes

        18       that need to be made.

        19                      This is an excellent bill that

        20       comes at a time when teachers in our

        21       classrooms need greater protection and we need

        22       greater enforcement, I guess, against those

        23       who would restrict not only their ability to

        24       teach but of the other students to learn.

        25       However, I see some issues in this particular







                                                          1268

         1       legislation involving due process, the fact

         2       that, for instance, students can be suspended

         3       for up to ten days without a hearing

         4       arbitrarily through the decision of one

         5       teacher.  Everyone is fallible and this is why

         6       we try not to make these decisions

         7       independently, and I think that this needs to

         8       be addressed along with some other changes.

         9                      I'm going to vote for the

        10       legislation because of the content of its

        11       protections and the value that we are trying

        12       to establish in having a strict enforcement of

        13       rules in our school system.  I understand that

        14       the Assembly is also going to pass similar

        15       legislation, and hopefully with the conference

        16       committees that the Majority Leader and the

        17       Speaker have worked to develop over the past

        18       three and a half years, we will be able to

        19       inevitably pass a stronger bill that protects

        20       not only the students but the civil liberties

        21       of all individuals.

        22                      SENATOR GOLD:  Mr. President.

        23                      ACTING PRESIDENT BALBONI:

        24       Senator Gold, to explain his vote.

        25                      SENATOR GOLD:  Thank you, Mr.







                                                          1269

         1       President.

         2                      Mr. President, by coincidence

         3        -- it's good timing, Senator Cook -- by co

         4       incidence some people from the UFT were in to

         5       see me today to discuss school issues, and

         6       it's very difficult to expect teachers to be

         7       able to do all we ask of them, when you have

         8       40 students in a kindergarten class, when you

         9       talk about passing legislation to make smaller

        10       classes, and there's no place for the

        11       classes.

        12                      There was one school that we

        13       were talking about, I think it was P.S. 80 in

        14       Queens -- an excellent school where they have

        15       used the behind the curtain space in the

        16       auditorium for classrooms.  They've taken

        17       classrooms, cut them in half.

        18                      The point is that I believe

        19       teacher safety and student safety is very

        20       important, Senator Cook, and I'm glad that

        21       you're putting this bill forward and, while I

        22       have some questions in my mind about the

        23       propriety of the section as referred to by

        24       Senator Paterson, I too am going to vote for

        25       the bill, but I would urge upon the members of







                                                          1270

         1       this house while you pass this bill with

         2       complete sincerity and understanding, the

         3       problems that have been identified by Senator

         4       Cook, you've got to understand where some of

         5       these problems come from and they have come

         6       from overcrowding.  They have come from

         7       teachers and they have come from safety issues

         8       within the school, and you can't just grab one

         9       of the flags, you've got to grab all of the

        10       flags.

        11                      So I'm really hoping now that

        12       the bond issue went down, the revenue

        13       estimates are out today and they range from, I

        14       think, about 400 million over the Governor's

        15       estimate from the -- from the Assembly side to

        16       a billion three over the Governor's estimate.

        17       I think we ought to be thinking about what are

        18       we going to do to make the schools safer by

        19       getting classroom sizes down and constructing

        20       some new schools.

        21                      I'm going to vote in the

        22       affirmative.

        23                      ACTING PRESIDENT BALBONI:

        24       Thank you, Senator Gold.

        25                      Announce the results, please.







                                                          1271

         1                      THE SECRETARY:  Those recorded

         2       in the negative on Calendar Number 215 are

         3       Senators Hoffmann, Leichter, Mendez,

         4       Montgomery, Sampson, Santiago and submit

         5       Smith.  Ayes 52, nays 7.

         6                      ACTING PRESIDENT BALBONI:  The

         7       bill is passed.

         8                      SENATOR SKELOS:  Mr. President,

         9       would you please call up Calendar Number 21,

        10       by Senator Volker.

        11                      ACTING PRESIDENT BALBONI:  The

        12       Secretary will read.

        13                      THE SECRETARY:  Calendar Number

        14       21, by Senator Volker, Senate Print 3407-A, an

        15       act to amend the Criminal Procedure Law, in

        16       relation to the authority of police officers.

        17                      SENATOR VOLKER:  Mr. President.

        18                      ACTING PRESIDENT BALBONI:

        19       Senator Volker.

        20                      SENATOR VOLKER:  Mr. President,

        21       are you going to ask for an explanation?

        22                      SENATOR GOLD:  Explanation.  I

        23       owe you one.

        24                      SENATOR VOLKER:  Let me just

        25       say, I was reading the transcript from last







                                                          1272

         1       year and realized that this bill passed last

         2       year, the day that I just returned from a

         3       police officer's funeral that had been killed

         4       and there was quite a bit of collateral

         5       discussion on this issue and it is ironic that

         6       here we are almost exactly a year later and

         7       another Buffalo police officer was just killed

         8       last week and was buried this morning.

         9       Although the situation was considerably

        10       different in that the person was pursuing an

        11       individual on foot and he was killed by a

        12       passing car, it remains a very tragic and sad

        13       event, obviously, but I think the real irony

        14       of it is I just happened to look at the

        15       account of last year's debate and I realized,

        16       as you can imagine, it's exactly the same

        17       situation, that is, we are in a Tuesday in

        18       March and that funeral happened earlier in the

        19       day and we are in another Tuesday in March one

        20       year later and the exact same occurrence.

        21                      Anyway, so everybody

        22       understands, this was called -- you will note

        23       this bill was introduced last year -- this is

        24       a Governor's program bill, was introduced

        25       March 4th, '97 and you will note it's an "A"







                                                          1273

         1       print.  Essentially the "A" print is -- it

         2       makes it the Police and Public Protection Act

         3       of 1998 instead of 1997.  I think there was

         4       just one other technical correction.  It is

         5       exactly the same bill as we passed last year.

         6                      You might ask me this question

         7       and I'll answer it right now.  What's the

         8       difference between this bill and the bill that

         9       we passed, I believe about three weeks ago -

        10       two or three weeks ago -- January 27th?  Thank

        11       you, David.  My counsel here just told me

        12       January 27th, my learned counsel, I might

        13       add.

        14                      The first part of the bill is

        15       exactly the same.  It talks about -- we

        16       debated it at great length -- on the issue of

        17       police stops based upon an objective, credible

        18       evidence that -- by a police officer.  The

        19       police must have -- then can act in whatever

        20       is necessary under the circumstances, must not

        21       be arbitrary, capricious, and so forth, but

        22       can act in an objective, credible way.  That,

        23       of course, we debated at great length here

        24       several weeks ago.

        25                      The part of this bill that's







                                                          1274

         1       different is the second part of the bill that

         2       essentially deals with the issue of

         3       suppression of evidence.  There's two parts to

         4       it.  One says that if evidence is suppressed

         5       -- evidence of tangible property is

         6       suppressed, and that's -- I don't think that's

         7       the most controversial part of it -- the court

         8       has to set forth its findings and reasons as

         9       to why the -- it determined that the defendant

        10       did not abandon the property.

        11                      This relates to a number of

        12       cases where defendants have contended in court

        13       the property that was clearly theirs because

        14       they weren't in direct contact with the

        15       property, and I won't get into some of the

        16       cases.  Courts have -- several courts have

        17       determined that they had abandoned the

        18       property.  In other words, one case the fellow

        19       dropped it as he was running and -- running

        20       around the corner and was arrested and they

        21       found, I believe burglary tools or whatever it

        22       was and the judge determined that since they

        23       couldn't directly connect him with that bag

        24       and couldn't absolutely say that that was his

        25       bag, even though the fellow had dropped it and







                                                          1275

         1       there was some evidence that had seen him with

         2       the bag, that it wasn't his and it was

         3       abandoned.  It wouldn't necessarily change

         4       that but it would have the court set forth the

         5       reasons why they determined that the property

         6       was or was not abandoned.

