Regular Session - January 25, 1999
138
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 25, 1999
3:08 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
139
P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance.)
THE PRESIDENT: In the absence of
the clergy, may we bow our heads in a moment
of silence, please?
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: The reading of
the Journal.
THE SECRETARY: In Senate,
Friday, January 22nd, the Senate met pursuant
to adjournment. The Journal of Thursday,
January 21, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, Journal stands approved as read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
140
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Holland,
from the Committee on Social Services,
reports:
Senate Print 16, by Senator
Holland, an act to amend the Social Services
Law;
17, by Senator Holland, an act to
amend the Social Services Law;
18, by Senator Holland, an act to
amend the Social Services Law;
20, by Senator Holland, an act to
amend the Social Services Law and the Workers'
Compensation Law; and
863, by Senator DeFrancisco, an act
to amend the Social Services Law.
Senator Trunzo, from the Committee
on Transportation, reports:
Senate Print 561, by Senator
Fuschillo, an act to amend the Vehicle and
Traffic Law;
562, by Senator Fuschillo, an act
to amend the Vehicle and Traffic Law;
790, by Senator Goodman, an act to
141
amend the Vehicle and Traffic Law.
864, by Senator Johnson, an act to
amend the Vehicle and Traffic Law;
908, by Senator Bruno, an act to
amend the Vehicle and Traffic Law;
909, by Senator Bruno, an act to
amend the Vehicle and Traffic Law;
977, by Senator Johnson, an act to
amend the Vehicle and Traffic Law;
978, by Senator Johnson, an act to
amend the Vehicle and Traffic Law and the
Education Law;
1020, by Senator Skelos, an act to
amend the Vehicle and Traffic Law; and
1076, by Senator Trunzo, an act to
amend the Vehicle and Traffic Law.
Senator Seward, from the Committee
on Insurance, reports:
Senate Print 858, by Senator
Balboni, an act to amend the Insurance Law;
and
Senate Print 1365, by Senator
Seward, an act to amend the Insurance Law and
the Banking Law.
Senator Farley, from the Committee
142
on Banks, reports:
Senate Print 1164, by Senator
Farley, an act to amend the Banking Law and
others;
1165, by Senator Farley, an act to
amend the Banking Law and the Criminal
Procedure Law; and
1222, by Senator Farley, an act to
amend the Banking Law.
Senator Bonacic, from the Committee
on Housing, Construction and Community
Development, reports:
Senate Print 94, by Senator Alesi,
an act to amend the Real Property Law; and
Senate Print 848, by Senator
Holland, an act to amend the Executive Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills directed to third
reading.
Report of select committees.
Communications and reports from
State officers.
Motions and resolutions.
143
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
On behalf of Senator Kruger, I'd
like to move the following bill be discharged
from their respective committees and
recommitted with instructions to strike the
enacting clause. That's Senate 515.
THE PRESIDENT: So ordered,
Senator.
Senator Kuhl.
SENATOR KUHL: Thank you, Madam
President.
I understand we're waiting for a
privileged resolution from Senator Mendez,
that hasn't arrived, and I haven't -- I have
one that's being prepared that hasn't arrived
yet either. But there are some young
individuals in the balcony that I would like
the members of the chamber to recognize.
There is an association in the
State of New York called the New York State
Association of Continuing and Community
Education. And this organization is made up
of about 400 member groups made of school
144
district and BOCES and other not-for-profit
organizations. Well, every year, they pick
from their students, who are being educated,
12 people representing various areas across
the state, and these are -- individuals are
certainly very exemplary students who signify
the important things that are being done in
the educational arena, but they're picked for
their specific ability to enhance their
independence, their self-reliance and their
self-sufficiency. As a result of their
efforts, these outstanding students have
established themselves as role models amongst
the other students who are participating in
this continuing community education.
As I said, we're very privileged
today to be joined by 12 of them, and I would
like to name their names, if I could, their
place and the Senator who represents them.
Coming from Senator Balboni's
district, there's Arely Franco from Great
Neck -
THE PRESIDENT: Senator, do you
wish me to make a ruling on your motion?
SENATOR KUHL: Well, I haven't
145
made a motion yet, your Honor.
THE PRESIDENT: All right. Well,
on your application, at this time, without
objection, you may proceed.
SENATOR KUHL: Thank you, Madam
President.
