Regular Session - February 2, 1999
219
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 2, 1999
11:07 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate is
called to order.
I ask everyone present to please
rise and join with me in reciting the Pledge
of Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we bow our heads in a moment of
silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, February 1st, the Senate met pursuant
to adjournment. The Journal of Friday,
January 29th, was read and approved. On
motion, Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Marchi,
from the Committee on Corporations,
Authorities and Commissions, reports:
Senate Prints 774, by Senator
Stafford, an act to amend the Public
Authorities Law;
1081, by Senator Holland, an act to
amend the Not-For-Profit Corporation Law.
Senator Trunzo, from the Committee
on Transportation, reports:
Senate Prints 89, by Senator Alesi,
an act to amend the Highway Law;
558, by Senator Fuschillo, an act
to amend the Vehicle and Traffic Law;
975, by Senator Skelos, an act to
amend the Vehicle and Traffic Law;
1060, by Senator Padavan, an act to
amend the Vehicle and Traffic Law;
1083, by Senator Holland, an act to
amend the Vehicle and Traffic Law;
1102, by Senator Goodman, an act to
amend the Transportation Law.
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Senator Spano, from the Committee
on Labor, reports:
Senate Prints 830, by Senator
Marcellino, an act to amend the Labor Law;
1370, with amendments, by Senator
Spano, an act to amend the Labor Law;
1372, by Senator Spano, an act to
amend the Labor Law.
All bills directly for third
reading.
THE PRESIDENT: Without
objection, all bills ordered direct to third
reading.
Reports of select committees.
Communications and reports from
State officers.
Motions and resolutions.
SENATOR SKELOS: Madam President,
I don't believe there are any motions, so at
this time may we please adopt the Resolution
Calendar in its entirety?
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, signify by
saying aye.
(Response of "Aye.")
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THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Recognize 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
14, by Senator DeFrancisco, Senate Print 539,
an act to amend the Criminal Procedure Law.
THE PRESIDENT: 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 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
17, by Senator Maziarz, Senate Print 652, an
act to amend the Criminal Procedure Law.
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SENATOR DOLLINGER: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
23, by Senator DeFrancisco, Senate Print 538,
an act to amend the Penal Law in relation to
the payment.
THE PRESIDENT: 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 39.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
54, by Senator Seward, Senate Print 1365, an
act to amend the Insurance Law and the Banking
Law.
SENATOR DOLLINGER: Lay it aside.
THE PRESIDENT: Is that
temporarily or for the day, Senator?
SENATOR DOLLINGER: Temporarily.
THE PRESIDENT: Senator Seward.
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The bill is laid aside temporarily.
THE SECRETARY: Calendar Number
74, by Senator Hannon, Senate Print 813, an
act to amend the Criminal Procedure Law in
relation to imposing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 38. Nays 1.
Senator Duane recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
78, by Senator Skelos, Senate Print 1017, an
act to amend the Criminal Procedure Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
November.
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THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 38. Nays 1.
Senator Duane recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
79, by Senator Goodman, Senate Print 1122, an
act to amend the Penal Law.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect immediately.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
80 -
SENATOR WALDON: Lay it aside.
THE SECRETARY: -- by Senator
Balboni, Senate Print 1241, an act to amend
the Criminal Procedure Law.
SENATOR WALDON: Lay it aside.
THE PRESIDENT: Is that
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temporarily or just for the day?
SENATOR WALDON: Temporarily.
THE PRESIDENT: Temporarily. The
bill is laid aside temporarily.
That completes the reading of the
non-controversial calendar.
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
17, by Senator Maziarz, Senate Print 652, an
act to amend the Criminal Procedure Law.
THE PRESIDENT: Senator Maziarz,
an explanation has been requested.
SENATOR MAZIARZ: Lay it aside
temporarily.
THE PRESIDENT: The bill will be
laid aside temporarily, Senator.
THE SECRETARY: Calendar Number
54, by Senator Seward, Senate Print 1365, an
act to amend the Insurance Law and the Banking
Law.
SENATOR DOLLINGER: Explanation,
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Madam President.
THE PRESIDENT: Senator Seward,
an explanation has been requested.
SENATOR SEWARD: Certainly, Madam
President.
This legislation before us would
amend Article 16 of the Insurance Law to
delete the State law prohibition on property
and casualty insurers from owning bank
securities and banking-related entities and to
provide the explicit permission for the banks
and trust companies to, on the flip side,
invest in subsidiary corporations whose
activities do include acting as underwriter,
agent or broker with respect to any kind of
insurance.
Now, the reason for this
legislation, Madam President, is, that just in
December of last year, this House joined with
the Assembly in passing legislation which
removed the restrictions on the ownership of
domestic life insurers of banks and
banking-related institutions. And so in the
interest of parody and fairness, this bill
would remove the similar restrictions with
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respect to the property and casualty insurance
companies.
SENATOR DOLLINGER: Madam
President.
THE PRESIDENT: Senator
Dollinger. Why do you rise, Senator?
SENATOR DOLLINGER: Will the
sponsor yield just to a question?
THE PRESIDENT: Senator Seward,
will you yield?
SENATOR SEWARD: Yes, certainly.
THE PRESIDENT: On the bill,
Senator Dollinger.
SENATOR DOLLINGER: Senator,
the -- this will allow the banks to be engaged
as underwriters, agents or brokers with
respect to any kind of insurance?
SENATOR SEWARD: With respect to
that piece, Senator, this bill, standing
alone, will not do that. It -- that piece of
the legislation merely gets New York State
ready for and in a position to respond to
pending federal legislation, so-called HR10.
So this bill alone will not allow them to do
that, but it gets the State poised and ready
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for the federal legislation, should it pass.
SENATOR DOLLINGER: Again,
through you, Madam President. So do I
understand correctly then that this is really
a piece of legislation that is a preface to
changes at the federal level, when those
changes occur, that they will be able to do -
we will, in essence, have cleared the way for
those changes, those federal changes to occur
at the state level as well. Is that correct?
SENATOR SEWARD: Well phrased,
Senator Dollinger.
SENATOR DOLLINGER: Again,
through you, Madam President, one final
question. Wouldn't it be more prudent to wait
until we see whether the or what the exact
context of the federal legislation is before
we sort of, so to speak, clear the decks here
in New York to allow this to happen?
Why wouldn't we wait until the
federal legislation comes down and then take
our law and modify it to meet the exact
wording of the federal statute?
SENATOR SEWARD: Well, Madam
President, my view here is that we're talking
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about a matter of parody that, with the
legislation that was enacted in December, and
I believe it passed unanimously in this House,
allowing the life insurers to purchase bank
securities, that the flip side should be to
prepare New York State Law for the banks to
also purchase entities that are involved in
the insurance business and so -- also, of
course, looking at, along the lines of parody,
of course, the property and casualty companies
being involved as well.
This -- what I see this legislation
doing in respect to the banks is just
preparing New York State. Why delay this
matter of parody that I've talked about,
should the federal legislation move forward?
This doesn't get involved with the details of
exactly how that will work. That's obviously
something that will be dictated by the federal
legislation and, of course, other New York
State statutes and regulations.
THE PRESIDENT: Thank you,
Senator.
SENATOR SKELOS: Madam President,
if I could interrupt for a moment.
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There will be an immediate meeting
of the Children and Families Committee in Room
123 of the Capitol.
THE PRESIDENT: All right. There
will be an immediate meeting of the Children
and Families Committee in Room 123 of the
Capital.
Senator Dollinger.
SENATOR DOLLINGER: One final
question for the sponsor, Madam President,
through you.
THE PRESIDENT: Thank you.
SENATOR DOLLINGER: Does this
bill in any way affect the merger of Travelers
Insurance Company and City Bank Corporation.