         7                      The second part -- the other

         8       part of the bill, which I suppose is the most

         9       controversial, relates to a series of cases

        10       that relate to the so-called good or bad faith

        11       criteria where a law enforce... where a law

        12       enforcement officer or somebody had evidence

        13       suppressed because the court determined that

        14       there was some sort of technical violation of

        15       the law but where it can be determined that

        16       there was no finding of bad faith but the

        17       person acted in good faith but made some sort

        18       of mistake.  This is called the so-called bad

        19       faith rule.  Virtually the entire country -

        20       the federal government operates under that

        21       provision.

        22                      There had been determinations

        23       by courts in New York that seem to go way

        24       beyond Mapp versus Ohio and People versus

        25       Lauria, which are the major cases in this area







                                                          1276

         1       and say that the New York State Constitution,

         2       they've interpreted it, that it goes beyond

         3       the national -- or the federal Constitution,

         4       even though I might point out, as I think you

         5       are aware -- at least most of you are aware -

         6       the state constitutional language is exactly

         7       the same as the federal constitutional

         8       language on rights.

         9                      So what this bill would

        10       basically do, it says, the bill prohibits the

        11       suppression of evidence based solely upon

        12       allegation, violations of the state

        13       constitutional provision against unreasonable

        14       search procedures or any statutory provision.

        15       The court may suppress in the normal -- under

        16       federal constitutional standards and that, by

        17       the way, is what we debated last year at some

        18       length.  Just so that you know, this bill

        19       passed 39 to 19 after extensive debate and

        20       that is essentially the bill.

        21                      SENATOR GOLD:  Mr. President.

        22                      ACTING PRESIDENT BALBONI:

        23       Senator Gold.

        24                      SENATOR GOLD:  Yeah.  Would the

        25       Senator yield to just a couple of questions?







                                                          1277

         1                      SENATOR VOLKER:  Certainly.

         2                      SENATOR GOLD:  Senator, I'm not

         3       sure I understood the last thing you said.

         4       Are you saying that this prohibits a judge

         5       from suppressing evidence if he feels it's a

         6       violation of the state Constitution?

         7                      SENATOR VOLKER:  No, no,

         8       absolutely not.  Where -- if it's a violation

         9       -- if the determination is that the state

        10       Constitution is superior to the federal

        11       Constitution, that is, if a decision is that

        12       the interpretation is that the state

        13       Constitution somehow supersedes the federal

        14       Constitution, the answer is, in effect, that's

        15       what -- that is true, that we would say that

        16       if it's a violation of the statute, quite

        17       clearly, it could be suppressed and if it's a

        18       violation of the federal Constitution -

        19       constitutional rules which is identical to the

        20       state, clearly it could be suppressed.

        21                      SENATOR GOLD:  Senator, if

        22       you'll yield to one question.

        23                      SENATOR VOLKER:  Sure.

        24                      SENATOR GOLD:  Suppose for the

        25       sake of argument that the highest court in







                                                          1278

         1       this state gets a case where a judge

         2       suppressed something because it's a violation

         3       of the state Constitution and the Court of

         4       Appeals says that your statute here is in

         5       violation of the state Constitution,

         6       therefore, unenforceable, aren't we back to

         7       square one?  The Legislature can't do anything

         8       about that, can we?

         9                      SENATOR VOLKER:  I suppose they

        10       could.  Of course, I would assume that would

        11       be appealed to the Supreme Court which, I

        12       would assume would rule it -- probably rule

        13       that decision as not valid, but you make a

        14       good point.  I suppose that could happen.  If

        15       the Court of Appeals again wants to try to

        16       supersede the Legislature, as in certain cases

        17       it's done -- not very often.  Senator,

        18       remember, these cases are not directly

        19       attacking the Legislature.  They are -

        20       collaterally attack legislation that we've

        21       done.  At the same time they have said that

        22       the state Constitution, even though its

        23       language is identical to the federal, in

        24       effect, is superseding the federal

        25       constitutional rules.







                                                          1279

         1                      SENATOR GOLD:  Mr. President.

         2       Mr. President.

         3                      ACTING PRESIDENT BALBONI:

         4       Senator Gold.

         5                      SENATOR GOLD:  Mr. President,

         6       on the bill.

         7                      I'm just going to address this

         8       point because I know -- I think Senator Waldon

         9       wanted to speak and a few weeks ago when I

        10       debated the other bill, the record will

        11       indicate I made reference to a lot of Senator

        12       Waldon's remarks from last year because I

        13       thought his argument was very excellent.  So

        14       I'm going to leave that to Senator Waldon, but

        15       I just wanted to say, Senator Volker, that

        16       this provision that we just discussed is

        17       really a merry-go-round because I can't

        18       believe the United States Supreme Court would

        19       accept a case where the state Court of Appeals

        20       in New York said that we passed something

        21       which violates the New York State Constitution

        22       and, therefore, they won't enforce it.  I

        23       assume that the United States Supreme Court

        24       will leave that for our court to deal with,

        25       and I would remind you of the law case that







                                                          1280

         1       every, every, every law student remembers,

         2       Marbury versus Madison where the United States

         3       Supreme Court, for the first time, ruled on

         4       this issue of taking power, declaring statutes

         5       unconstitutional and it worked because the

         6       court took away power from itself, and I think

         7       you're creating a similar situation.  I mean,

         8       you're talking about whether we can

         9       effectively tell a court that it can't

        10       exercise what it believes is a constitutional

        11       function, and I don't think we can get away

        12       with that, Senator Volker.

        13                      On the other point on page 2, I

        14       am also a little confused because my

        15       understanding of the law -- and maybe I'm not

        16       understanding your argument -- is if a police

        17       officer sees somebody running away and

        18       throwing something on the ground, I think the

        19       police officer can pick that up and testify

        20       that the person threw it away.  I don't

        21       understand the abandonment argument.  It may

        22       be that I just didn't catch it when you were

        23       putting it forth, but you may want to explain

        24       that, but I'm going to vote against the bill

        25       principally because of page 1 of the bill, as







                                                          1281

         1       I explained it a few weeks ago, and relying

         2       upon what Senator Waldon has said on this in

         3       the past and what he might very well say today

         4       about it.

         5                      ACTING PRESIDENT BALBONI:

         6       Senator Volker.

         7                      SENATOR VOLKER:  Just before,

         8       Senator, let me just respond, if I might, just

         9       to the -- you're right.  My counsel and I were

        10       discussing the issue, and you're right.  The

        11       possibility of a ruling by the Court of

        12       Appeals and then an appeal is very unlikely.

        13       I'm saying that could happen.  What we're

        14       really trying to do here, though, is establish

        15       statutory authority on the suppression issue.

        16                      One of the arguments that have

        17       been made in these courts is, the courts have

        18       said, well, we fall back on the Constitution

        19       of New York absent some statutory authority to

        20       the contrary.  Well, what this really is is

        21       this is statutory authority in a sense to the

        22       contrary.  I mean, I understand what you're

        23       saying is probably true.  You could get in the

        24       merry-go-round effect.  If the Court of

        25       Appeals actually rules and says, we don't care







                                                          1282

         1       what your statute says, our Constitution, we

         2       think gives us authority to supersede the

         3       federal rules, you're probably right.  The

         4       likelihood that the United States Supreme

         5       Court is going to over... it's possible but

         6       more than likely, we -- it's our opinion, and

         7       I think the Governor's opinion and the people

         8       that drafted this bill, that we are creating a

         9       statutory authority here on suppression and,

        10       therefore, saying to the Court of Appeals that

        11       we're not going to argue with you on what the

        12       state or federal does but we're giving you

        13       statutory authority on suppression and we

        14       think the Legislature has the right to do

        15       this.

        16                      ACTING PRESIDENT BALBONI:

        17       Senator Waldon.

        18                      SENATOR WALDON:  Thank you very

        19       much, Mr. President.

        20                      Would the gentleman yield to a

        21       question or two?