From Senator Seward's district,
Nick Gurnavage from Oneonta. And from Senator
McGee's district, Pauline Hunt from Jamestown
and Melinda Tunderman from Olean. From
Senator Nozzolio's district, Jennifer Johnson
from Farmington and Randielee Jones from Fort
or Port Gibson. From Senator Wright's
district, Kevin McCarthy from Ogdensburg. And
from Senator Maltese's district, from Richmond
Hill, Hector Perez. From Senator Spano's
district, Ann Marie Scofield from Yonkers.
From Senator Fuschillo's district, from
Freeport, Tina Springer. From Senator
Holland's district, from Spring Valley,
Dehavillin White. And from Senator Trunzo's
district, from East Patchogue, Roxanna Yancy.
And, Madam President, I know
they're in the gallery and, if you could, I'd
like you to extend the well wishes of the
146
Senate to them and certainly congratulate them
on behalf of all the members for the
outstanding achievements that they are
accomplishing in their lives.
THE PRESIDENT: Certainly,
Senator.
Without objection, the President
hereby recognizes these students and I wish
you an enjoyable day and productive visit here
in Albany. Congratulations.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
what's happening right now is, unfortunately,
there's been a little delay on a couple of
resolutions and, normally, we don't have this
procedure without resolutions, but I believe
Senator Mendez's privileged resolution is here
now, so I would ask if we could have it read
in its entirety and moved for its immediate
adoption.
THE PRESIDENT: Thank you,
Senator.
The Secretary will read.
THE SECRETARY: By Senator
147
Mendez, a Legislative Resolution, honoring the
Instituto Duartiano upon the occasion of the
visit of a delegation representing its members
of the New York State Capitol on January 25,
1999.
WHEREAS, It is the sense of this
Legislative Body to recognize those
institutions which represent the rich cultural
heritage of citizens of the State of New York;
and
WHEREAS, This Legislative Body is
honored to welcome a delegation from the
Instituto Duartiano upon the occasion of their
visit to Albany on January 25, 1999; and
WHEREAS, The Instituto Duartiano is
dedicated to maintaining and keeping alive the
life and history of Juan Pablo Duarte, a
deliberator and founder of the Dominican
Republic; and
WHEREAS, This year, 1999, marks the
186th Anniversary of the birth of Juan Pablo
Duarte; and
WHEREAS, The representatives of the
Instituto Duartiano are visiting Albany to
present a portrait of Juan Pablo Duarte to the
148
members of the New York State Legislature who
represent the largest Dominican community in
the State; and
WHEREAS, Accompanying
Mr. Fernandez, President of the Institute
Duartiano, is Mrs. Maldonado, founder of the
Institute and Director of the Central Cultural
Ballet Quisqueya, as well as members of the
committee of the Instituto; now, therefore, be
it
RESOLVED, That this Legislative
Body pause in its deliberations to welcome the
visitors of the Instituto Duartiano upon the
occasion of their visit to the State Capital
in Albany, New York on January 25, 1995; and
be it further
RESOLVED, That copies of this
Resolution, suitably engrossed, be transmitted
to the visitors from the Instituto Duartiano.
THE PRESIDENT: Senator Mendez.
SENATOR MENDEZ: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR MENDEZ: I certainly
appreciate the courtesy that's being extended
149
today to members of the -- to constituents of
mine, who, from the Washington Heights
community, representing very aggressive
community in business activities, in education
and everywhere else. But above all today,
they are visiting this chamber because they
are celebrating the birth of the greatest
liberator in the Dominican Republic, Juan
Pablo Duarte. And Mrs. Normandia Maldonado
and Mr. Fernandez are, precisely, the founders
of that institute. So we are most gratified
that they are -- that their presence here is
being acknowledged. And we appreciate it
enormously.
THE PRESIDENT: Thank you,
Senator.
The question is on the resolution.
All in favor, signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
And I note the presence in the
150
gallery and I welcome you and wish you a good
day and extend to you all the courtesies of
the New York State Senate.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the non-controversial
calendar at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
5, by Senator Alesi, Senate Print 88, an act
to amend the Penal Law in relation to the
minimum sentence upon conviction.
SENATOR MONTGOMERY: Lay it
aside, please.
THE PRESIDENT: The bill will be
laid aside.
THE SECRETARY: Calendar Number
8, by Senator Volker, Senate Print 110, an act
to amend the Penal Law in relation to
determining whether a prior conviction is a
predicate felony conviction.
SENATOR MONTGOMERY: Lay it
aside.