SENATOR SEWARD: No, it does not.
That's not the intent of the legislation.
SENATOR DOLLINGER: Okay. Thank
you, Madam President.
THE PRESIDENT: Thank you,
Senator.
Read the last section.
THE SECRETARY: Section 5, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes 47. Nays 1.
Senator Duane recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
79, by Senator Goodman, Senate Print 1122, an
act to amend the Penal Law.
THE PRESIDENT: 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 48.
THE PRESIDENT: The bill is
passed.
Senator Duane, why do you rise?
SENATOR DUANE: Madam President,
I rise to explain my vote. I'm voting no
because I believe that this would be better
undertaken as part of an ominous bill dealing
with issues of sexual assault.
THE PRESIDENT: The bill is
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passed.
Thank.
THE SECRETARY: Calendar Number
80, by Senator Balboni, Senate Print 1241, an
act to amend the Criminal Procedure Law in
relation to authorizing.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, on Calendar Number 79 -
THE PRESIDENT: Why do you rise,
Senator?
SENATOR PATERSON: I'm just
trying to make sure that on Calendar Number 79
that the vote is now 47 to 1, with Senator
Duane recording in the negative.
THE PRESIDENT: It does, Senator.
SENATOR PATERSON: Thank you.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested, sir.
SENATOR BALBONI: Yes, Madam
President.
Thank you.
THE PRESIDENT: You're welcome.
SENATOR BALBONI: The bill before
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us would create the crime of stalking. It
would create three different degrees and it
would amend the Penal Law. The initial degree
would be stalking in the third degree and
would set up the acts rule -- acts which would
be prohibited under the law. And those acts
are divided up into two parts.
The first is the unwanted and with
intent to cause harassment or alarm or
annoyance, the following of an individual
repeatedly, meaning more than once. That is
the first element of stalking. Or the
individual commits a series of acts, which, by
themselves, are intended to provide a
reasonable person with fear for either their
safety or their life. And those are
simplistic discussions of the two actus rates,
as it were, for the crime of stalking.
In addition, which then we set up
enhancers. And they then raise -- and the
stalking in the third degree is an A
misdemeanor. Stalking in the second degree,
specifically, now uses enhancers of -- let me
get to the specifics -- if the person's -- if
they have been convicted of a prior offense of
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stalking or against another family member and
the preceding 10 years, then it goes to a
class E felony, or if they violate a duly
ordered order of protection or if in the
course of committing the stalking they display
a firearm or a weapon or if they commit the
crime of stalking against an individual who is
under 17 years of age. Stalking in the first
degree is a class D felony, and this would
also be a previous conviction, but of a felony
stalking offense, in the preceding 10 years
and if in the course of committing a stalking
offense the individual recklessly and
intentionally causes physical injury or
serious physical injury or death to the
individual.
In addition to which the bill
allows for eavesdropping and video
surveillance techniques by law enforcement
under the Criminal Procedure Law in an effort
to assist the criminal justice agencies to
prosecute stalking.
Why this bill? Why now? Last
June, the Center for Disease Control and the
Center for Victims Rights came out with a
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traumatic study, indicated that over a million
people have been stalked in the United States.
Stalking is not a crime you talk
about. I am sure that any of my colleagues in
this chamber, if you were to talk to members
of your staff, members of your family, you
would be astounded, as I have been, with the
number of people in our own circles who have
been stalked but who never talk about it.
Stalking is terrorism on a personal basis. It
is the invasion of every aspect of your life.
And what makes it so difficult is you don't
know -- there's no bright line as to what
constitutes stalking under our current law, so
you don't know if it really constitutes
menacing or harassment. And that's why this
law is so overdue and so needed in the State
of New York.
California introduced their first
statute in 1990 and we have taken certain
steps with the creation of our harassment and
menacing statutes, but it has been a gap. We
need to fill that gap. That's what this bill
does.
Thank you, Madam President.
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THE PRESIDENT: Thank you,
Senator.
SENATOR WALDON: Madam President.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Would the
gentleman yield to a question or two?
THE PRESIDENT: Senator Balboni,
will you yield, please?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: All right. Go
ahead, Senator Waldon.
SENATOR WALDON: Thank you very
much, Madam President. Thank you, Senator.
Let me preface my question with
some remarks. Recently, in the press and
elsewhere in the media, we've heard of some
controversy, at least I have, in regard to the
clinic access bill proposal and your proposal
for stalking. I personally do not believe
that they are contraindicated. I believe that
both will do the job that's necessary for the
particular class of people affected.
I would like to ask you, do you see
a contraindication between your proposal and
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the proposed clinic access bill, if you've had
the liberty of reviewing that?
SENATOR BALBONI: Senator, if you
are saying that the two are mutually
exclusive, I do not believe they are mutually
exclusive.
SENATOR WALDON: Thank you very
much.
Madam President, would the
gentleman yield again?
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yep. Yes,
Madam President.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Thank you, Madam
President.
Senator, do you see that this
expands the menacing statutes which we have
now and the harassment statutes we have now to
specifically cover them under the penumbras
zone -- under the heading of stalking, so we
no longer need, necessarily, for someone who
is stalked or the stalker, menacing and
harassment, we can deal with them only under
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the stalking statute as you propose it to be?
SENATOR BALBONI: Actually,
Senator Waldon, the proposal before us now
makes amendments to the existing harassment
and menacing statutes, so as to coordinate the
ability of law enforcement to prosecute under
any one of those.
SENATOR WALDON: Would the
gentleman yield to perhaps just one or two
more questions, Madam President?
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: I continue to
yield.
THE PRESIDENT: Go ahead -
SENATOR WALDON: Thank you, Madam
President.
THE PRESIDENT: -- Senator
Waldon.
SENATOR WALDON: Thank you,
Senator.
Senator, most recently a heinous
crime was committed in Upstate New York, the
taking of a life, someone who worked on behalf
of those people who had clinics or who
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attended clinics in order to access those
clinics for abortions and other kinds of
medical therapies.
Do you think, had we had this
proposal that you're giving us today on the
books of the State of New York, that that
could have prevented the murder of
Dr. Slepian?
SENATOR BALBONI: Senator, I
apologize. I'm at a loss, because I don't
know -- you're giving me a broad set of
circumstances. I'm not sure of the specifics.
SENATOR WALDON: Let me rephrase
it.
SENATOR BALBONI: As you know,
criminal justice is always applied on a
case-by-case scenario and that is the nature
of our justice system. So without further
information, I would not be able to answer
that question.
SENATOR WALDON: Madam President,
would the gentleman permit to clean up my act
and rephrase the question?
THE PRESIDENT: Senator Balboni,
is that permitted?
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SENATOR BALBONI: I always permit
that.
SENATOR WALDON: Thank you, Madam
President.
THE PRESIDENT: You may, Senator.
SENATOR WALDON: Thank you,
Senator.
Senator, if this proposal you're
submitting for our consideration today had
been law prior to the day that Dr. Slepian was
killed, do you think it would have had any
salutary effect, it could have prevented the
killing of Dr. Slepian?
SENATOR BALBONI: I,
unfortunately, do not know the specifics as to
the current situation in the Dr. Slepian case.
I know of the tragedy. I know of the loss of
life. I realize that the acts of violence
took place at his home and not at a healthcare
facility. However, I do not know what the
criminal justice agency has in the way of
evidence. I understand, only through rumor
and speculation that, in fact, the doctor was
stalked. Given that set of circumstances and
this is a stalking bill, I believe that this
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bill would, in fact, have provided a better
mechanism by which that situation could have
been addressed.
SENATOR WALDON: Madam President,
thank you very much. Thank you, Senator.
THE PRESIDENT: Senator
Dollinger, why do you rise?