        22                      SENATOR VOLKER:  Sure.

        23                      ACTING PRESIDENT BALBONI:

        24       Senator Volker, do you yield?

        25                      SENATOR VOLKER:  Certainly.







                                                          1283

         1                      SENATOR WALDON:  Senator

         2       Volker, we went around Robin Hood's barn last

         3       year on this and it was at times electric and

         4       at times eclectic.  I read the bill again and

         5       I'm as confused this year as I was last year,

         6       and when I look at line 12, on page 1 and it

         7       reads "In addition, when engaged in criminal

         8       law enforcement duties, a police officer may

         9       approach a person in a public place located

        10       within the geographical area of such officer's

        11       employment when he has an objective, credible

        12       reason not necessarily indicative of

        13       criminality and to the full extent permissible

        14       under the Constitution of this state and the

        15       United States may ask such questions and take

        16       such other actions as the officer thinks

        17       appropriate."

        18                      One, in New York City, once an

        19       officer is sworn in as a police officer, every

        20       day until he or she retires after that is 24

        21       hours, 7 days a week a police officer.  So

        22       there is no such time unless they're out of

        23       the jurisdiction or on vacation, not on and

        24       not carrying their shield that they are not

        25       functioning as a law enforcement police







                                                          1284

         1       officer, not peace officer.

         2                      So my question is, would there

         3       ever be a time for my jurisdiction when an

         4       officer would not be engaged under that

         5       circumstance in criminal law enforcement

         6       duties?

         7                      SENATOR VOLKER:  Senator -

         8       excuse me.

         9                      ACTING PRESIDENT BALBONI:

        10       Senator Volker.

        11                      SENATOR VOLKER:  First of all,

        12       I don't agree with that assessment and let me

        13       tell you why.  A police officer is not on duty

        14       24 hours a day.  I know that that is the

        15       methodology, but the truth is that the duty of

        16       a police officer to act relates to what he is

        17       doing as a police officer on duty.  I think it

        18       would be -- I suppose there could be a

        19       situation where a police officer might be -

        20       for some very good reasons might want to act

        21       even while he was not on duty, for instance,

        22       if he sees a felon or something of that

        23       nature, but I think it's pretty clear that -

        24       what we're talking about here, and that's why

        25       this language is quite specific.  It deals







                                                          1285

         1       with a police officer who is acting within his

         2       responsibilities at the time, and I don't buy

         3       the fact that police officers, by the way, are

         4       on duty 24 hours a day.  That's not quite

         5       correct.  The only problem is if you happen to

         6       see a crime committed in your presence, then

         7       as a police officer you are supposed to do

         8       something about it, but you are not supposed

         9       to act as a police officer when you're not

        10       acting as a police officer; in other words,

        11       when you're not actually on duty.

        12                      I think there are some people

        13       who tend to believe that but it's not really

        14       true.  Your duty is to act as a police officer

        15       when you are on duty and you only respond

        16       after that or need to respond after that if a

        17       crime is, in effect, committed in your

        18       presence or if you are -- for some reason,

        19       someone demands that you do something that

        20       needs to be done, but I don't think that -

        21       frankly, to me it's somewhat incomprehensible

        22       that this bill would be used by a police

        23       officer who is not on duty.

        24                      SENATOR WALDON:  Would the

        25       gentleman continue to yield, Mr. President?







                                                          1286

         1                      SENATOR VOLKER:  Certainly.

         2                      ACTING PRESIDENT BALBONI:

         3       Senator Volker, do you continue to yield?

         4                      SENATOR WALDON:  I don't want

         5       to split hairs with you, Senator Volker, but

         6       it is my understanding -- and I have not been

         7       a police officer since 1975 -- that if you are

         8       out in the street, you finish your tour of

         9       duty, it's the weekend and you're off and

        10       something occurs which requires police

        11       presence and action, you are automatically on

        12       duty, and I do know from the trial room that

        13       officers who fail to act, that is, when I was

        14       still a police officer, fail to act, were not

        15       in uniform but sworn police officers for the

        16       city of New York, are subject to severe

        17       penalty, but let me move along to where I

        18       would like to solicit and elicit some

        19       edification, if you would be so kind.

        20                      Is there a time when the police

        21       officer is enforcing the laws which are not

        22       criminal law under this particular proposal?

        23                      SENATOR VOLKER:  I don't think

        24       this really has anything to do with what sort

        25       of laws you're enforcing.  I think, in fact,







                                                          1287

         1       you have to look at this in terms of a

         2       reasonable and prudent person.  If there is no

         3       -- remember what we're saying here.  We're

         4       talking about a reasonable -- an objective,

         5       credible reason.

         6                      What we're trying to do here is

         7       to realize that we have professional police

         8       officers -- and I think the interesting thing

         9       about this, a lot of the criticism is that

        10       police officers do wrong things.  Well, then

        11       if they do wrong things, then they're not

        12       acting objectively and credibly and,

        13       therefore, they are subjected to the kind of

        14       cases that are some of these cases that we're

        15       talking about where they could lose the case.

        16       In fact, they could be brought up on charges

        17       in certain cases, whatever.

        18                      So what we're talking about

        19       here is a reasonable police officer acting in

        20       a reasonable manner, and I think the problem

        21       is we try to conjure up improper police

        22       procedures and all that sort of thing.  If

        23       they are, then they're subject to the same

        24       problems that certain police officers would

        25       have now, and this wouldn't give them any







                                                          1288

         1       particular additional powers if they don't act

         2       in a proper and objective manner.

         3                      SENATOR WALDON:  Would the

         4       gentleman continue to yield?

         5                      SENATOR VOLKER:  Certainly.

         6                      ACTING PRESIDENT BALBONI:

         7       Yes.

         8                      SENATOR WALDON:  Senator

         9       Volker, it reads here, quote, "Credible reason

        10       not necessarily indicative of criminality",

        11       meaning the officer can do something when this

        12       event or this set of circumstances evidences

        13       itself.  Would the officer ever enforce civil

        14       law?  Is there a reason for a police officer

        15       to be involved with anything other than

        16       criminal law?

        17                      SENATOR VOLKER:  I don't think

        18       this has much to do -- I don't think a law

        19       enforcement officer would enforce civil law

        20       and, by the way, especially not off duty.  I

        21       don't think there would be any occasion where

        22       a police officer off duty that I can think of

        23       would be -- unless he's -- for some reason,

        24       someone in the public says something just

        25       happened and that person violated the law or







                                                          1289

         1       whatever.  Other than that, it seems to me

         2       that this is talking about rational police

         3       procedure and acting off duty, for instance,

         4       to take care of zoning violations or things of

         5       that nature, which I assume you're relating to

         6       which is civil, wouldn't seem to fit into

         7       objective, credible kinds of situations, and I

         8       think you would be in the same kind of problem

         9       you would be in right now, by the way, because

        10       a police officer who acts when he's off duty

        11       and doesn't have any, I think reasonable

        12       reason to do so, acts in his own peril.

        13                      SENATOR WALDON:  I'm sorry.

        14                      ACTING PRESIDENT BALBONI:

        15       Senator Waldon, please.

        16                      SENATOR WALDON:  The

        17       conversation, I apologize for jumping, but

        18       would the gentleman continue to yield?

        19                      ACTING PRESIDENT BALBONI:

        20       Yes.  Would you continue to yield, Senator?

        21                      SENATOR VOLKER:  Certainly.

        22                      SENATOR WALDON:  Thank you, Mr.

        23       President.

        24                      ACTING PRESIDENT BALBONI:  My

        25       pleasure.







                                                          1290

         1                      SENATOR WALDON:  Senator, I

         2       guess the point I'm trying to arrive at is

         3       that police officers really only deal with

         4       criminality.  It's not their role to deal with

         5       enforcement of civil statutes.  They don't

         6       take -- summarily take action on the street in

         7       regard to civil violations.  They're not there

         8       to promote tort situations in Supreme Court.