151
THE PRESIDENT: The bill will be
laid aside.
THE SECRETARY: Calendar number
18, by Senator Larkin, Senate Print 173, an
act to amend the Real Property Tax Law in
relation to school districts.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
21, by Senator Marcellino, Senate Print 962,
an act to amend Chapter 581 of the Laws of
1998.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
33, by Senator Seward -
152
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The resolution is
laid aside.
THE SECRETARY: Calendar Number
35, by Senator Skelos, Senate Print 907, an
act to amend the General Obligations Law in
relation to exoneration of certain crime
victims and good samaritans.
SENATOR DOLLINGER: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
37, by Senator Volker, Senate Print 456, an
act to amend the Tax Law in relation to the
imposition of sales and use taxes.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Those recorded in
the negative on Calendar Number 37 are
153
Senators Dollinger, Duane and Gentile.
Ayes 53. Nays 3.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the controversial calendar
at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
5, by Senator Alesi, Senate Print 88, an act
to amend the Penal Law in relation to the
minimum sentence.
THE PRESIDENT: Senator Alesi, an
explanation has been asked for.
SENATOR ALESI: Thank you, Madam
President.
This simply makes a technical
correction to a bill that passed with the
Senators vote a couple of years ago. It
applies the same sentence to those with a
determinate sentence as well as those with an
indeterminate sentence.
THE PRESIDENT: Call the roll.
154
Excuse me. Read the last section.
THE SECRETARY: Section 2, this
act shall take effect the 1st day of November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 5 are Senators
Duane and Montgomery.
Ayes 54. Nays 2.
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR DUANE: Madam President,
I wish to change my vote on item Number 37.
THE PRESIDENT: Before we address
that, Senator, you want to address the bill
that has now been voted upon and we had the
vote on that bill. The bill is passed.
Senator Duane, you may now be
recognized.
SENATOR DUANE: Thank you, Madam
President. Now I rise to request to change my
vote on item Number 37, please, from a no to a
yes.
THE PRESIDENT: Without
objection, your vote is changed from a no to a
155
yes.
SENATOR DUANE: Thank you.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
8, by Senator Volker, Senate Print 110, an act
to amend the Penal Law in relation to
determining whether a prior conviction is a
predicate felony conviction.
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Madam President,
this, this is rather -- this is also a
technical amendment, in one sense. There is
already on the books a statute as regards to
tolling of a predicate felony where a
individual is already in jail.
What happened was that a person who
was in jail escaped while in custody and was
out for, I don't know, five or six years, and
when he was recaptured, there was an attempt
to prosecute him as a predicate felony and the
judge said, although he realized the intent of
the statute may have been to include this sort
156
of thing, that it couldn't be included.
What this bill says is, we don't
increase the tolling. It's still 10 more
years. But if you are in jail and if you
escape from custody or whatever, totaling 10
years, the statute would be 20 years. What
we're really doing is saying, if you escape,
you don't benefit from the time you're out of
jail when you escaped. That's basically what
this statute says.
SENATOR WALDON: Madam President.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Thank you very
much, Madam President.
Would the kind Senator from the
western part of New York yield to a question
or two?
THE PRESIDENT: Senator, do you
yield?
SENATOR VOLKER: I do yield.
SENATOR WALDON: Thank you, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR WALDON: Thank you very
much. Thank you, Madam President.
157
Thank you very much, Senator
Volker.
Senator, just out of curiosity,
does this also include a situation where
someone has been sentenced, has done time,
they're now out on parole, they technically
violate, exit the state and return five, 10
years later?
SENATOR VOLKER: No. It would
only include actual escaping from custody.
And where this is a -- this is somebody who is
either in jail or should be in jail and
escapes from custody. It wouldn't include
parole violations, if that's what you mean.
SENATOR WALDON: One more
question, Madam President -
SENATOR VOLKER: Sure.
THE PRESIDENT: Senator, do you
yield?
SENATOR WALDON: -- if I may.
I assume then -
Thank you, Madam President.
I assume then, Senator, that also
includes any probationary situation would not
be covered by this?
158
SENATOR VOLKER: The reason it
wouldn't is because the person has -- the
reason that there's a tolling at all is that
because this person, although he's been
charged, the law doesn't go through with it
because the person's not available. If the
person is actually in jail, the law wouldn't
go on and move toward, toward a, toward a -
moving the charge. The same thing, of course,
would be true if person escaped from custody,
because they wouldn't be available. But if
it's a mere violation of probation or parole,
that's a whole different issue because they
have actually been -- presumably, they've been
arrested a second time and there wouldn't be
any tolling anyways because they'd be charged
with the predicate felony at that time and
this statute would have nothing to do with it.