SENATOR DOLLINGER: Thank you,
Madam President. Will the sponsor yield to a
couple questions?
And I guess I'll preface my
comments by saying -
THE PRESIDENT: All right. First
of all, Senator Balboni, do you yield?
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: I'll preface
my comments by saying, Madam President, that I
think this is a bill that has, we recognize, a
tremendous problem in this state. Senator
Balboni's absolutely correct. The Board for
the Center for Disease Control showed that
there were more a million people that were
being stalked in this country. You can't open
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a magazine now and read about a sports hero or
a movie entertainer that hasn't been stalked,
that hasn't been a victim of this kind of
behavior. So I think that we, on this side of
the aisle, recognize that Senator Balboni's
legislation is attacking a part of a problem,
a very serious problem.
And I would just add that, Senator
Balboni, one thing I think you might have left
out, is I think that same report shows that
about 80 percent of the people who are
actually stalked are females, they're women.
This is a problem that most often confronts
women. And I think it's something that we
need, as Senator Balboni says, to take very
seriously, but I also think we have to make
sure that, when we pass this bill, we're
attacking the exact nature of the problem and
we're using our Penal Law to properly define
the conduct that we're seeking to prohibit and
seeking to punish.
With that in mind, Senator Balboni,
let me just ask you a couple questions about
the section that deals with stalking in the
third degree.
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As I understand it, the statute
says, and I call your attention, it's on page
3, line 13 through 15. It says, "With intent
to harass, annoy or alarm." The intent that
you're referring to there is on the part of
the person who is, who is engaging in that
conduct. Is that correct?
SENATOR BALBONI: That's correct.
SENATOR DOLLINGER: So we're
using, in this statute, we're using the
subjective intent of the perpetrator as an
ingredient of the crime. Is that correct?
SENATOR BALBONI: That is
correct.
SENATOR DOLLINGER: And again
through you, Madam President, if Senator
Balboni will continue to yield.
SENATOR BALBONI: I continue to
yield.
THE PRESIDENT: Senator continues
to yield.
SENATOR DOLLINGER: So what we've
established is that there is some conduct with
intention on the part of the perpetrator is an
ingredient in the conduct.
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Senator Balboni, will you
acknowledge that the proof beyond a reasonable
doubt of that intention may be very difficult
to achieve?
SENATOR BALBONI: Senator, I hope
that we can characterize our discussion in
something other than what is currently
existing law. As you know, the mens rea
requirement by criminal justice statutes is a
necessary requirement under the Constitution,
and this is nothing or no more difficult than
the prosecution of any case in which intent is
a required element of the conduct.
SENATOR DOLLINGER: Again through
you, Madam President, if Senator Balboni will
continue to yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: Senator Balboni,
do you continue to yield?
SENATOR DOLLINGER: Suppose the
following facts occur, that someone is
attempting to enter a healthcare facility and
someone doesn't bar their way but simply
shouts over their shoulder in epithets,
comments, encourages them to exercise their
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civil rights in a particular fashion and they
testify at trial, when they're brought to
trial on the stalking issue, they say, "I
wasn't intending to annoy, harass or alarm
them. I simply was intending to tell them
what their Constitutional rights were or what
my opinion was of their exercise of their
Constitutional rights." My question is, if
that case is brought, does that violate this
stalking statute?
SENATOR BALBONI: No, it doesn't.
And since this is not cross-examination, I'll
be free to explain my answer.
SENATOR DOLLINGER: I do
appreciate it.
SENATOR BALBONI: Though it is
taking on that tone; isn't it, Richard?
The discussion would have to relate
to all the elements of the bill. And in the
scenario that you just laid out, there was a
couple of missing elements under the statute.
The first is repeatedly.
Remember what the nature of
stalking is.
SENATOR DOLLINGER: We'll get to
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repeatedly in a second.
SENATOR BALBONI: But you were
not clear. You did not include that this was
repeatedly done over time. And, in addition,
to which this is the type of issue, situation
that is more clearly defined. I mean, instead
of taking somebody that's standing outside of
a healthcare facility, how about a woman who's
at work and then is followed repeatedly at
home, or someone who is sent dead roses over a
period of time, or perhaps what's happening in
Cattaraugus County right now. That's not,
that's not a hypothetical. How about we take
a real life case and why don't we talk about
what's happening in Cattaraugus right now,
where there is a man on trial who has been
alleged to have read through the papers for a
series of years and has taken clips -- how
terrifying is this for all us public
officials? -- taking clips of individuals,
all women, cut them out of the newspapers,
found out where they lived and he had 45 on
his hit list, contacted 28 of them and he
would have three conversations with them. The
first conversation was, "I'm going to stick
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you with a knife in your stomach." Click.
Hang up. Day later, "Do you know that can
killed by a knife is the worst and most
painful way to die?" Click. Third, "You have
48 hours before I do this to you." This is
not a hypothetical. This is not something
that we've dreamed up. This is real life and
it's happening right now in Cattaraugus
County.
Richard, I think that that is the
kind of situation that more clearly defines
not only the example of stalking, but it's
need right now in this state.
SENATOR DOLLINGER: Again through
you, Madam President, if Senator Balboni will
yield to a couple -- to a question?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes, Madam
President.
SENATOR DOLLINGER: I couldn't
agree with you more, Senator Balboni, that
that example that you made is not only real
and is not only a violation of law. My
question is: Why do you use a subjective
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standard on the part of the perpetrator to
define an element of this crime, when what we
should do is use an objective test of the
conduct that it annoys, harasses or alarms as
the standard, so the jury would never be faced
with the question of you must resolve beyond a
reasonable doubt that the subjective intention
on the part of the perpetrator, and instead
use an objective standard that would say if
the effect of this conduct is to create in the
mind of the victim that they were annoyed,
harassed or alarmed, then it could be proved
by the testimony of the victim and the
subjective viewpoint of the perpetrator would
not be pertinent to the case?
Wouldn't it be more effective to
say to the women of this nation, of this state
or the victims that you make reference to in
Cattaraugus County, wouldn't it be better to
say to them, "Wait a second, we don't have to
prove the intention on the part of the
perpetrator who may walk in and say, 'Well I
thought I was doing something I was
constitutionally permitted to do. I thought I
was doing something that was expressing my
251
political opinion'?
Why don't we set up an objective
test in the statute that says, if the effect
of the conduct is to create in the mind of the
victim the notion that they are being annoyed,
harassed or alarmed, then they are guilty of
stalking regardless of what their subjective
opinion or viewpoint may be?
SENATOR BALBONI: To respond to
the gentleman's question, Madam President, I
would have three points. The first is, we do
include that type of test, and that is in
paragraph number 2 of Section 120.45. That is
the element of the other, the alternative
portion of the initial stalking definition,
which specifically says, "Intentionally
stalking. The crime of stalking is
intentionally or repeatedly committing acts
over a period of time which are likely to
place such person in reasonable fear of
physical injury, serious physical injury,
sexual assault or death." So the prosecutor
would be able to choose which section they
could pursue and prosecute under. That's my
first comment.
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The second comment is, this intent
inquiry is no more difficult than the jury's
analysis of whether or not somebody intended
to kill another individual as opposed to
merely cause their death recklessly. And, as
you know, that is the difference between
murder in the first degree and manslaughter.
And in the third aspect of it is,
you're saying in the one hand, trying to prove
in the intent of the perpetrator is
subjective, but yet, and yet you're saying
that the reasonableness of the victim is also
not subjective. I submit to you they're both
subjective. And that is the nature of this
crime.
See, this is what's been so
daunting over the years. And I would refer to
you two articles that have specifically
criticized not putting in the intent language.