         9       They're there to deal with criminality and if

        10       such is the case, would, one, they ever do

        11       anything other than be aware of criminality

        12       committed in their presence or at least they

        13       thought it was, did someone advise them it was

        14       or it's about to be or their sixth sense as a

        15       police officer tells them it could be, and if

        16       so, would they ask any questions related to

        17       anything other than criminality?  Isn't that

        18       what we're really trying to do as police

        19       officers in this state, to maintain the peace,

        20       to suppress crime, to ensure the safety and

        21       security of neighborhoods and, therefore, the

        22       police are there as our first line of defense

        23       to deal with criminals and criminality.

        24                      SENATOR VOLKER:  Al, I think

        25       some of my former -- my colleague police







                                                          1291

         1       officers would probably say to you that they

         2       would wish all they had to deal with is

         3       criminal conduct.  As you well know, they have

         4       to deal with dogs.  They have to deal with

         5       traffic.  They have to deal with all sorts of

         6       things and police officers, by the way, when

         7       they're on duty, sometimes have to even deal

         8       with zoning violations and all sorts of things

         9       because, as the people who are sort of the

        10       neighborhood eyes and ears at times, they're

        11       asked to get into things that sometimes, I

        12       think law enforcement officers think they

        13       would rather not get into.

        14                      Dog problems, in fact, from the

        15       jurisdiction that I was in, sometimes would

        16       become enormous problems and we couldn't just,

        17       for instance, call the dog warden very easily

        18       because sometimes the dog warden would come,

        19       sometimes it wouldn't come, but my point is

        20       that law enforcement officers, you well know,

        21       get into all sorts of areas short of

        22       criminality and there are times when you have

        23       to ask some people questions that don't relate

        24       necessarily to criminality but may relate to,

        25       for instance, violations of zoning codes and







                                                          1292

         1       things because it just falls to you as part of

         2       your duty as the representative of the

         3       community.

         4                      SENATOR WALDON:  Would the

         5       gentleman, Mr. President, yield once more?

         6                      SENATOR VOLKER:  Sure.

         7                      ACTING PRESIDENT BALBONI:  Yes,

         8       he does.

         9                      SENATOR WALDON:  Thank you, Mr.

        10       President.

        11                      Dale, it hasn't changed from

        12       last year to this year, my concerns, and my

        13       concern last year and this year again is that

        14       this gives license to police officers who have

        15       no cause other than a whim to stop someone, to

        16       question them, to engage them in activity and

        17       to perhaps arrest them where there's no

        18       probable cause, no reasonable suspicion, no

        19       causal factor as historically has been

        20       required in this nation and in this state for

        21       police to stop people while abroad.

        22                      Last year we discussed

        23       momentarily, if I recall correctly, I felt

        24       they could also go to someone's house and

        25       effectuate this and you said, no, that is not







                                                          1293

         1       the case.  So I'm not going to deal with that

         2       this year, but my concern last year was this

         3       license to do whatever one deemed necessary on

         4       a whim not necessarily related to criminality,

         5       and it is my belief that police officers, if

         6       they have reasonable suspicion about a crime,

         7       they should do whatever is necessary, but just

         8       on a whim, it shouldn't be permitted.

         9                      And so I ask you once again,

        10       and I won't revisit this too long; I want to

        11       move on to the second part of the proposal, is

        12       that still the case, that the officer can,

        13       with no real perspective that a crime has been

        14       committed, is about to be committed, could

        15       have been committed, abroad in a public place

        16       can just stop someone because that person

        17       piques his interest?

        18                      SENATOR VOLKER:  Al, if I

        19       thought that that were correct, I wouldn't

        20       sponsor this bill.  I'll be perfectly honest

        21       with you.  If I believed that law enforcement

        22       people could and would stop people on a whim,

        23       credibly -- I'm going to use the word credibly

        24       because that's what we use in this bill -

        25       then I would not sponsor this bill, because I







                                                          1294

         1       do not happen to agree with you that this will

         2       create a major change objectively in what

         3       happens in the street.  I believe that where

         4       this may create a change, I say to you once

         5       again, is in how cases are looked at by the

         6       courts.

         7                      I am not foolish enough to

         8       think that any bill that I am going to sponsor

         9       in this Legislature, in my opinion, is going

        10       to make a major change in the streets, unless

        11       maybe it's the death penalty or something of

        12       that nature.  If I thought that this would

        13       encourage bad police officers and allow them

        14       to do things that they shouldn't do in the

        15       street, I would not even sponsor that bill.

        16                      I believe this bill, more than

        17       just not allowing that, I think will create a

        18       better situation with police officers in the

        19       street and would allow them a more rational

        20       ability to deal with difficult situations in a

        21       more rational way and if they don't deal with

        22       it in an objective, credible way, then they're

        23       going to run into the same problems that some

        24       have run into under the old law, and in all

        25       honesty, they deserve to, because what we're







                                                          1295

         1       looking for here is rational conduct.  We're

         2       not looking for any kind of situation where

         3       we're giving more police powers.  What we are

         4       trying to do is to develop a more rational

         5       ability to conduct discussions in the street

         6       than has been occurring now because of what

         7       some of the interferences that has occurred

         8       from the courts.

         9                      SENATOR WALDON:  Would the

        10       gentleman continue to yield, Mr. President?

        11                      ACTING PRESIDENT BALBONI:

        12       Senator Volker, do you continue to yield?

        13                      SENATOR VOLKER:  Sure.

        14                      ACTING PRESIDENT BALBONI:  The

        15       Senator continues.

        16                      SENATOR WALDON:  Thank you.

        17                      If we may, Senator, I would

        18       like to go to the second page of your

        19       proposal, line 15, and what in essence says

        20       that if an officer violates previously

        21       understood in this nation and in this state

        22       constitutional guarantees against illegally

        23       seized evidence, that the judge cannot bar

        24       that evidence from the proceeding, meaning

        25       that evidence can't be suppressed because it







                                                          1296

         1       was tainted by illegal seizure.  Is that still

         2       your understanding of what's provided here,

         3       and that is the intent of what you're

         4       providing here?

         5                      SENATOR VOLKER:  No.  The

         6       intent is to conform New York law to standard

         7       procedures across the country in what is the

         8       federal statute in Mapp versus Ohio, and that

         9       is that -- and that is to eliminate something

        10       that has occurred.  A number of cases in New

        11       York that seems to indicate that the courts

        12       have ruled that even if there is no showing of

        13       bad faith, that items can be -- can be

        14       excluded or can be suppressed, evidence can be

        15       suppressed because there was some -- something

        16       improperly done not going to the heart of the

        17       case because obviously if it's shown that the

        18       person's constitutional rights were clearly

        19       violated under the federal Constitution, that

        20       evidence has to be excluded, but what this -

        21       what this is saying here is that we're going

        22       beyond the federal Constitution and,

        23       therefore, that the state law -- we're putting

        24       in statute that state law should be, in

        25       effect, in concert with the rest of the







                                                          1297

         1       country and should not go beyond what the rest

         2       of the country is considering in these kind of

         3       cases.

         4                      SENATOR WALDON:  Thank you very

         5       much, Senator Volker.

         6                      Mr. President, on the bill.

         7                      ACTING PRESIDENT BALBONI:

         8       Senator Waldon, on the bill.

         9                      SENATOR WALDON:  Last year,

        10       Dale, when we went around this, I believe, if

        11       I recall correctly, I spoke of some situations

        12       I witnessed with my eyes, personally observed,

        13       where on the corner of 222nd Street and 116th

        14       Avenue was one and the other one was in Nassau

        15       County, police officers stopped young black

        16       men driving their autos.  In one situation it

        17       was a salt and pepper team -- that's the one

        18       which occurred on my corner -- and the other

        19       situation, the officers were white.  In both

        20       instances they stopped the car, removed the

        21       passengers, searched the passengers, searched

        22       the car, trunk, glove compartment, under the

        23       seats and then told the young men, you can

        24       leave.