SENATOR WALDON: Thank you very
much, Senator.
Thank you, Madam President.
THE PRESIDENT: Senator
Montgomery, why do you rise?
SENATOR MONTGOMERY: I rise to
ask Senator Volker if he would yield to just a
159
question.
SENATOR VOLKER: Why, certainly.
THE PRESIDENT: Senator, you
yield?
SENATOR MONTGOMERY: Okay. Thank
you, Senator Volker.
THE PRESIDENT: All right. You
may proceed, Senator Montgomery. Go ahead.
SENATOR MONTGOMERY: Thank you.
This bill, I'm assuming, tries
to -- you say that it is aimed at a person who
escapes custody. If -- does this cover a
situation where the person does not
necessarily commit any other crime?
SENATOR VOLKER: Oh, no. If they
commit no other crime, they wouldn't be
subject to the predicate felony statute. So
this wouldn't cover it at all. It would only
be where a crime is committed that could be
considered to be used for the predicate
felony; in other words, a persistent violator
statute. So they would have to be in a
position to be charged with a sex -- with a
subsequent serious felony and the fact that
they're either in jail or escaped from custody
160
would prevent that charge from being made.
There's no other way that this statute would
have anything to do with any other person.
SENATOR MONTGOMERY: And the
additional -- it can be an additional 10 years
or an additional five years?
SENATOR VOLKER: Well, here's the
thing. Technically speaking now, you can go
up to 10 years, which would be, in other
words, 20 years in the tolling. That's being
in prison. What we're really doing is
technically adding escaped from custody to the
question of being in jail. It still tolls 20
years, no matter how you, how you set it up.
In other words, it can never be more than 20
years. It's got to be up to 20 years. In
other words, 10 additional years tolling
either for escaped from custody and/or for
being in jail.
SENATOR MONTGOMERY: Thank you,
Senator.
SENATOR VOLKER: You're welcome.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3, this
161
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 55. Nays 1.
Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
The Secretary will read.
THE SECRETARY: Calendar Number
21, by Senator Marcellino, Senate Print 962,
an act to amend Chapter 581 of the Laws of
1998.
SENATOR DOLLINGER: Explanation.
THE PRESIDENT: Senator
Marcellino, an explanation has been requested.
SENATOR MARCELLINO: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR MARCELLINO: Last year,
this Legislative body, both the Senate and the
Assembly, passed Chapter 581 of the Laws of
1998, which currently allows Nassau County to
accept an application for real property
taxation from the Plain Lawn Cemetery. The
162
Chapter that was passed carried with it
certain incorrect references and these, this
bill basically corrects those references.
SENATOR DOLLINGER: Madam
President, if the sponsor will yield to a
question.
THE PRESIDENT: Senator, will you
yield to a question?
SENATOR MARCELLINO: Yes, I will.
SENATOR DOLLINGER: How much is
the total tax break that's granted by this
legislation passing and becoming law?
How much of the taxes are forgiven?
SENATOR MARCELLINO: I, frankly,
do not know, Senator.
SENATOR DOLLINGER: As I
understand it, this bill will affect -
Again, through you, Madam
President, if the sponsor will continue to
yield.
THE PRESIDENT: Senator, will you
yield?
Yes. Go ahead, Senator Dollinger.
SENATOR MARCELLINO: Sure.
SENATOR DOLLINGER: As I
163
understand it, this is a property that was
acquired in 1996. And yet this will include
the '95-96 taxes, the '96 taxes and all of the
'97 taxes as well?
SENATOR MARCELLINO: From my
reading of the bill, Senator, you're right.
The property is a -- rather, the
organization is a not-for-profit organization
and they never should have been collecting
taxes or paying taxes. The property is used
solely as a cemetery. And this is simply
making resolution and making correct that
which was in error.
The technical references that I
referred to before were the bill mentioned -
and this was given to us by the people who are
asking for the legislation -- that they put
the property in the Town of Hempstead and they
made reference to a certain section of the law
which does not quite clearly reference
cemeteries. This property is actually located
in the Town of Oyster Bay and we've corrected
the reference to the section of law.