The first is a St. John's Law Review, Volume
67, begins on page 347, it's entitled
"Stopping Stalkers. A Critical Examination of
Anti-Stalking Statutes." And in addition to
which I would refer you to a Northwestern
University Law Review that is entitled, "Are
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Stalking Laws Unconstitutionally Vague or Over
Broad?" And that's 88 Northwestern Law Review
769.
Both articles specifically refer to
the need to include an intent element on
behalf of not only the perpetrator but also
the victim so that you can give law
enforcement an ability to point to not only
the objective facts but also the subjective.
And, as you know, these things can be
manifested very clearly. In other words, a
letter that's being sent to somebody, "I want
to kill you." You know, under law right now,
one letter such as that, it's not clear.
Suppose they didn't use the word kill.
Suppose they -- "I want to love you to death"?
Or, in this case, there's been a case in the
City of New York where nurses were followed
and they were said, "I want to perform surgery
on you." You know, these types of actions,
that can be gleaned and be given to a jury as
evidence of intent to stalk. And I think that
that's -- this statute has been very carefully
crafted. And at this point, it's not just me,
it's Dale Volker. Dale Volker has been doing
254
a tremendous amount of work on this for years.
And I don't think there's anybody else in the
state who's got a better reputation in
criminal justice law than Dale Volker. So
this has been something that he and his staff
have taken an enormous amount of time and
energy. And, frankly, we have looked at all
of the case law from across the nation, and
this is the best crafted statute we could
bring up.
SENATOR DOLLINGER: Mr.
President -
ACTING PRESIDENT KUHL: Senator
Dollinger.
SENATOR DOLLINGER: -- Senator
Balboni any I may not agree about parts of the
statute. We do agree about the comments with
respect to Senator Volker.
I have one other question, Mr.
President.
ACTING PRESIDENT KUHL: Senator
Balboni, do you yield to a question from
Senator Balboni?
SENATOR BALBONI: Yes, I do.
ACTING PRESIDENT KUHL: The
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Senator yields.
SENATOR DOLLINGER: Stalking is
an enormous problem. We agree on that. We
disagree about whether the, at least, in the
third degree this statute attends to it, and
I'll address that in my remarks on the bill.
If you wanted to solve the problem
of stalking and if you wanted to empower
people who feel they are victims of the
stalking, why not give them access to the
civil justice system and allow the to bring a
civil action on their own against their
stalker to obtain not only a order of
protection but a preliminary injunction, a
temporary restraining order, damages for
contempt of court? If we want to solve the
problem, wouldn't it be even easier to use the
civil justice system with its reduced burden
of proof, simply beyond a reasonable doubt to
empower women across this state to go to the
civil court system and get the relief that
they seek?
SENATOR BALBONI: Senator
Dollinger, that request for civil relief has
not been asked for by the D.A.'s Association,
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by the victims groups, by law enforcement
groups.
It seems that a lot of stalkers are
judgment proof, a lot of stalkers don't have
money. And what the system is relying on, as
it does with most criminal justice statutes,
is a victim's compensation statute.
And let me point out an irony. Do
you know last year this body passed and the
Governor signed a law which provides for
victims compensation based upon victims of
stalking?
We have it in place. We don't have
the law. It's high time we do it.
SENATOR DOLLINGER: Thank you,
Mr. President. Before I yield the floor to
other of my colleagues, I would just point out
to Senator Balboni that the suggestion that we
use the civil tort system as a way to provide
remedies against stalkers is something that
we've already marched partly down the road to
do. I point out to Senator Balboni today,
today we passed a bill that expanded the scope
of those who could bring a civil action to
recover a civil enforcement of judgements.
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We've expanded the group of people to include
district attorneys and others. I would
suggest that, if we're seriously interested in
resolving the problem of stalking, we should
not only look at criminal remedies, but we
ought to look at civil remedies as well. They
hold the potential to give women or classes of
women, whether they're seeking access to
whatever they choose, whether it be healthcare
or any other exercise of their rights, if
those rights are interfered with by people who
repeatedly follow them, by people who annoy
and harass them or alarm them. If they
perceive that that's the goal of the conduct
directed against them, they ought to have
access to civil remedies.
And I would suggest, Senator
Balboni, that if what you're really trying to
do is completely attack the problem of
stalking, empower the women of this state, 80
percent of the people who are stalked are
women, give them a chance to go to a lawyer
and say, "You're right." We may not get a
civil judgment for damages against our
stalker, but we may get a civil remedy, a
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temporary restraining order, a preliminary
injunction that says if it ever happens again
they will be arrested and held in contempt of
court. The fact that there's a lower burden
of proof gives more women access to the
defense against stalkers.
I would just strongly suggest that
this bill, which contains some, in my
judgment, some loosely worded provisions that
ought to be better defined; nonetheless, does
not do the complete job for the women of this
state, for the people who are stalked. Let's
create a civil remedy. Let's do the whole
job. That would be the way to give a clear
direction to stalkers, that not only are you
going to be put in jail, potentially, but you
could also be held in contempt of court and be
put in jail through the civil justice system.
ACTING PRESIDENT KUHL: Senator
Connor, why do you rise?
SENATOR CONNOR: Mr. President,
if he could keep Senator Balboni and Senator
Dollinger going for another 20 minutes, I
think I could get a hour's worth of continuing
legal education credit for all the lawyers in
259
the room. As you know, we have to do that.
That's, you know -
ACTING PRESIDENT KUHL: Senator
Goodman, why do you rise?
SENATOR GOODMAN: I'd like to
speak on the bill, please.
ACTING PRESIDENT KUHL: Senator
Onorato had indicated that he wished to speak
before you, sir. So -
SENATOR GOODMAN: Is there a
list?
ACTING PRESIDENT KUHL: -- you
will be second on the list, Senator.
SENATOR GOODMAN: Second. Thank
you.
ACTING PRESIDENT KUHL: Chair
recognizes Senator Onorato.
SENATOR ONORATO: Mr. President,
would the sponsor yield to a question, please?
SENATOR BALBONI: Yes, Mr.
President.
SENATOR ONORATO: Senator
Balboni, how will this effect the paparazzi
who are continually harassing celebrities and
everybody else with their invasion of property
260
and private lives?
SENATOR BALBONI: This would, in
fact, cover them. And oftentimes there has
been an irony in some of the national
publications that state that, you know,
California was the first state to come out
with such a law. New York has just as many,
arguably, just as many famous people in our
state, yet we don't have -- the George
Onoratos of the world and we don't have a law
to protect them.
But what is important to recognize,
that this is not a narrowly drawn bill in
terms of the class of people it protects. It
protects not only the women of the state, it
protects the famous and the rich and the
people who are our constituents and the people
who don't have a nickle. And that's the
benefit of this law. It protects everybody.
ACTING PRESIDENT KUHL: Senator
Goodman.
SENATOR GOODMAN: Mr. President,
this matter is one which has come up in
various forms in this Legislature for several
decades. And let me say that today really is
261
the opening shot in what I think will be a
continuing debate during 1999 with respect to
the whole question of what can be done to
protect the rights of women who seek abortion
services.
I think there's been ample coverage
up to this moment of the question of whether
the stalking bill provides adequate clinic
access protection, and I will touch upon that
in just a moment. But before doing so, I'd
like to take just a few seconds to discuss a
visit that we had in this chamber last week
which is one of the most memorable and
poignant in my recollection.
