Regular Session - February 8, 1999
310
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 8, 1999
3:04 p.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 will
come to order.
I ask everyone present to rise and
repeat with me 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,
Friday, February 5th. The Senate met pursuant
to adjournment. The Journal of Thursday,
February 4th, 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.
Messages from the Governor.
312
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Goodman,
from the Committee on Investigations, Taxation
and Government Operations, reports:
Senate Print 131, by Senator
Maziarz, an act to amend the Alcoholic
Beverage Control Law;
761, by Senator Johnson, an act to
amend the Tax Law;
1015, by Senator Skelos, an act to
amend the Executive Law.
Senator Nozzolio, from the
Committee on Crime Victims, Crime and
Correction, reports:
Senate Print 115, by Senator
Skelos, an act to amend the Correction Law;
116, by Senator Skelos, an act to
amend the Correction Law and the Vehicle and
Traffic Law;
634, by Senator Nozzolio, an act to
amend the Correction Law;
635, by Senator Nozzolio, an act to
amend the Executive Law;
637, by Senator Nozzolio, an act to
313
amend the Correction Law and the Public Health
Law;
642, by Senator Nozzolio, an act to
amend the Correction Law; and
1480, by Senator Meier, an act to
amend the Executive Law and the Social
Services Law.
Senator Bonacic, from the Committee
on Housing, Construction and Community
Development, reports:
Senate Print 703, by Senator
Nozzolio, an act to amend the Executive Law;
and
Senate Print 1455, by Senator
Volker, an act to amend the Private Housing
Finance Law.
All bills ordered direct for third
reading.
THE PRESIDENT: Without
objection, all bills directed to third
reading.
Reports of committees -- select
committees.
Communications and reports from
State officers.
314
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Holland, on
page 5, I offer the following amendments to
Calendar Number 49, Senate Print 17, and I
ask that that bill retain its place in the
Third Reading Calendar.
THE PRESIDENT: The bill will
retain it's place on the Third Reading
Calendar.
The amendment received.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there's a privileged resolution at
the desk sponsored by Senator Lack. May we
please have the title read and I move for its
immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Lack,
Legislative Resolution honoring Marcy Tublisky
upon the occasion of her designation for
special honor for 10 years of service to the
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community of Hauppauge, New York and to the
Hauppauge Industrial Association.
THE PRESIDENT: 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.
Senator Skelos.
SENATOR SKELOS: Madam President,
could we take up the non-controversial
calendar, please?
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
13, by Senator DeFrancisco, Senate Print 537,
an act to amend the Criminal Procedure Law in
relation to access to sealed records.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
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66, by Senator Stafford, Senate Print 773, an
act to amend the Environmental Conservation
Law in relation to non-hazardous municipal
landfill closure.
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 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
71, by Senator Rath, Senate Print 120, an act
on amend the Criminal Procedure Law in
relation to prohibiting issuance of an order
of recognizance or bail.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4, this
act shall take effect on the 30th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 46.
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THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
73, by Senator Volker, Senate Print 725, an
act to amend the Penal Law in relation to
endangering the welfare of a child in the
first and second degrees.
SENATOR DUANE: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
75, by Senator Balboni, Senate Print 859, an
act to amend the Penal Law in relation to
increasing the criminal penalties for sexual
performances by a child.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 12, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
THE PRESIDENT: The bill is
passed.
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THE SECRETARY: Calendar Number
76, by Senator Skelos, Senate Print 973, an
act to amend the Penal Law in relation to
sexual assault against a child by a person in
a position of trust.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
81, by Senator Johnson, Senate Print 1589, an
act to ament the Penal Law in relation to
criminal contempt in the first degree.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
82, by Senator Volker, Senate Print 1592, an
act to amend the Penal Law and others in
relation to enacting the Sexual Assault Reform
Act of 1999.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
101, by Senator Skelos, Senate Print 1018, an
act to amend the Family Court Act and the
Criminal Procedure Law in relation to the age
of child witnesses.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes 47.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
non-controversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could take up the controversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
13, by Senator DeFrancisco, Senate Print 537,
an act on amend the Criminal Procedure Law in
relation to access to sealed records.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: If we could just
wait one mine.