SENATOR DOLLINGER: Thank you
very much, Madam President. Just on the bill
164
briefly -
THE PRESIDENT: Senator
Dollinger -
SENATOR DOLLINGER: -- I commend
Senator Marcellino for his work on the bill -
THE PRESIDENT: -- on the bill.
SENATOR DOLLINGER: -- this is a
sign of legislative perseverance to make sure
that the information is correct, that they get
the tax treatment that they're entitled to.
Two things about it, however. I
voted against these bills with Senator Cook in
the past because I'm one of those who
continues to believe that, unless we address
the problem of taxable status state for
everybody in this state, what too often
happens, and for some reason I know -- Senator
Skelos, I believe, has carried some bills in
the past that do this. We seem to have this
problem crop up in Nassau County all the time
and we fix it in Nassau County. And my
concern is that this problem is probably
cropping up -- I know it crops up in Rochester
and in Monroe County, and for some reason we
don't seem to get it fixed there. And I would
165
just suggest, there is a tradition in this
House of passing these bills to deal with the
tax status state. And I'm sure, Senator
Marcellino, you know the complications of
that, in the sense that we've established a
system which says that on a specific date
you're entire taxable status is determined by
that date even if your house burns down the
next day, you still pay all the full property
value at that day. Or if it turns out that
you're improperly on the rolls or off the
rolls, you get that benefit for the whole
taxable year.
I would just ask you and others who
have sponsored bills of this type, take
Senator Cook, who's no longer here, and take
me off the hook, put us in a position where we
can pass a bill that creates a statewide
adjustable system for tax status state so that
we don't have to deal with these things on a
case-by-case basis, and worse, we run the
potential that someone will think that Nassau
County can get these problems solved and other
counties in the state can't.
I applaud you for doing it,
166
Senator, but I'd like to think that we have a
system, much as we used to do the old pension
bills, when people would come up with
pensions -- Senator Marchi knows -- we did
hundreds of pension bills when people didn't
qualify for readmission to tiers, we'd do them
on a case-by-case basis. Let's do it in one
big happy bill that deals with the tax status
state for the entire state and we can,
hopefully, solve the problem for everybody
without giving the semblance that this is
something that it's who you know or where you
are.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR MARCELLINO: Thank you,
Senator Dollinger. I thought my, this bill
was relatively calm and quite and it would not
elicit much. I did not say it -- I would like
credit for this, that I did not say, because
this bill refers to a cemetery, that people
were dying for this bill. I did not say that
167
people are rolling over in their graves in
order to get this bill. I did not say that
this bill represents a grave matter. I did
not say let's not bury ourselves with this
bill. And I also did not say that most people
believe that everything is certain but death
and taxes, and that we can't fight death but
we can relieve ourselves of taxes. I didn't
say any of those things. I just wanted you to
know that.
Thank you, Madam President.
THE PRESIDENT: All right. Read
the last section.
THE SECRETARY: Section 2, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 56.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
33, by Senator Seward, Senate Print 497,
concurrent resolution of the Senate and
Assembly proposing an amendment to Subdivision
2 of Section 8 of Article 7.
168
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Seward.
SENATOR SEWARD: Yes. Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR SEWARD: At the outset, I
must say that Senator Marcellino is a very
difficult act to follow, but I will do my
best.
The measure before us is a first
passage of a concurrent resolution of the
Senate and the Assembly which deals with a
problem that we are having with the New York
State Emergency Services Revolving Loan Fund.
Now, we established this fund back
in 1994, and it was an excellent program that
this Legislature established, which makes
funds available for very low interest loans to
fire departments and ambulance squads who are
under the auspices of various or various
municipalities. These loans can be used
everything from equipment to vehicles to the
buildings that house the equipment and
vehicles. And it's been an excellent program
which, over the last few years, has loaned out
169
some $11 million over this period of time.
Now, the problem is this, that
we're attempting to solve under this measure:
A large portion of our fire departments and
ambulance squads in the state are in the
category of what we call independent
companies, fire and independent ambulance
companies. And under the Constitution, they
cannot directly receive these state funds.
And so what this legis -- this concurrent
resolution would do, would be to amend the
Constitution to allow the disbursements of
these funds to the so-called independent
companies.
And I'm pleased that the statewide
organizations that speak on behalf of our
emergency services, such as the Firemen's
Association of the State of New York, support
this, New York State Association of Fire
Chiefs, and I know there's a great deal of
additional interest on behalf of this
concurrent resolution.