There came to our visitors waiting
room a lady in a wheelchair and she was in a
condition which is indescribable, really, and
I won't attempt to spell it out in detail to
you. But let me just say in advance she was a
bombing victim, a bombing victim in a clinic
in Alabama where she was the chief nurse and
where a policeman was killed standing next to
her. To look at this woman was an almost
unbelievable agony just in the beholding of
her condition because there she stood with a
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one eye having been blinded, one ear having
been rendered unusable, her legs were heavily
scarred to a degree that is almost
indescribable, they were both broken in the
blast. In every way she had been maimed and
virtually slaughtered while still managing to
live and survive the experience. This is a
gentle soul, a mother of two kids whose only
crime had been to administer services, not
just for abortion, but to a women's health
clinic for all sorts of gynecological
services. Her life had been utterly ripped
apart by the explosion of this bomb and she
felt strongly enough about the need to protect
people against similar fate so that she was
taking the personal and painful experience of
flying around the country to appear before
various legislative bodies to illustrate the
extraordinary inhumanity which can be
perpetrated one individual to another in this
very agonizing battle which seemed never to
end.
Mr. President, left me say that
there is a misconception which is around in
this land at the moment which is that a
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stalking bill will protect against clinic
access problems. It's been amply spelled out,
I think, that the federal law exists. It's
not a question whether we need a new law, we
have a law that provides comprehensive clinic
access. But as the situation, unfortunately,
unfolds we find that that law is
unenforceable, not because there's any defect
in the way it's drafted or any defect in its
language, but simply because we do not have
the manpower at the state leave to see that
the law is enforced.
Now, this is a cruel irony, if you
stop to think about it. A law passed at
federal level which protects people for
specific rights of access to clinics but
insufficient numbers of federal marshals and
insufficient capacity on the part of local
district attorneys to step in and fight the
good fight to enforce this law. This is
something which, in my mind, is absolutely
intolerable because what it does is to make a
mockery of the legal system in this country.
We pass a law to protect people. It's on the
books. It's clear and explicit. And what
264
happens? The law continues to be broken with
impunity and the slaughter of the type that
I've just described which is visited upon this
tragic figure is something which we are forced
to tolerate because the law does not have any
teeth in it.
What I think we are seeking today
is a law that does have teeth, and I'd like
first to complement Senator Balboni, the
stalking law, in its own specialized way,
accomplishes very good aims and it's a good
law and there's no debate about its merits.
What there is a debate about, however, is the
assertion of certain opponents of clinic
access law that stalking puts the whole thing
to rest. It does nothing of the kind because
the stalking law will not provide the federal
marshals we need to protect us, it will not
provide the district attorneys, it will not
provide the local assistance which is
imperative if the lawful is to be observed.
So what alternative does this leave
us? Let me share with you a little inside
baseball and a little internal strategy in
what I envisage is the way in which to solve
265
this problem. I've been given assurances by
the Majority Leader that this matter will come
before a conference of the Majority for a full
and adequate discussion in the very near
future.
The bill that we have before us
goes far beyond the federal law. And, in that
respect, unfortunately, will not be palatable
to this legislative process, even though I
would personally vastly prefer it.
What I'm proposing, therefore, is
to have a bill, and indeed, my office has
drafted a bill identical in every respect to
the federal law. It goes no further. It
stops at the precise boundaries set by the
federal law.
And why does it do that? Because I
want to go to the most conservative elements
of our process here and say to them, "Look,
there's nothing new about this state bill
except the capacity to enforce an existing
law. We are, in effect, taking the federal
law. We're stamping it upon the local
situation and we're saying let us use this law
as the means to come up with what amounts to a
266
compromise." We don't seek impair free
speech. If someone wants to stand at the
entrance to a clinic and urge people not to
have abortions, this law will not prevent
that. The Supreme Court has made it clear in
its recent decision that the free speech
elements in this situation can continue and,
therefore, we're not going to change that
terrain. But what this does do is to assure
that we can enforce the existing law and we
can actually provide physical protection to
those women and those workers who desperately
need it.
I'm suggesting, therefore, that we
not support this bill at the moment. Even
though I vastly prefer to see it enacted, I
will not vote for it. I will go with my party
in a party vote against it. But I want to let
you know that it's my intention to go into the
Republican conference to discuss the
preparation of a bill absolutely identical to
the federal bill and to see if we can't pass
it.
But I'll do something more than
that. I think it's imperative that we realize
267
that the blockage to this bill comes from
certain forces outside the Senate chamber.
It's no secret that the Conservative Party,
for example, have serious free speech
objections to the Assembly bill. Therefore, I
think it's important that we go to the head of
that party and that we reason with them and
say, "The bill we're seeking to pass does not
impair the free speech aspects that concern
you." It's important that we go to other
people who may have objections to this bill
institutionally and point out to them that all
we're doing is passing a law that already
exists at the federal level.
That's the strategic plan. It's my
fond hope that it will work. I share is that
with you so that you will understand that that
seems to me to be the practical, pragmatic
approach to getting a bill passed which will
truly protect women like this noble nurse,
Mrs. Lyons, who came here to convey the
message, she will realize that her effort was
not in vein and we will realize that the
protection which we so urgently require is
something that we can actually provide.
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That's what I hope we can do and I urge your
support for that element solution.
ACTING PRESIDENT KUHL: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I believe there's an amendment
at the desk.
ACTING PRESIDENT KUHL: Senator
Schneiderman, if you just give me one moment,
please.
Senator Schneiderman, there is an
amendment at the desk.
SENATOR SCHNEIDERMAN: I ask that
it be read and I would like to offer an
explanation of the amendment.
ACTING PRESIDENT KUHL: We'll
waive the reading of the amendment, Senator
Schneiderman, and afford you an opportunity to
explain your amendment at this point.
SENATOR SCHNEIDERMAN: Thank you
very much.
This amendment amend Senator
Balboni's stalking law by adding the
provisions of what is commonly referred to as
the Clinic Access Bill, which I believe
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Senator Goodman has just averted to in his
earlier comments.
While my colleagues and I are very
supportive of Senator Balboni's efforts and
Senator Volker's efforts, as he properly
credited the Chair of the Codes Committee, we
believe that their legislation can be improved
with the addition of some language what will
protect women, doctors and clinic workers from
violence, threats of violence and intimidation
and harassment at family planning clinics.
I have not spoken before on the
floor of this distinguished chamber, and it's
appropriate that I do so now and it's very
appropriate that I follow the Dean of my
delegation, Senator Goodman. But this
particular bill is very important to me. My
first job out of high school was as a worker
in a family planning clinic. I think I'm the
only former clinic worker ever elected to the
New York State Senate. More recently I
represented for a number of years clinic
defenders in New York City and I have been
dozens of times in front of clinics as a
witness to the harassment, intimidation and
270
abuse that we seek to address with the clinic
access bill.
I believe that the stalking bill in
no way covers the types of problems we face
every week around New York State and that have
resulted in a reduction of family planning
services to the point that the law of the land
is no longer available to thousands and
thousands of women in our state. I think that
the acts that we're seeking to remedy here are
things that, if you would join me in front of
a clinic on a Saturday morning, I think pretty
much all of my colleagues would agree cannot
be tolerated by the Criminal Law of New York
State. But, unfortunately, the Criminal Law
of New York State does not clearly define the
crimes that we seek to define in the clinic
access bill and does not empower state and
local authorities to weigh in on the side of
patients and doctors in this struggle.
I have seen appalling acts of
intimidation and violence. I have been a
witness to the most offensive racist and
anti-Semitic diatribes I've ever heard in my
life directed at women seeking to secure
271
constitutionally protected medical services.
I've personally spoken to doctors who have to
hire security guards to protect their families
to ensure that their children are not harassed
in their schools. It is time for the State of
New York to send a clear message to local
authorities and to terrorists and harassers
alike that we will not stand for this.
And I appreciate Senator Goodman's
efforts in this area and I commend him, but I
believe the law that has overwhelmingly passed
the Assembly and it has more than enough votes
to pass in this chamber if we allow it to the
floor, goes further in one very critical way
than the federal law, and that's why I would
seek for us to consider this particular bill
and this amendment.