THE PRESIDENT: Senator
DeFrancisco, an explanation has been asked for
on Senate 537.
SENATOR DeFRANCISCO: Yes.
This bill passed unanimously last
year. And, basically, what it is, it
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authorizes obtaining records of professionals
if it's proven before the Supreme Court
Justice upon application with notice to the
professional that there are extraordinary
circumstances that would require disclosure of
sealed information.
The concept is basically this. If
I'm an attorney and I'm investigated in a
criminal case and those criminal cases are -
case may very well have been dismissed, the
fact of the matter is there is another branch
that deals with criminal or non-criminal
conduct; namely, the licensing agency and,
namely, the Appellate Division. So as a
result, it may not be enough to go through a
criminal proceeding beyond a reasonable doubt
but it may be information that's necessary to
go, go into an investigation as on the ability
of the attorney to practice. And under
extraordinary circumstances, the Supreme Court
Justice could open those records and have them
available for that purpose also with notice of
the -- to the individual whose records are
sought to be reviewed.
THE PRESIDENT: Senator Paterson.
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SENATOR PATERSON: Madam
President, would the distinguished Senator
from Syracuse yield for a question?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Senator, there
are five classes of professions, attorneys,
doctors, dentists, pharmacists and nurses,
that this legislation would apply to. And my
question is, do you think that the distinction
of these five professions -- when I think the
Office of Professional Discipline supervises,
I believe 32 different professions, then the
legal and medical communities have their own
method of supervision -- the question that I
would have would be, doesn't that create a
kind of arbitrariness to the law?
Why don't we just leave it open
generally if the circumstances are as serious
and as extraordinary as would merit unsealing
the records?
SENATOR DeFRANCISCO: I think
that's a valid point. It can be open up to
all professions. I limited it, primarily, to,
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hopefully, make it reach those professions
that have an extreme impact on an individual,
whether it be an attorney or a medical
provider. So it seems to me that it could be
open up to other professions as well.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Okay. Thank
you. I'm sorry. Madam President, if the
Senator would yield for one last question.
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Senator, do you
yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead,
Senator.
SENATOR PATERSON: Senator, I get
a feeling from this type of legislation, and I
voted for it last year, but then again I got
paid last year so I thought if I was getting
paid again this year I might think it over
again. And I was wondering if it doesn't
appear almost as if there's a notion that
smacks of double jeopardy, where a person's
case has already been disposed and there was a
decision to seal the records, what would there
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be that would be so important that even under
an extraordinary circumstance we might want to
investigate it?
And while I am going to vote for
the bill, I would wish that you might
alleviate some of my concerns on that issue.
SENATOR DeFRANCISCO: Well, if a
person's criminal case is terminated, for
whatever reason and records sealed, that does
not double jeopardy in him being sued civilly
for a lower standard of proof, the
preponderance of the evidence rather than
beyond a reasonable doubt. Similarly,
whatever happens in a criminal case does not
in any way have binding effect over licensing
agencies and disciplinary agencies that
monitor the profession. So I don't think
double jeopardy applies in this particular
case.
And what would be extraordinary
circumstances, I think that if someone is
under investigation and there is a question,
hopefully, probable cause that this person has
committed other acts of misconduct, they would
want to review the entire record before making
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a decision, and this particular, the aspect,
the aspect of the criminal proceeding may give
that weight one way or the other as to whether
the person should be disciplined or, in the
case of an attorney, disbarred or suspended.
SENATOR PATERSON: Thank you,
Senator.
THE PRESIDENT: Senator Paterson.
Senator Dollinger.