        25                      I was able to get to the first







                                                          1298

         1       car in time to question the young men myself

         2       and to tell them after they shared their

         3       information that I wished to become their

         4       advocate.  They said they were told there was

         5       a shooting at PS 176, which is about 12 to 14

         6       blocks from my home and that they fit the

         7       description.  I took -- I gave them my phone

         8       number at the district office and asked them

         9       to call me.  I then called the 105th.  There

        10       had been a shooting.  The auto involved was a

        11       red car.  This was a gray car.  The men

        12       described in the shooting were not these two

        13       young men who were college students who were

        14       home on vacation, Christmas break.  Thirdly,

        15       there was no way that from the time of the

        16       shooting and the time of the stop that there

        17       could be any necessary correlation because so

        18       much time had passed and they claimed they

        19       were in hot pursuit.

        20                      In the second situation, the

        21       young man, once I told him I'm Senator Waldon,

        22       Nassau County and I would like to help you, he

        23       said, I don't want any problems.  These guys

        24       will come and haunt me if I get involved with

        25       you, and he took off.







                                                          1299

         1                      The other two young men never

         2       called, even though I gave them the DO phone

         3       number, told them what I would be prepared to

         4       do for them.  So the sergeant on duty repaired

         5       to my home and tried to brush off what had

         6       happened.  I had a conversation with the then

         7       precinct commander and advised him that, you

         8       know, this was wrong and the falsification of

         9       the process and the records was wrong and he

        10       gave me his word that he would try everything

        11       he could to stop it but we couldn't find the

        12       officers who were involved.  They were the

        13       prime combat unit.

        14                      Most complaints I receive in my

        15       district office, which is located in St.

        16       Albans, and if you walk two blocks from where

        17       I am, the homes start at 500,000, Addison Park

        18       -- start at 500,000 -- is that their children

        19       are on vacation or coming home from vacation

        20       Christmastime and in the summer, driving in

        21       cars their families can well afford to pay

        22       for, are rousted by the police.  They exit

        23       parties from homes in the community and the

        24       police stop and search them, put their hands

        25       in their pockets.  These are young men, some







                                                          1300

         1       of whom are like my son and his friends,

         2       graduated from Yale, Harvard, future doctors,

         3       future business people.  This is not a

         4       neighborhood replete with criminals, but there

         5       are officers who feel with the current law,

         6       not what you're proposing, Senator, with the

         7       current law, that they have a license to

         8       search these young men and to search their

         9       vehicles.

        10                      My fear is if they are

        11       violating constitutional intent now, if we

        12       give them further license, how far will they

        13       take their illegal searches and seizures?  How

        14       many other young, innocent black men will be

        15       intimidated because a zealous police officer

        16       decides to stop him and question him?

        17                      The parents in my community are

        18       in a state of frenzy about this situation.  I

        19       have had meetings with 105, the 113th, the

        20       103rd, the 100th, the 101st precinct

        21       commanders.  I've had meetings with the

        22       borough commander, borough commander south and

        23       north, all of them, Charlie Mattice has been

        24       in consultation with me constantly about this

        25       issue.  It may not be happening in Whitestone.







                                                          1301

         1       It may not be happening in Forest Hills.  It

         2       may not be happening in Bayside or Bayside

         3       Harbor, but it is happening in St. Albans and

         4       Cambria Heights, Queens Village, Rochedale

         5       Village, Rosedale and the Rockaways.

         6                      Now, when you get out to the

         7       poor neighborhood out in the Rockaways where

         8       the projects are, it is unbelievable what the

         9       cops are doing, unbelievable at times.  That

        10       doesn't mean every police officer, and I am

        11       not trying to indict all police officers.

        12                      What I'm saying is that there

        13       is an element in the police force which feels

        14       it has a license to do all of these things

        15       which are, in my opinion, in violation of

        16       constitutional guarantees and the true intent

        17       and letter of the law.

        18                      So I don't think we have to

        19       give them greater power.  If we want a police

        20       state, give them the power.  If we want

        21       fascism, give them the power, but if what we

        22       want is for this state and this nation to

        23       stand for what it has at least theoretically

        24       stood for for a long, long time, I think this

        25       is the wrong course of action to take and for







                                                          1302

         1       that and all of the other reasons I gave you

         2       last year, despite my admiration and respect

         3       for you, I can't go along with you again.

         4                      I'll have to vote in the

         5       negative.

         6                      Thank you very much, Mr.

         7       President.  Thank you, Senator Volker.

         8                      ACTING PRESIDENT BALBONI:  Read

         9       the last section.

        10                      Senator Paterson.

        11                      SENATOR PATERSON:  Thank you,

        12       Mr. President.

        13                      I just have a couple of

        14       questions for Senator Volker.  I'll try to be

        15       brief.

        16                      ACTING PRESIDENT BALBONI:

        17       Senator Volker, will you yield?

        18                      SENATOR VOLKER:  It's a

        19       privilege.

        20                      SENATOR PATERSON:  Through you,

        21       Mr. President.  Senator, you discussed

        22       bringing New York State in what you termed

        23       compliance with the other states with respect

        24       to the test for the suppression of evidence,

        25       and I somewhat wish you would explain that







                                                          1303

         1       because my interpretation of what we have now

         2       is basically a two-prong system in which the

         3       police must reach a certain threshold before

         4       it is viable legally to conduct the kind of

         5       search that they do.

         6                      The other states have really

         7       what is a good faith test which is that as

         8       long as the police officer showed good faith,

         9       perhaps the states will accept it.  What it

        10       appears exists in this legislation is that

        11       we're going beyond the good faith test to a

        12       level which is higher, to a higher threshold

        13       where you must prove bad faith on the part of

        14       the police officer, something that I don't

        15       know how a defendant would be able to prove in

        16       order to show that there was an unreasonable

        17       search.

        18                      Don't you think that goes

        19       beyond what is existing in most of the other

        20       states where the federal test applies?

        21                      SENATOR VOLKER:  Senator, I

        22       don't agree with you.  In fact, let me say,

        23       let's not mix the two issues here, the issue

        24       of objective, credible, as far as the stop.

        25       Let's talk about -- I guess we're talking







                                                          1304

         1       about suppression.

         2                      What we are trying to do here

         3       is establish a statute that, from what I

         4       understand, is very, very close to what

         5       statutes -- that are statutes in a number of

         6       the states and which will comply -- which

         7       basically sets us into a situation where we

         8       are still governed, quite clearly, by federal

         9       -- the federal rule on searches and seizures

        10       and the reason we are using the terms is

        11       because these are terms that are used in a

        12       number of cases, in fact, have been used in

        13       some of the cases that the courts -- certain

        14       cases have used here, I think even in New

        15       York, if I'm not mistaken, but which is not

        16       considered to be the general rule now, and

        17       that is if there is a -- what amounts to,

        18       although a violation of a technical rule, very

        19       often these relate to how search warrants are

        20       obtained, for instance, and although the

        21       search warrant was obtained, there might be

        22       something that was not done completely

        23       properly.  So we're saying as long as there

        24       isn't a showing that the police officer or law

        25       enforcement officer, whoever it was, acted in







                                                          1305

         1       bad faith -- and keeping in mind the

         2       situation, we're establishing a statute here

         3       to be used, in effect, by the Court of Appeals

         4       -- I don't think we're certainly establishing

         5       any kind of a situation that would be greater

         6       than any other state in the Union that we are

         7       aware of and, in fact, as I say, it would

         8       level us ultimately with the federal

         9       government, which seems to be the test that

        10       these other places are using.

        11                      SENATOR PATERSON:  Thank you,

        12       Senator.

        13                      If the Senator would yield for

        14       another question.

        15                      SENATOR VOLKER:  Sure.

        16                      SENATOR PATERSON:  The issue of

        17       the credibility of stopping someone extends

        18       beyond what would be means of criminality to

        19       questions the police officer might ask, not

        20       necessarily related to criminality.  I may

        21       have asked you this question on January 21st

        22       and -- but I would ask you again.  What would

        23       you consider a reason for a police officer to

        24       stop a citizen over some issue that does not

        25       relate to criminality?