The bill that we are seeking to
pass this year will protect doctors and
patients in their homes and their schools,
away from clinics. That is something the
federal law does not do. And if the
despicable murder of Dr. Slepian at his home
after months and years of harassment,
intimidations, demonstrations abuse does not
272
send home the message that we have to extend
this protection to people's homes, outside of
clinics, I don't know what will.
I think the clinic access bill,
which we have introduced is a narrowly drawn
statute that defines specific criminal conduct
and provides specific authorization for
prosecutors and courts alike. It also
provides a critical civil remedy so that
people being abused and harassed will have a
remedy, can seek something from their
harassers. And I do also urge Senator Balboni
that the use of the civil remedies can also be
a useful addition to the stalking law.
The anti-choice agitators in New
York are seeking to end by violence what they
have been unable to accomplish in the courts.
Their goal is clear and clearly articulated.
Their intention is to end all freedom of
choice in the State of New York. We cannot,
as a state government, allow that to go
forward. The fact that the Governor supports
such a bill, the Assembly has overwhelmingly
supported such a bill and that we have the
votes in this chamber to pass such a bill is
273
consistent with the fact that 82 percent of
the people in our state want better protection
for clinics, for doctors and for women who
seek to obtain legal constitutionally
protected reproductive health serves he.
I strongly urge that we send that
signal, that we do not delay, 14 weeks since
Dr. Slepian was murdered, let's not wait
another week and let's add this bill today and
let's pass it.
ACTING PRESIDENT KUHL: Any other
Senator wish to speak on the amendment?
Senator Oppenheimer.
SENATOR OPPENHEIMER: I'd like to
speak on it.
Well, I appreciate what Senator
Goodman is doing, but I must say I don't agree
with his conclusion. I think that this
stalking bill is certainly one that's a very
significant and an important bill. I think
it's time has come. We're one of the few
states, if maybe the only state in our union
that doesn't have some kind of a stalking
bill.
And most stalking victims are,
274
after all, domestic violence victims. And
I've been very involved in promoting
legislation concerning domestic violence
victims and, certainly, these, the batterers
in almost all these cases harass and terrorize
the women. And as has been stated, 79 or 80
percent are, are females who are subjected to
this. And I think this bill is essential.
And I also have been put up to say
not only is it a superb bill, but the Senator
that's sponsoring it is a superb Senator and a
fine tennis player.
But I really want to address the
amendment because this bill, though it is a
fine bill, as I said, it does not deal with
the problems of clinic access. The
obstructors are sitting there, they are not
following you around, they're not stalking
you, they are sitting there or standing there
and they are simply not permitting you,
through harassment or verbal abuse, to enter
the clinic. This bill would not prevent the,
the harassment we have seen in Westchester
County, where people are obstructing the
clinic in Dobbs Ferry one day and then one or
275
two days later they moved to our White Plains
clinic, this would not begin to touch that
problem. And you think of the woman who is
going. She's seeking healthcare and it
doesn't even have to relate to, to abortion or
any pro-choice issue. This might be a woman
seeking prenatal care, which is taken care of
in our reproductive healthcare clinics. It
might be a woman seeking a mammogram to detect
breast cancer or someone seeking the test for
cervical cancer. I mean, to think that the
only thing that provided in a reproductive
healthcare is abortion is simply not to
understand what family and reproductive health
clinics do. And you think of this woman
trying to reach her provider and being
assaulted with the terrible names that you
have heard, you know, that you have mentioned,
Eric. And what is her fault, her guilt?
She's trying to reach her doctor and she's
being prevented from doing so. And these are
rights that are constitutionally protected for
her to reach her healthcare provider and to
receive healthcare.
And to think that the providers of
276
reproductive healthcare live and work in
constant fear of intimidation and that they
have to go to their offices, the clinics,
their homes wearing bulletproof vests or
having security systems installed in their
homes and in the clinics at enormous cost.
It's senseless. And the fact is, our existing
law is inadequate to protect the civil rights
of these women and of the healthcare
providers.
And this threatening atmosphere and
the violence has really provoked, at this
point, a genuine public outrage. And I think
the people of this state are telling us that
we have to move. And the amendment we're
offering will prohibit harassment at clinics,
offices, homes. It'll increase the criminal
penalties, it will establish civil remedies.
And, Lord knows, civil remedies do a lot of
good because nobody wants to get hit in the
pocketbook or in the wallet. And it also, of
course, provides for injunctive relief.
So I think that we really have to,
have to follow the lead of the Assembly and
also, mind you, that the amendment we're
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putting forth clearly and distinctly
protection First Amendment rights. But First
Amendment rights to speech and to assembly and
all do not require that people walk around
wearing bulletproof vests and have security
systems in their homes and offices. So I
would urge you to take a serious look at this
amendment, and if it does not pass today to
look to bring it up in the form of a new bill
shortly in the future.
Thank you.
ACTING PRESIDENT KUHL: Senator
Paterson, on the amendment.
SENATOR PATERSON: Thank you, Mr.
President. I think in the chamber today we
have witnessed some excellent work by some
very diligent legislators.
Senator Balboni, after examining
the existing laws in our country and the
tendency toward the laws related to stalking
being over broad and perhaps not comprehensive
enough and after consulting with the St.
John's Law Review and the Northwestern
University Law Review brings us a bill that is
far more comprehensive on the subject.
278
Senator Schneiderman adds to that a
firm piece of legislation that would really
establish protection and clinic access for
those who seek reproductive services.
The Assembly has already passed
effective clinic access legislation. So,
therefore, what we might accomplish by passing
this amendment would be, actually, as an
addendum to Senator Schneiderman's amendment,
we're passing a stalking bill that the
Assembly has not passed. So what we would
then do, as a body, is combine these two very
effective pieces of legislation that address
the general issue of personal safety and
personal freedom and send this bill to the
Assembly, which would, I believe,
overwhelmingly ratify it, and then we would
send this right to the Governor. We could do
it right now. The Governor has voiced great
concern for clinic access. Eleven Republican
Senators that have gone on record on this
issue feel exactly the same way. And so, in
that respect, I think we would not only serve
the political interests of the chamber on all
sides, but we would do something that would
279
endear so much to the benefit of so many
civilians around this state who have been
victimized by the types of threats, the types
of violence, the types of degradation that
Senator Schneiderman and Senator Balboni
referred to in their remarks.
So I couldn't be more pleased to
support both Senator Balboni's bill and the
amendment offered by Senator Schneiderman at
this particular time.
There are those who have differing
points of view on the issue of choice, and we
respect those differing individual and
sometimes religious points of view. But while
we cannot legislate morality, we can legislate
to protect those from the immortality of
others. And there is no doubt that we have a
law in this country right now that allows
people certain rights and they should not be
interfered with.
Now, if you yell fire in a movie
theater, you may not actually be directly
affecting in a physical way another person's
life, but when you start in many ways
degrading or engaging in deprecating or
280
horrible remarks toward people who are trying
to exercise their rights when they go to
healthcare facilities to seek reproductive
services, where a decision on their own part
has not even been made, in my opinion, you're
violating the law. You are really going
against the spirit of what we are allowing for
in this country. If there are those who don't
agree with it, they have a right to put
legislation in to change the law. But, at the
same time, when the law actually exists, we
are compelled as a body, we are compelled as
human beings to stand for the rights of our
fellow citizens.
ACTING PRESIDENT KUHL: Senator
Duane on the amendment.
SENATOR DUANE: Thank you very
much, Mr. President. I do want to, at the
outset, say that I support Senator Balboni's
stalking legislation and I also want to speak
in favor of Senator Schneiderman's amendment.
And I speak as someone who has served as a
clinic defender and, in fact, as an escort of
women going in for reproductive services.