THE PRESIDENT: All right.
SENATOER OPPENHEIMER: I'd just
like -
170
THE PRESIDENT: Senator
Oppenheimer. Go ahead.
SENATOER OPPENHEIMER: Thanks.
THE PRESIDENT: You're welcome.
SENATOER OPPENHEIMER: I'd just
like to underline the importance of this bill
and support Senator Seward's bill.
We have many instances where we
have volunteer ambulance courses, corps, but
we also have many instances where we have
rescues which are inside of fire departments
as must be by law, so the ambulance service is
a rescue inside of a fire department as
opposed to a volunteer ambulance corps. They
do the exact same service to the community and
one can except and one can't. This would
equal the opportunity to receive out the funds
that they really are desperately in need of.
So this is a very good bill and I
applaud you.
SENATOR DOLLINGER: Madam
President.
THE PRESIDENT: Senator
Dollinger, why do you rise?
SENATOR DOLLINGER: Thank you,
171
Madam President. Will the sponsor yield to
just one question?
SENATOR SEWARD: Certainly, Madam
President.
THE PRESIDENT: Would you yield?
Thank you.
Go ahead, Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
Is there a definition -- through
you, Madam President.
Is there a definition of
independent fire and ambulance companies so
that this will only apply to not-for-profit
organizations instead of for-profit
organizations?
Is there a restriction in the
Constitution or in this language that prevents
it from, the revolving funds from being used
by for-profit agencies?
SENATOR SEWARD: The -- yes,
Madam President.
Senator Dollinger, there is under,
in the Not-For-Profit Corporation Law, this is
covered under Section 1402, which, which is
172
the, that's the definition that we use in the
concurrent resolution, which deals with the
so-called independent corporations. So it's
covered under -- these are not-for-profits
covered under Section 1402.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: That raises
one other question.
That's a section of statute that
we're referring to in the Constitution?
I guess my concern would be we're
taking a statutory term and putting it in the
Constitution without a constitutional
definition. Should we have that definition as
part of Constitutional Law so we permanently
restrict this only to not-for-profit groups?
SENATOR SEWARD: Well, Senator,
if you look at the concurrent resolution,
there are a number of others, entities which
are listed that are able to, that are
so-called exceptions here that we're adding
these independent incorporated entities to
that list. And, you know, they are not all
covered under the Constitution or defined in
173
the Constitution. These are all well defined
in the statutes of the State. I don't see a
problem here at all.
It's both a recognized in the
emergency services community and in the
statutes of the State of New York what we're
talking about, and so I just don't see a
problem at all. And that's been the pattern
in the other exceptions that have been made
over the years.
SENATOR DOLLINGER: Thank you.
Madam President, just one comment
on the bill. I'm going to vote in favor of
this -
THE PRESIDENT: Senator, on the
bill.
SENATOR DOLLINGER: -- I accept
Senator Seward's comment on it.
Just to respond to my friend,
Senator Marcellino. This means there will be
few skeleton, fewer skeletons crews in the
ambulance corps of this state. It's a good
idea.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Madam President,
174
will Senator Seward yield to a question or
two?
THE PRESIDENT: Senator Seward,
do you yield?
SENATOR SEWARD: Yes.
THE PRESIDENT: You may proceed.
SENATOR WALDON: Senator, if I
may, I'd like to ask a series of little short
response questions. I think I can clear the
air about some of this, and then one with a
longer response, if you choose to do so.
Senator Seward, is it important for
those who fight fires, especially our
voluntary fire departments, to have the
necessary equipment?
SENATOR SEWARD: I'll give you a
short answer. Yes.
SENATOR WALDON: Is it important
for them, when they need equipment and other
kinds of support mechanisms and systems to be
able to get them with great dispatch?
SENATOR SEWARD: Yes.
SENATOR WALDON: Is there greater
difficulty for them to obtain these resources
and materials if the law remains as it is, or
175
is it better for them and for the communities
they serve if the law will be as you wish it
to become?
SENATOR SEWARD: No question,
it's better if this measure passes.
SENATOR WALDON: Tell us a little
bit about the timeframe from needing a new
piece of fire equipment under the old system
versus the system that you propose?
And I thank you.
THE PRESIDENT: Senator, a
further explanation has been requested.
SENATOR WALDON: Thank you. I
apologize, Madam President.
THE PRESIDENT: You're welcome.
I accept your apology.