SENATOR DOLLINGER: Madam
President, would the sponsor yield just to one
question?
THE PRESIDENT: Senator, do you
yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead,
Senator.
SENATOR DOLLINGER: In many
cases, my understanding, Senator, is that, as
part of the resolution of these complaints,
there's a pledge of confidentiality granted,
which is all part of the bargaining in which
these decisions are arrived at; that the
professional is bargaining, trading off some,
perhaps, greater penalty or greater financial
326
penalty in trade for a pledge of
confidentiality.
My question is, is that in any way
accommodated in this, if they're -- in other
words, the party that's accused has, in
essence, entered into a freely negotiated deal
for a pledge of confidentiality, is that
anywhere accommodated here, that -
SENATOR DeFRANCISCO: I really
don't understand the question.
Where is this, where is this
negotiated deal?
Can you give me an example? I'm
not familiar with what you're talking about.
SENATOR DOLLINGER: Well, I
assume that this deals with disciplinary
records and other -- or this deals with
criminal records and/or other records.
Maybe I'm missing the explanation,
Madam President.
SENATOR DeFRANCISCO: Well, if
you're saying that it was a negotiated deal to
terminate the criminal proceeding, there could
have been and there may not have been. It may
be that the individual's given an adjournment
327
in contemplation of dismissal which seals the
records after six months. It may not have
been negotiated. So I don't think that the
intent of this bill has really to address
whether or not there was a negotiated deal or
simply a dismissal or an adjournment in
contemplation of dismissal, which may not have
been negotiated. So I don't think the act of
negotiation has anything to do with this
particular event.
In any event, if it was a
negotiation of a criminal proceeding, once
again, it has nothing to do with the
subsequent civil or disciplinary proceeding.
SENATOR DOLLINGER: Okay. Thank
you, Madam.
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 53. Nays 1.
Senator Duane recorded in the
negative.
328
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
73, by Senator Volker, Senate Print 725, an
act to amend the Penal Law in relation to
endangering the welfare of a child in the
first and second degrees.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: You want an
explanation?
Madam President -
THE PRESIDENT: Senator Paterson
has asked for an explanation.
SENATOR VOLKER: Yes. Okay.
THE PRESIDENT: Please proceed,
Senator. Go ahead.
SENATOR VOLKER: This is a bill
that passed the Senate last year by a vote of
56 to nothing. And what it would do is to
create, primarily to create a felony level
crime of endangering the welfare of a child.
I think last year we discussed some
of the, what I would consider, somewhat horror
stories about some of the crimes that were
committed against people under, under 17, 16
329
and under, by certain people and where the -
because of the way the sentencing structure
works, the maximum penalty, in most cases, is
a class A misdemeanor, which means they could
only be sentenced to up to a year in jail.
Most often, what happens because of that and,
particularly, that's I think so in New York
City, where we all know anything under a
felony is, frankly, not looked on as very much
and usually ends up in probation or parole, in
some cases. And so what this bill really does
is create a felony level endangering the
welfare of a child where a repeat offender
could be charged with a D felony. The crime
would apply to repeat offenders and also
individuals who act in a manner which creates
a substantial risk of serious fiscal -
physical injury or prolonged impairment of
mental and emotional condition of a child 16
or younger.
At the present, first offense would
be still a class A misdemeanor but the second
offense could be a class D felony, which I
believe is three to eight. In other words, it
could be an indeterminate sentence of three to
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eight years, if I'm not mistaken.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Madam President,
if the sponsor would yield to a question?
THE PRESIDENT: Senator, do you
yield?
SENATOR VOLKER: I certainly do.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Thank you, Madam
President.
The phrase "for prolonged
impairment of the mental or emotional
condition of a child less than 17 years old,"
is this already defined in the Penal Law or is
it somewhere addressed in the statute or would
it remain open to interpretation at some other
point?