                                                          1306

         1                      SENATOR VOLKER:  Well, we used,

         2       I think at the time, to question somebody who

         3       may appear to be ill.  There's a series of

         4       things that, under the circumstances, might

         5       cause a reasonable person to stop and question

         6       somebody or check as to the person's

         7       situation, and I use the potential illness -

         8       I use that quite clearly.  I've also used in

         9       the past the person's apparent condition at

        10       the time.  There's a number of things that

        11       could, under the circumstances occur, and it

        12       seems to me that you've got to keep in mind

        13       that this is an objective, credible

        14       evidentiary situation and, as I said to

        15       Senator Waldon, I really do not believe that

        16       this would create any particular change except

        17       that it will create a potential change in the

        18       end result where a case is being tested in the

        19       courts.

        20                      I mean, you know, Senator

        21       Waldon talked about some bad situations.  Bad

        22       situations are bad situations.  We're not

        23       going to -- if somebody is acting

        24       unreasonably, then that is wrong and we are

        25       not going to do anything that is going to







                                                          1307

         1       change that.  They're still going to have to

         2       answer when they -- when they act wrongly, but

         3       we should not make law based on a bad

         4       situation.  We should make law based on the

         5       fact that we're going to try to make sure that

         6       good police officers are given the best

         7       opportunity to fulfill their duties and, you

         8       know, that's at least the opinion, I think of

         9       myself and I think the Governor who sponsored

        10       this bill.

        11                      SENATOR PATERSON:  Mr.

        12       President, I want to thank Senator Volker for

        13       graciously answering these questions and going

        14       through this.  It seems that we -- every two

        15       weeks, we're debating the same issue, and

        16       Senator Volker is always gracious enough to

        17       take our questions.

        18                      He mentioned Senator Waldon's

        19       comments about bad situations and Senator

        20       Waldon was pretty clear delineating some of

        21       the geography in Queens County and the places

        22       where the bad situations occur and the places

        23       where perhaps the conduct of the police

        24       officer is more in compliance with the

        25       standard of professionalism that he observed







                                                          1308

         1       as a police officer for many years in New York

         2       City.

         3                      Senator Waldon was not here on

         4       the day that we discussed this before and what

         5       we talked about in that debate was just the

         6       issue of raising that kind of concern that

         7       Senator Waldon raised, and it's the concern

         8       that there are -- this is a very delicate

         9       balance that we have in what is a democracy

        10       and at the same time trying to execute law

        11       enforcement to its fullest capacity.

        12                      The fact is that there have

        13       been numerous situations with poor law

        14       enforcement in what have been traditionally

        15       under-serviced communities, communities that

        16       are comprised of minorities in this country,

        17       communities that are comprised of individuals

        18       from perhaps a poorer economic standard and

        19       that in those areas, there have been

        20       documented greater incidence of perhaps

        21       over-reaching on the part of police officers

        22       in the execution of law enforcement and that

        23       it has been very difficult traditionally to

        24       try to have some kind of redress for this.

        25                      Back in the mid-'80s, the







                                                          1309

         1       mayor of the city of New York once remarked

         2       that there was a perception of police

         3       brutality, that it really didn't exist.  It

         4       was highly isolated, but that it was something

         5       that was a perception of those who lived in

         6       certain neighborhoods and not two weeks after

         7       he made this comment, there was an incident

         8       involving the use of a stun gun in the 106th

         9       Precinct on April 22nd, 1985 that changed even

        10       the mayor of New York's perception of what

        11       police brutality could be.  In 1991, in March

        12       there was an incident involving Rodney King

        13       that changed the country's perception of what

        14       excessive force might be on the part of police

        15       officers.

        16                      It is not my opinion that any

        17       greater number of police officers discriminate

        18       than any other workers in society.  It is not

        19       my opinion that police officers are any more

        20       biased than any other group in society.  It's

        21       not my opinion that police officers are any

        22       less professional and, in fact, probably are

        23       put in the position of having to display the

        24       highest degree of restraint and

        25       professionalism and patience with the general







                                                          1310

         1       public.

         2                      The issue is that in instances

         3       where there are violations, that these

         4       violations have a strong, strong repercussion

         5       because it is part of that delicate balance

         6       that we try to establish in our society

         7       between the freedoms guaranteed to us by the

         8       Constitution and our desire to protect

         9       individuals from the violation of those

        10       freedoms of other citizens.

        11                      What I see in this legislation

        12       is that in many ways it blurs the translation

        13       of constitutionality when it comes to the

        14       issues of stopping citizens.  This is really

        15       not a piece of legislation that, in my

        16       opinion, relates to criminality.  It's a piece

        17       of legislation that relates to what are the

        18       restrictions of freedoms in society and, as

        19       Senator Waldon said, this is the United States

        20       of America.  We have to not only raise the

        21       flag in some instances, we have to raise them

        22       in all instances.  We cannot allow the

        23       freedoms that are guaranteed to us to be

        24       violated in the fashion that can exist in this

        25       particular legislation and unlike in the







                                                          1311

         1       federal standard right now, that allows for a

         2       good faith exception on the part of police

         3       officers.  This bill specifically mentions

         4       that there must be a demonstration of bad

         5       faith on the part of the police officer to

         6       render the investigation to taint the actual

         7       investigation process.

         8                      So what we're actually seeing

         9       is that unless the defendant can show this on

        10       the part of the police officer, which I think

        11       is next to impossible unless the incident was

        12       videotaped, then you're not going to have an

        13       opportunity to really have any redress in

        14       these types of situations.

        15                      There are not many times that

        16       I've chosen to address these types of events

        17       on the floor of this chamber even when I knew

        18       they probably existed, but this is one of

        19       those times that I can address it because of

        20       the overwhelming evidence that Senator Waldon

        21       referred to before.  This is something that

        22       has really created a number of problems in

        23       which I think the police department eventually

        24       is victimized just as much as our society is

        25       because we are trying to exact standards that







                                                          1312

         1       really go over the line when we compare them

         2       to what is adequate in a democracy.

         3                      When we take evidence under

         4       Section -- Article I, Section 12 of the

         5       Constitution which has language that is

         6       exactly duplicating that which exists in the

         7       Fourth Amendment and try to undermine it

         8       through the kind of legislation that the

         9       Governor's proposing in this particular

        10       instance, we are really trampling on some of

        11       the most delicate protections that are -- that

        12       exist in our Constitution.

        13                      Right now historically crime is

        14       on -- is on the demise.  Police officers have

        15       exercised their authority quite well in terms

        16       of reducing crime and being effective.  There

        17       is -- there's no overwhelming public policy

        18       that shows that there is a need to pass this

        19       particular piece of legislation.  There have

        20       not been violations to the rights of police

        21       officers, particularly where they were trying

        22       to stop individuals because of some cause

        23       related to criminality and to extend to

        24       individuals this kind of power, we think is

        25       certainly unhealthy.  It is not the fault of







                                                          1313

         1       the police that they are human and that they

         2       are fallible, but it is the fault of society

         3       if we don't establish strict protections for

         4       police officers just as we are having strict

         5       protections for private citizens, and so in -

         6       with this piece of legislation, it's just our

         7       opinion that it goes too far.  It's

         8       over-reaching and it has tipped the balance of

         9       what are democratic values in such a way that

        10       any one police officer perhaps out of 1,000

        11       who would violate this standard could cause a

        12       great deal of damage and in my opinion could

        13       compromise the integrity of the police

        14       department itself.

        15                      And so I very much concur with

        16       what Senator Gold and Senator Waldon said

        17       earlier and urge that there not be passage of

        18       this legislation on this vote.

        19                      SENATOR SKELOS:  Last section.

        20                      ACTING PRESIDENT BALBONI:  Last

        21       section.

        22                      THE SECRETARY:  Section 5. This

        23       act shall take effect immediately.

        24                      ACTING PRESIDENT BALBONI:  Call

        25       the roll.