SENATOR SEWARD: Well, Senator,
you raise through your series of questions
some excellent points. And what this measure
would do, if we can correct this in our State
Constitution with the passage, first passage
of this, and, of course, it will require a
second passage, what this will do will be to
open up the revolving loan fund to these
independent companies who currently have great
176
difficulty in obtaining the necessary funding
to purchase equipment, to build that fire
house, to serve the people, protect their
property and their lives out in our
communities. And so the passage of this
measure will open up an additional funding
source for these fine, fine people who serve,
serve us all and protect our lives and
property. And so that's why I'm sponsoring
this and that's why it's important to pass it.
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Thank you,
Madam President.
On the bill, if I may, I just want
to say -
THE PRESIDENT: You may proceed.
SENATOR MAZIARZ: -- as a
volunteer firefighter myself and as a
representative of 52 volunteer fire company,
fire companies in the counties of Niagara,
Orleans and Monroe, I know full well the
difficulty that some of them are having in
purchasing additional equipment, particularly
with the technology that we have today.
And I just want to commend my
177
colleague, Senator Seward. I know that he has
worked very closely with the Firemen's
Association of the State of New York on this
legislation. It's very difficult, of course,
when you have several different types of
volunteer fire companies, some that are
incorporated into a, into a municipal system
and others that are independent are not, and
some of them are eligible for this revolving
loan fund and some are not. I think that this
legislation goes a long way towards correcting
those inequities.
Thank you, Madam President.
THE PRESIDENT: Thank you,
Senator.
On the resolution, the Secretary
will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 56.
THE PRESIDENT: The resolution is
adopted.
The Secretary will read.
THE SECRETARY: Calendar Number
35, by Senator Skelos, Senate Print 907, an
act to amend the General Obligations Law in
178
relation to exoneration.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: Madam President,
this legislation, which has passed the Senate
every year since 1991 to 1998, debated and
re-debated, last year it passed on the
non-controversial calendar 54 to 3, would
basically bring back the assumption of risk
doctrine in certain civil lawsuits.
In a personal injury action, if the
defendant shows that the injuries sustained by
the plaintiff arose during the commission or
attempted commission of certain enumerated
crimes and that the actions of the defendant
were justified pursuant on Article 35 of the
Penal Law, which defines what acts are
justifiable, then the plaintiff is deemed to
have assumed the risks of injury coming from
the encounter with the victim and the proof
shall constitute a complete defense to the
action.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
179
President, nobody wants criminals who are
injured by -
THE PRESIDENT: On the bill. Go
ahead. Go ahead, Senator.
SENATOR PATERSON: Thank you. I
was just saying that nobody wants criminals
to, who are injured by their victims or by
good samaritans to recover from their, from
these types of situations. That's certainly
not the intent of the objection to this
legislation.
These criminals assumed the risk of
injury when they committed the crimes and can
properly be found to be at fault and not be
able to recover damages. This is what the
fact finders in civil lawsuits may find under
the comparative negligence statute as it is
written. The courts can find that the
criminal contributed to his or her own injury
and, therefore, be barred from any kind of
recovery in a civil lawsuit. But this bill
distinguishes from what the existing law is
now by prohibiting any kind of lawsuit against
an entire class of people, whether it be
criminal, whether it be good samaritans or
180
whether it be victims of crimes. The fact is
that there is no regard for any situation, no
regard for any circumstance, and the freedom
of fact finders to make these determinations
is impaired and would be by the passage of
this kind of legislation.
Scholars of law once, have written
many times that no case is unique but each
case is distinguishable. And it is those
distinguishable circumstances that often come
up when it might be determined, determined in
an individual or perhaps in a low percentage
of the cases that there was some action taken
by a victim or by a good samaritan that was in
excess of their own defense. And, at that
point, there might be a determination that
there was some civil liability. But to have
an entire situation of cases be barred through
the passage of one piece of legislation would,
would move us in a direction which I believe
would get, bring us closer to a situation that
could not be litigated and, therefore, a
ruling that would be unjust.
And so, therefore, to preserve the
freedom of fact finders in these types of
181
situations, Madam President, I would urge a no
vote on this legislation.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Madam President,
would the sponsor yield to a question?
THE PRESIDENT: Would you yield,
Senator Skelos?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator.
SENATOR WALDON: Thank you, Madam
President.
Thank you, Senator.