I've also provided trainings to people who are
281
interested in learning how to defend clinics
and, in fact, to defend clinics.
I believe very strongly that our
Constitution has guaranteed protection for
access to family planning services, including
reproductive service. And, in fact, when we
do that, we are protecting access to
healthcare.
In New York State, we're losing
reproductive services by attrition. In many
cases, it's too dangerous for providers, it's
too dangerous for property owners to make
space available for providers.
In New York City, we have clinic
access laws which have worked well, not
perfectly, but very well. And I think that we
need to institute that kind of protection on a
statewide basis. I do think today is the day,
now is the time. I don't think we should
hesitate any longer. Clearly, our state cries
out for this kind of protection for people
seeking healthcare services, including
reproductive services. And I would urge my
colleagues to vote yes on the amendment.
Thank you.
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ACTING PRESIDENT KUHL: Senator
Markowitz on the amendment.
SENATOR MARKOWITZ: Thank you
very much, Mr. President. This is one of
those rare issues that I wish we didn't have
to be here discussing it today in the chamber,
but this is one of those issues that reach
importance among Democrats and Republicans,
Long Island, Downstate and Upstate, it impacts
families and especially women all over the
state.
Today we have some providers that
shield and protect battered women. In my
district alone the Park Slope Safe Homes
Project each year holds a vigil in Prospect
Park for women who have been stalked and
murdered either by their husbands or
boyfriends. And it's pathetic and pitiful
that we have to be there each and every year
for these women whose lives perhaps could have
been protected. And that's why, Senator
Balboni, your bill is a positive step forward,
because we have to indicate in every way this
legislature to those that are out there with
the intent to harm women that they may have
283
been married to or living with or going with
that this kind of deplorable behavior will
never be accepted by a civil society. And
this legislature must rise to that occasion.
Senator Schneiderman, your bill is
an excellent step forward. There is no doubt,
there is no doubt that myself twice have been
in front of these clinics, once right here in
Albany, right here, right on Lark Street,
where I saw myself people that use religion in
the most despicable manner, because people
that are truly religious would never speak the
way they speak and threaten the way they
threaten. They use religion and they become
immoral terrorists by their behavior.
And so this legislature should
approve this amendment on the floor today.
This amendment would allow this legislature to
notify these people that use their religion in
a phony way, in a phony way, to use their
religion to prevent the rights of those who
may differ with them on issues who have a
right constitutionally, who are in the most
vulnerable time of their lives, many of them,
that going to these clinics, never with a
284
smile on their face. This is a challenging
personal issue to women and families in our
society, and so that bill, this amendment,
Senator Balboni, and I know how you feel about
this and many of your colleagues, this should
never be politics, this issue. This is one of
those issues we have a chance to make a
statement this afternoon, and let's move this
forward and pass both of these proposed
legislation and then put this society and
these people on notice in New York State that
their behavior will never be tolerated.
ACTING PRESIDENT KUHL: Senator
Hevesi, on the amendment.
SENATOR HEVESI: Mr. President, I
believe to some extent we may be even
underestimating the extent to which this
stalking legislation is necessary. And I
commend Senator Balboni and Senator Volker on
this legislation. I know personally at lease
five women who have related to me tales of how
they have been stalked and the lack of
adequate resources that were available in
order to address their situation. So I
strongly commend them. I would also suggest
285
that providing civil remedy would be a step in
the right direction.
Having said that, it is important
to recognize, and I think that most of my
colleagues in this legislative body would
recognize that this legislation does not
address the problem of clinic access. And as
a result of that, I strongly support the
amendment, offered up by Senator Schneiderman.
And would suggest to my colleagues on the
other side of the aisle that there truly is
nothing in that legislation and this amendment
that is fundamentally inconsistent with
maintaining a pro-life position. This is not
political. This is not partisan. This is
protecting the rights of individuals who have
a Constitutional right to seek reproductive
health services. And as importantly, as
importantly this sends an absolutely,
unequivocal message that we will not tolerate,
as a governmental entity, individuals who have
come to believe that it is acceptable to
practice intimidation and violence in order to
effectuate goals that they have been -- that
they have failed to achieve in the courts.
286
This amendment is absolutely
essential as is the stalking legislation. I
would urge my colleagues both on the
Democratic and Republican side to support both
the stalking bill and the amendment.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Dollinger, for a second time on the amendment.
SENATOR DOLLINGER: Actually, for
the first time, Mr. President, on the
amendment. I believe I spoke on the bill the
first time.
Just briefly on the amendment, Mr.
President. To some extent, this amendment, in
my judgment, is not all that big a deal. And
I'll tell you why. We have a century long
practice in this nation and in this state in
saying that, if you had a constitutional
right, no one should interfere with your
exercise of that right. Whether it was a poll
tax in the south or whether it was
interruptions with people's rights to vote,
the people of this state have been foremost in
this country in standing up and saying, "We
will not let anyone interfere with the
287
exercise of your constitutional rights." We
abolished all those taxes on voting. We're
one of the first states to warmly welcome
women as full participants in the political
process. And yet, here we are, debating a
bill that simply says there's a constitutional
right to seek healthcare on behalf of woman.
And all those women want is the government to
stand up and say, "We support that right given
to you by the Constitution. We will
criminalize anyone who interferes with it,"
and, as Senator Schneiderman's amendment says,
"we will empower you and give you a civil
remedy if for some reason government doesn't
come to your aid, you can take the power of
government in your own hands and seek a civil
injunction that will prevent people from
interfering with your exercise of your
constitutional right." Simple. Simple.
In my judgment, it has almost
nothing to do with abortion. And those are my
colleagues who are pro-life should understand
that is protecting the constitutional right.
The issue and the debate of whether that
constitutional right should occur or not has
288
already been resolved. And all that this bill
seeks to do is bring the power of government
to side with the individual to protect their
constitutional right.
To all my Republican colleagues,
I'll close with one thought. I come from a
community that gave birth to two great civil
rights leaders, Susan B. Anthony and Frederick
Douglas. They were both Republicans. And I
dare say that, if they were both sitting in
this chamber as members of this house, they
would never turn down an opportunity to say to
the people of this state, when you exercise
your constitutional rights, you are entitled
to the protection of government in doing so.
They, I believe, would sit here and tell you
this is the fundamental purpose for which
government was created; that is, to respect
the individual in their election of their
civil rights and to protect that individual
from interference by another party.
I would submit that the Grand Old
Party, as Frederick Douglas and Susan B.
Anthony knew it, would be standing with
members of this side of the chamber and
289
welcome the opportunity to provide civil and
criminal protection to those of our citizens
who exercise their individual rights granted
to them by the Constitution of this State and
of this nation. There is no more important
thing that we could do than to preserve the
exercise of those rights.
ACTING PRESIDENT KUHL: The
question is on the amendment.
All those in favor signify by
saying aye.
(Response of "Aye.")
SENATOR PATERSON: Party vote to
accept.
ACTING PRESIDENT KUHL: Secretary
call the roll on the amendment.
SENATOR SKELOS: Party vote in the
negative.
ACTING PRESIDENT KUHL: Record the
party line vote with exceptions.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the party line vote with exceptions. Announce
the results.
THE SECRETARY: Ayes 21. Nays
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37.
Party vote with an exception.
ACTING PRESIDENT KUHL: The
amendment fails. We're on the bill.
Senator Balboni, to close.
SENATOR BALBONI: Thank you, Mr.
President.
The discussion we've had today is
unique in that it's happened here but it
hasn't happened there. We have passed this
bill on successive occasions. The Assembly
has not. We need to act today to try to get
them to act tomorrow.