                                                          1314

         1                      (The Secretary called the

         2       roll.)

         3                      SENATOR WALDON:  To explain my

         4       vote.

         5                      ACTING PRESIDENT BALBONI:

         6       Senator Waldon, to explain his vote.

         7                      SENATOR WALDON:  Thoughts of

         8       Senator Paterson triggered my recall that the

         9       Koerner Commission reports from many years

        10       ago, 30 or 31 years ago, said that if we don't

        11       do something in this nation in terms of the

        12       way we are applying the law, the execution of

        13       the law, that we're truly creating a society

        14       separate but equal, one black, one white, and

        15       that is what has happened.  We have now in our

        16       state a drive to create state-of-the-art

        17       prisons but we're not creating sufficiently

        18       state-of-the-art classrooms.

        19                      Most regrettably last year the

        20       people of the state, I believe foolishly,

        21       voted against the bond issue in regard to

        22       restructuring and refurbishing and taking care

        23       of business for our children in regard to

        24       schools.  Huge, huge mistake.  In New York

        25       City alone, we need 600 classrooms per year







                                                          1315

         1       for the next ten years just to stay up, not to

         2       get ahead, just to maintain enough classroom

         3       space for the students who are coming in.

         4                      In regard to legislation of

         5       this nature in this separate but equal

         6       society, New York City is paying out in

         7       settlements for actions of police brutality,

         8       obscene amounts of money.  Despite the fact

         9       that crime is dwindling and despite the fact

        10       that we have a very, very tight hold on crime

        11       from this administration, meaning Mayor

        12       Giuliani's administration, the police are

        13       creating more problems for the City that we

        14       are paying the highest amount in terms of

        15       settlements in the history of New York City in

        16       regard to actions of police abuse.

        17                      So I don't see any need to

        18       continue this separate but equal society that

        19       we are creating.  We are the cream of the

        20       crop.  I think we are the 61 best minds of

        21       this state, with all due respect to my

        22       colleagues in the Assembly, to deal with

        23       thorny issues, issues of great philosophical

        24       concern for our future as a state.

        25                      ACTING PRESIDENT BALBONI:







                                                          1316

         1       Senator Waldon.

         2                      SENATOR WALDON:  But I think

         3       it's a mistake -- 30 seconds, please.  I think

         4       it's a mistake for us to do what we're doing

         5       here today and to not recognize that we failed

         6       to take action 31 years ago regarding the

         7       Koerner Commission report and this is just

         8       another glitch, another bump in the road of

         9       failure.

        10                      I vote nay.

        11                      ACTING PRESIDENT BALBONI:

        12       Thank you, Senator Waldon.

        13                      Senator Dollinger.

        14                      SENATOR DOLLINGER:  To explain

        15       my vote.

        16                      Mr. President, I learned an

        17       interesting lesson in Black History Month.  I

        18       went to a presentation and a young person got

        19       up and read the arrest record of Martin Luther

        20       King, Jr., and my recollection is that there

        21       were at least two instances in which he was

        22       arrested for doing one thing, failing to

        23       follow the direction of a police officer.  The

        24       direction was that you cannot shout out in

        25       protest and that you must leave a public







                                                          1317

         1       place.  That conviction was overturned by, I

         2       believe the Supreme Court of the great state

         3       of Alabama, and rightfully so.

         4                      His rights were violated in a

         5       court in a state that perhaps at that time was

         6       not receptive to the issue of equal rights,

         7       nonetheless recognized that police have no

         8       place in this country telling people that they

         9       cannot exercise their rights given to them by

        10       our Constitution.

        11                      This bill -- and I've talked

        12       before on this floor about the impact it has

        13       on the exclusionary rule which I continue to

        14       support, but it seems to me that if Martin

        15       Luther King, Jr. were standing in this chamber

        16       today and asked to vote on a bill that said a

        17       police officer, without any evidence of

        18       criminality, may ask any question and do

        19       anything else that he considers appropriate

        20       rather than what the Constitution says is

        21       appropriate, is wrong and Dr. Martin Luther

        22       King, Jr. would stand here and vote no, and I

        23       would join him, and I vote no.

        24                      ACTING PRESIDENT BALBONI:

        25       Senator Montgomery, to explain her vote.







                                                          1318

         1                      SENATOR MONTGOMERY:  Yes, Mr.

         2       President, to explain my vote.

         3                      I think perhaps all of us,

         4       certainly I am guilty of the attitude that if

         5       it's not happening to me, it's not happening

         6       and perhaps Senator Volker does not understand

         7       because it probably has never happened to him

         8       or it doesn't happen in his neighborhood or in

         9       his district or in his part of the state to

        10       constituents, but this is the number one issue

        11       in parts of New York State, particularly where

        12       there are black and Latino neighborhoods and

        13       some other groups.  There are also some issues

        14       in terms of Asian communities.  The

        15       relationship between the police and the

        16       community is the paramount issue as has been

        17       pointed out so eloquently by Senator Waldon

        18       and, in fact, it was a major issue with the

        19       Black Panther party and the development of

        20       that party came about specifically because of

        21       this problem and the riots, the subsequent

        22       riots and the incident with Rodney King and

        23       the subsequent riots in Los Angeles, and we

        24       can go on and on with these incidents that

        25       have come about specifically because there is







                                                          1319

         1       a major conflict in the relationship between

         2       law enforcement and the African-American

         3       community and other communities.

         4                      This legislation only would

         5       serve to escalate that kind of relationship,

         6       and I think it is irresponsible to propose

         7       such a bill, to put in statute the authority

         8       for any law enforcement officer to stop people

         9       even if there is no evidence of criminality.

        10       It will signal specifically to the

        11       African-American community that we in this

        12       Legislature do not consider that issue as

        13       important as it is to black people in this

        14       country and as well in this state.

        15                      So I am adamantly opposed to

        16       it.  I think that even police officers would

        17       be opposed to it because they want to improve

        18       the relationship, many of them do, with the

        19       community, and so this is not something, I

        20       think, that is universally desired by law

        21       enforcement.

        22                      So I hope that we will all vote

        23       negative on this legislation today.

        24                      Thank you.

        25                      ACTING PRESIDENT BALBONI:







                                                          1320

         1       Thank you, Senator Montgomery.

         2                      SENATOR MONTGOMERY:  I am

         3       voting no.

         4                      ACTING PRESIDENT BALBONI:

         5       Announce the results.

         6                      THE SECRETARY:  Those recorded

         7       in the negative on Calendar Number 21 are

         8       Senators Abate, Breslin, Connor, DeFrancisco,

         9       Dollinger, Gonzalez, Kruger, Leichter,

        10       Markowitz, Mendez, Montgomery, Nanula,

        11       Onorato, Paterson, Rosado, Sampson, Santiago,

        12       Smith, Stavisky and Waldon.  Ayes 39, nays 20.

        13                      ACTING PRESIDENT BALBONI:  The

        14       bill is passed.

        15                      The Secretary will read.

        16                      THE SECRETARY:  Calendar Number

        17       233, by Senator Johnson, Senate Print 2522-A,

        18       an act to amend the Penal Law, in relation to

        19       including sales of controlled substances as an

        20       underlying offense.

        21                      ACTING PRESIDENT BALBONI:  Read

        22       the last section.

        23                      THE SECRETARY:  Section 3.

        24       This act shall take effect on the first day of

        25       November.







                                                          1321

         1                      ACTING PRESIDENT BALBONI:  Call

         2       the roll.

         3                      (The Secretary called the

         4       roll.)

         5                      THE SECRETARY:  Those recorded

         6       in the negative on Calendar Number 233 are

         7       Senators Leichter, Montgomery and Paterson.

         8       Ayes 56, nays 3.

         9                      ACTING PRESIDENT BALBONI:  The

        10       bill is passed.

        11                      THE SECRETARY:  Calendar Number

        12       280, by Senator Skelos, Senate Print 306, an

        13       act to amend the Criminal Procedure Law, in

        14       relation to limiting plea bargaining for

        15       sexual offenders.