I was, I thought, on very firm
ground until I heard Senator Paterson speak
just now. And now I am confused. So, Senator
Skelos, I'm asking that you help to edify me.
I'm going to make a statement and
then ask the question so you'll understand
where I'm coming from.
As I understand it, if John Doe
Criminal confronts someone, commits an act of
criminality, subsequent to that original
action, John Doe is injured in any form or
182
fashion by the person he perpetrates a crime
upon, then he is not allowed to bring a civil
action for tort damages.
Is that what you intend with this
legislation?
SENATOR SKELOS: What the
legislation says, that the defendant, in this
case, either the good samaritan or the victim
of the crime, if he or she could show by a
preponderance of the evidence that, number
one, that the crime committed, and they're
enumerated, we're talking about serious
crimes, murder, robbery, burglary, arson,
forcible rape, sodomy, kidnapping in the first
degree, and that the conduct was justified in
terms of the force, perhaps, used, by Article
35 of the Penal Law, which is presently the,
the law now, then it would be a complete bar
to recovering any money in a civil lawsuit.
Does not mean if a person exceeded their, the
type of force that would be permissible under
Article 35, they could be sued plus they could
be sued criminally plus there could be a civil
rights action brought by the federal
government.
183
SENATOR WALDON: Madam President,
would the gentleman continue to yield?
THE PRESIDENT: Senator, would
you yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Thank you,
Senator.
SENATOR WALDON: Thank you very
much, Madam President.
Just for my clarity, Senator, if
you will, John Doe commits a crime, the person
committed -- against whom he committed the
crime defends himself and a third person is
injured by the person upon whom the crime was
committed. Where does the liability rest for
that injury?
SENATOR SKELOS: The person's a
good samaritan?
SENATOR WALDON: Or a good
samaritan. He may come to the aid -
SENATOR SKELOS: What this does
is says that this person could not sue the
victim of the crime or the good samaritan that
goes to assist that person to prevent the
184
commission of a crime or helps a police
officer apprehend somebody who has committed a
crime.
SENATOR WALDON: Thank you very
much, Senator.
Thank you, Madam President.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Just on the
bill, Madam President.
THE PRESIDENT: Go ahead.
SENATOR DOLLINGER: I voted
against this in the past and I really draw a
distinction in this bill. I'm not bothered
all that much by the provisions that deal with
victims, crime victims. I'm concerned not
about the good samaritan, I'm concerned about
the well-intentioned samaritan who happens to
show up at a crime scene and does what is well
intentioned but it doesn't turn out,
necessarily, to be the right thing or a good
thing for the victim or the person who is
eventually hurt.
And the danger is that if we have a
good samaritan test, where, in essence,
185
exonerating what would have happened. If we
had taken the Biblical story and good
samaritan's walking down the road and he helps
the person out of the gutter and he picks him
up and he carries him down and he then leaves
him at the front door of the hotel or the
front door of the building, knowing that's
filled with criminals, or he walks him across
the threshold, knowing there's a gap in the
sidewalk, and he trips and falls. The story
might have a different Biblical ending if it
were just the well-intentioned samaritan
rather than the good samaritan.
And the question is, does this bill
exonerate reasonable conduct by a person in
the position of being a samaritan?
And I think to some extent it goes
a little too far in exonerating for conduct
the good samaritan. And what we should look
as is to simply require the samaritan to do
what we require of everybody: Do what's
reasonable and prudent under the circumstances
and you won't be charged with any kind of
civil liability.
So I appreciate what Senator Skelos
186
is doing, and I agree with him on crime
victims. I'm concerned about the good
samaritan and whether this exception goes too
far. If it were just crime victims, I'd vote
for it. In the past I've voted against it. I
think it's moving in the right direction, but
I'll still vote no.
THE PRESIDENT: Read it.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 35 are
Senators Connor, Dollinger, Duane, Paterson
and Schneiderman.
Ayes 52. Nays 5.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes -
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: -- that completes
-- excuse me. That completes the reading of
187
the controversial calendar.
SENATOR SKELOS: Is there any
housekeeping at the desk?
THE PRESIDENT: No, Senator.
SENATOR SKELOS: There being no
further business, I move we adjourn until
Tuesday, January 26th, at 11 a.m. sharp.
THE PRESIDENT: On motion, the
Senate now stands adjourned until Tuesday,
January 26th, 11 a.m.
Have a good evening.
(Whereupon, at 3:52 p.m., the
Senate adjourned.)