I'd like to thank all of the
members on the Democratic side who have risen
in support of the bill. But I'd also like to
point something out. Recently we have taken
to naming the measures that we have considered
in this body as they relate to victims. It is
a powerful message that resonates not only
with us but with our constituencies. This
measure has no name. Let's try to keep it
that way.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Secretary
291
will read the last section.
THE SECRETARY: Section 11, this
act shall take effect on the 1st day of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Chair
recognizes Senator Waldon to explain his vote.
SENATOR WALDON: Thank you, very
much, Mr. President, my colleagues. No one in
this nation should be denied his or her
constitutional rights. Therefore, I'm hoping
that at some later date the wisdom of this
body will be to pass a clinic access bill to
ensure that our women and others who work in
the area of reproductive services are not
intimidated nor made fearful in terms of what
is their right to work, what is their right to
receive services and what is their right,
their God given right to make decisions about
their bodies.
However, I would encourage my
colleagues to vote for this particular
proposal that we have before us at the moment.
292
And my reasons are very real and simple. When
I was a police officer, I went to many family
dispute situations, some which resulted in the
spouse being killed and some where she was
just beaten beyond recognition, or perhaps not
quite as violently attacked. But in many of
those instances, the woman had in her hand an
Order of Protection. And in recent times, as
a legislator, I have received many calls from
constituents who asked me to help them to do
something because they had an Order of
Protection and they were still being hassled,
harassed and oftentimes beaten.
So we have a moral obligation, in
my opinion, to vote up on this proposal,
because if we can save between today and
tomorrow just one woman, one child, one person
from being beaten, maimed, harassed or
psychologically intimidated by putting this on
the books of the State of New York, we have
done our duty as legislators.
Thank you, my colleagues. Thank
you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Waldon, how are you voting?
293
SENATOR WALDON: (Affirmative
indication.)
ACTING PRESIDENT KUHL: Senator
Waldon will be recorded in the affirmative.
Senator Montgomery to explain her
vote.
SENATOR MONTGOMERY: Yes, Mr.
President, to explain my vote.
I am -- I want to, first of all,
thank the sponsor of this legislation, Senator
Balboni, because it is, it is a measure that
is intended to protect what I believe to be
women in this state. I'm happy that it
doesn't have a name because it's for all of
us, it's for both women and men, but
especially women. And I, certainly, have been
stalked myself, and it's a very fearful
experience, frightening experience to have.
And I believe this speaks to me personally as
well as all of the other people in -- who find
themselves with that problem.
I am very pleased also that Senator
Schneiderman has brought or attempted to bring
legislation that would protect women who use
clinics in this state. I personally use a
294
women's clinic. I prefer that because it's
more comfortable for me in terms of my
healthcare and I would be horrified if I
walked out of the clinic to find people
standing around. I think it is a matter of my
civil rights, my right to access to healthcare
and my right to privacy. So we need that
legislation. It is -- and, again, I say I'm
happy that we have no name on either of these
bills because it's not in the name of someone.
It is to protect all of us, who I believe have
every right to seek out the services.
So, Mr. President, I'm voting in
the affirmative.
ACTING PRESIDENT KUHL: Senator
Montgomery will be recorded in the
affirmative.
Announce the results.
THE SECRETARY: Ayes 58.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
at this time, would you please call up
Calendar Number 17, by Senator Maziarz.
295
ACTING PRESIDENT KUHL: Secretary
will read.
THE SECRETARY: Calendar Number
17, by Senator Maziarz, Senate Print 652, an
act to amend the Criminal Procedure Law.
ACTING PRESIDENT KUHL: Secretary
will read the last section.
THE SECRETARY: Section 4, this
act shall take effect on the 1st day of
November.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Senator
Duane, why do you rise?
Is it to explain your vote?
SENATOR DUANE: I rise to explain
my vote, Mr. President.
ACTING PRESIDENT KUHL: All
right. Senator Duane will explain his vote.
SENATOR DUANE: I'm voting no on
item Number 17 for two reasons, in particular.
One is I am very concerned about capturing 16
to 18 year olds within the provisions of this
legislation and that they are then forever
296
within the confines of some of the provisions
of Meagan's Law. I don't think that 16 to 18
year olds, specifically, should be captured in
that way by this legislation. And also,
generally, I'm concerned about weakening the
discretion of D.A.s and judges in this matter.
And, finally, there were two other
items of legislation which I voted nay on
previously for which I voted for the same
reasons as I stated for 17.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: Senator
Duane will be recorded in the negative.
Announce the results.
THE SECRETARY: Ayes 57. Nays 1.
Senator Duane recorded in the
negative.
ACTING PRESIDENT KUHL: Bill is
passed.
THE SECRETARY: Excuse me, also
Senator -
ACTING PRESIDENT KUHL:
Montgomery in the negative.
SENATOR MONTGOMERY: Thank you.
ACTING PRESIDENT KUHL: Okay.
297
THE SECRETARY: Ayes 56. Nays 2.
ACTING PRESIDENT KUHL: The bill
is passed.
Mr. Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Children and Families Committee at the desk.
I ask that it be read.
ACTING PRESIDENT KUHL: There is.
I'll ask the Secretary to read.
THE SECRETARY: Senator Saland,
from the Committee on Children and Families,
reports:
Senate Bills 587, by Senator
Skelos, an act to amend the Domestic Relations
Law;
980, by Senator Skelos, an act to
amend the Domestic Relations Law;
1013, by Senator Saland, an act to
amend the Family Court Act;
1018, by Senator Skelos, an act to
amend the Family Court Act and the Criminal
Procedure Law;
1404, by Senator Saland, an act to
298
enact the Juvenile Justice Reform Act.
All bills directly for third
reading.
ACTING PRESIDENT KUHL: Without
objection, the bills are ordered directly to
third reading.
Senator Skelos.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT KUHL: There is
one motion, I believe, that's on the floor,
Senator Skelos.
Chair recognizes Senator Fuschillo
for the purpose of the -
SENATOR FUSCHILLO: Mr.
President, on page number 6 -
ACTING PRESIDENT KUHL: -- for
motions and resolutions.
SENATOR FUSCHILLO: Thank you,
Mr. President. On page number 6, I offer the
following amendments to Calendar Number 39,
Senate Print Number 562 and ask that said bill
be retained on the third reading.
ACTING PRESIDENT KUHL: Motion is
received and adopted. Bill retain its place
299
on Third Reading Calendar.
Senator Skelos, it's also noted at
the desk that Senator DeFrancisco, on
Resolution 245, which was adopted earlier
today, which recognizes February as Black
History Month, would like to open that
resolution to the other members.
SENATOR SKELOS: I have no
objection to that.
Senator Paterson?
Senator DeFrancisco would like to
open up the resolution on Black History Month
to the entire Senate for sponsorship.
SENATOR PATERSON: Let me think.
Yes, I think that would be fine.
ACTING PRESIDENT KUHL: Should we
place all the members on the resolution,
Senator Skelos, and those that do not wish to
be on it indicate to the desk?
Direct the Secretary to do such.
Senator Skelos.
SENATOR SKELOS: Mr. President,
on behalf of Senator Bruno in consultation
with Senate Minority Leader, hands up the
following Commission appointment by Senator
300
Connor and ask that it be filed in the
Journal.
ACTING PRESIDENT KUHL: Chair
will direct the Commission appointment be
filed with the Journal Clerk.
SENATOR SKELOS: No other
housekeeping, Mr. President?
ACTING PRESIDENT KUHL: That
competes it Senator Skelos.
SENATOR SKELOS: There being no
further business, I move we adjourn until
Monday, February 8th, at 3 p.m., intervening
days being legislative days.
ACTING PRESIDENT KUHL: Without
objection, the Senate stands adjourned until
Monday, February 8th, at 3 p.m., intervening
days to be legislative days.
(Whereupon, at 12:28, the Senate
adjourned.)