        16                      SENATOR LEICHTER:  Mr.

        17       President.

        18                      ACTING PRESIDENT BALBONI:

        19       Senator Leichter.

        20                      SENATOR LEICHTER:  Yes.  Would

        21       Senator Skelos yield, please?

        22                      SENATOR SKELOS:  Lay it aside

        23       for the day.

        24                      ACTING PRESIDENT BALBONI:  Lay

        25       it aside for the day.







                                                          1322

         1                      THE SECRETARY:  Calendar Number

         2       284, by Senator Skelos, Senate Print 589-B, an

         3       act to amend the Penal Law and the Criminal

         4       Procedure Law, in relation to providing for

         5       life imprisonment for pedophiles.

         6                      ACTING PRESIDENT BALBONI:  Read

         7       the last section.

         8                      THE SECRETARY:  Section 12.

         9       This act shall take effect on the first day of

        10       November.

        11                      ACTING PRESIDENT BALBONI:  Call

        12       the roll.

        13                      (The Secretary called the

        14       roll.)

        15                      THE SECRETARY:  Ayes 58, nays

        16       1, Senator Leichter recorded in the negative.

        17                      ACTING PRESIDENT BALBONI:  The

        18       bill is passed.

        19                      THE SECRETARY:  Calendar Number

        20       288, by Senator Hannon, Senate Print 3660, an

        21       act to amend the Criminal Procedure Law, in

        22       relation to imposing plea bargaining

        23       limitations.

        24                      ACTING PRESIDENT BALBONI:  Read

        25       the last section.







                                                          1323

         1                      THE SECRETARY:  Section 6.

         2       This act shall take effect on the first day of

         3       November.

         4                      ACTING PRESIDENT BALBONI:  Call

         5       the roll.

         6                      (The Secretary called the

         7       roll.)

         8                      THE SECRETARY:  Ayes 58, nays

         9       1, Senator Leichter recorded in the negative.

        10                      ACTING PRESIDENT BALBONI:  The

        11       bill is passed.

        12                      Senator Smith, do you wish to

        13       be counted in the negative on that last bill?

        14                      (Senator Smith shakes head.)

        15                      ACTING PRESIDENT BALBONI:  The

        16       Chair recognizes Senator Smith.

        17                      SENATOR SMITH:  Thank you, Mr.

        18       President.

        19                      I request unanimous consent to

        20       be recorded in the negative on Calendar Number

        21       233.

        22                      ACTING PRESIDENT BALBONI:

        23       Without objection.

        24                      The Secretary will read.

        25                      THE SECRETARY:  Calendar Number







                                                          1324

         1       300, by Senator Nozzolio, Senate Print 177-C.

         2                      SENATOR SKELOS:  Lay it aside

         3       for the day.

         4                      ACTING PRESIDENT BALBONI:  Lay

         5       it aside for the day.

         6                      SENATOR SKELOS:  Mr. President,

         7       is there any housekeeping at the desk?

         8                      ACTING PRESIDENT BALBONI:  Yes,

         9       Senator Skelos.  I'm informed there is some

        10       housekeeping at the desk.

        11                      Senator Montgomery.

        12                      SENATOR MONTGOMERY:  Yes, Mr.

        13       President.  I would like unanimous consent to

        14       be recorded in the negative on Calendars

        15       Number 101 and 231.

        16                      SENATOR SKELOS:  No objection.

        17                      SENATOR MONTGOMERY:  Thank you.

        18                      ACTING PRESIDENT BALBONI:

        19       Without objection.

        20                      SENATOR MONTGOMERY:  Thank

        21       you.

        22                      Senator Montgomery, would you

        23       please give us the number again.

        24                      SENATOR MONTGOMERY:  101 and

        25       Calendar 231.







                                                          1325

         1                      ACTING PRESIDENT BALBONI:

         2       Thank you, Senator.

         3                      SENATOR SKELOS:  Mr. President,

         4       is there any other housekeeping at the desk?

         5                      ACTING PRESIDENT BALBONI:  Yes,

         6       Senator.  We have reports from standing

         7       committees.

         8                      The clerk will read.

         9                      THE SECRETARY:  Senator Alesi,

        10       from the Committee on Consumer Protection,

        11       reports the following bills:

        12                      Senate Print 4266, by Senator

        13       Alesi, an act to amend the General Business

        14       Law;

        15                      4432, by Senator Alesi, an act

        16       to amend the General Business Law;

        17                      4912-A, by Senator Alesi, an

        18       act to amend the General Business Law; and

        19                      5122-C, by Senator Alesi, an

        20       act to amend the General Business Law and the

        21       Executive Law.

        22                      Senator Larkin, from the

        23       Committee on Racing, Gaming and Wagering,

        24       reports:

        25                      Senate Print 4025, by Senator







                                                          1326

         1       Larkin, an act to amend the Racing,

         2       Pari-mutuel Wagering and Breeding Law;

         3                      4174, by Senator Larkin, an act

         4       to amend the Business Corporation Law;

         5                      4186, by Senator Larkin, an act

         6       to Amend the Racing, Pari-mutuel Wagering and

         7       Breeding Law;

         8                      6057, by Senator Hannon, an act

         9       to provide for the claiming and award of a

        10       lottery prize; and

        11                      6077, by Senator Cook, an act

        12       to amend at Racing, Pari-mutuel Wagering and

        13       Breeding Law.

        14                      Senator DeFrancisco, from the

        15       Committee on Tourism, Recreation and Sports

        16       Development, reports:

        17                      Senate Print 4117, by Senator

        18       DeFrancisco, an act to amend the Navigation

        19       Law.

        20                      All bills ordered direct for

        21       third reading.

        22                      ACTING PRESIDENT BALBONI:

        23       Without objection, all bills to third

        24       reading.

        25                      SENATOR SKELOS:  Please







                                                          1327

         1       recognize Senator Present.

         2                      ACTING PRESIDENT BALBONI:

         3       Senator Present.

         4                      SENATOR PRESENT:  Mr.

         5       President, on behalf of Senator Trunzo, on

         6       page 16, I offer the following amendments to

         7       Calendar 267, Senate Print 5322, and ask that

         8       it retain its place on the Third Reading

         9       Calendar.

        10                      ACTING PRESIDENT BALBONI:  The

        11       amendments are received.

        12                      SENATOR PRESENT:  Mr.

        13       President, on page 18, I offer the following

        14       amendments to Calendar 293, Senate Print

        15       4112-A, and ask that it retain its place.

        16                      ACTING PRESIDENT BALBONI:  The

        17       amendments are received and both bills will

        18       retain their place on the Third Reading

        19       Calendar.

        20                      Senator Paterson.

        21                      SENATOR PATERSON:  Mr.

        22       President, first I would like to say that I

        23       thought you did an excellent job today.

        24                      ACTING PRESIDENT BALBONI:  Why,

        25       thank you, Senator.







                                                          1328

         1                      SENATOR PATERSON:  And this

         2       being the birthday of one of our colleagues,

         3       Senator Connor, I know you'll join me in

         4       wishing Senator Connor, who's 28 years old

         5       today, a very happy birthday.

         6                      ACTING PRESIDENT BALBONI:  28

         7       once again.  Congratulations, Senator Connor.

         8                      Senator Skelos.

         9                      SENATOR SKELOS:  Is there any

        10       housekeeping at the desk?

        11                      ACTING PRESIDENT BALBONI:  No,

        12       there is not, Senator.

        13                      SENATOR SKELOS:  There being no

        14       further business, I move we stand adjourned

        15       until Wednesday, March 4th, at 11:00 a.m.

        16                      ACTING PRESIDENT BALBONI:  On

        17       motion by Senator Skelos, the house stands

        18       adjourned until March 4th, at 11:00 a.m.

        19                      (Whereupon, at 5:39 p.m., the

        20       Senate adjourned.)

        21

        22

        23

        24

        25