SENATOR VOLKER: Senator, there
are some definitions of impairment, but this
specific definition -- in fact, I think it may
have come from a court case. And I think, as
we discussed in the committee, you deal with
what's called the mens rea the issue. Certain
issues are not completely easily defined, and
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I guess this is one of them, and the decision
could be a jury decision or, in some cases, I
guess could be a judge's decision, as we know.
And you have to develop some sort of scenario
or some sort of evidentiary scheme to
determine what this constitutes. So the
answer is, although there are some definitions
in the Penal Law, this specific language is
not defined, although it has been used in a
number of court cases that helped to determine
endangering, I believe on both the civil and
on the criminal side, if I'm not mistaken.
SENATOR DUANE: If the sponsor
would yield to one additional question?
SENATOR VOLKER: Sure. Yes.
THE PRESIDENT: Senator continues
to yield.
SENATOR DUANE: Could you just
tell me in which cases you believe that those
have -- are they persons with mental
impairment or -
SENATOR VOLKER: Oh, no. No.
These are cases just involving young, young
individuals who were put upon, for one reason
or another, by individuals, most of the time
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relatives, and who were over a period of
time -- generally speaking, these cases come
out, and as, frankly, somebody who
investigated some of these cases many years
ago, what usually happens is that you will
find out about it from someone else and then
the child will finally come forward. These
are very difficult to prove because, generally
speaking, if you have any dealing with these
cases, you'll find out that usually the
testimony of the young persons is not
sufficient and you have to have some other
evidence besides that or else you can't, you
can't really get a conviction.
So if anyone thinks that the fact
that we make this a D felony makes this an
easy one to prove, I am the first to tell you
that's not necessarily so. But what you're
trying to do here is set up some sort of
statute that allows a person who you can show
this problem has occurred, that you can be
able to accept the proof and once a person is
convicted then they can receive a severe
sentence, rather than have a young person go
through an entire trial, for instance, in some
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cases, and then end up having the person
sentenced to virtually nothing because there
was no penalty to back it up.
SENATOR DUANE: And, finally,
through you, Madam President, I am very -
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR VOLKER: Yes. I'm sorry.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: I am very, very
supportive of the spirit and absolutely see
the need for this and plan on voting in the
affirmative, but I will continue to have some
concerns regarding the ultimate interpretation
of that language but I think it's important
that we get it moving so we can even get to
that point.
Thank you, Senator.
SENATOR VOLKER: Thank you,
Senator.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: Thank you,
Senators.
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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 PRESIDENT: Senator
Montgomery, to explain your vote.
SENATOR MONTGOMERY: Yes. Thank
you, Madam President.
I'm just -- I know that I must have
voted in the affirmative last session when it
was introduced, but I have some question in my
mind now regarding this. And that is simply
this: That there probably are a number of
parents who may fall under this statute, and
while, certainly, anyone who abuses a child
should be dealt with appropriately, in many
instances there are social issues,
psychological issues, other issues related to
family situations that may result in a parent
hitting a child. And I certainly would not
want to summarily have that parent be
subjected to this statute without some attempt
at intervention that would be helpful or that
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would be an attempt to help resolve some of
the, some of the causes of this kind of
outcome.
So I'm going to vote no, although I
certainly agree with the spirit of the
legislation that Senator Volker has
introduced, but I do have some very serious
questions and I just don't want to go forward
and be recorded in the affirmative on this at
this time.
Thank you.
THE PRESIDENT: Announce the
vote.
THE SECRETARY: Ayes 56. Nays 1.
Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
82, by Senator Volker, Senate Print 1592, an
act on to amend the Penal Law and others.
SENATOR WALDON: Explanation.
THE PRESIDENT: Senator Volker,
Senator Waldon has requested an explanation.
SENATOR VOLKER: Madam President,
336
this, this bill is the Sexual Assault Reform
Act of '99. And this is a Governor's Program
Bill. One of the questions that was asked in
our committee was how's this different from
the Sexual Assault Reform Act of '97 and '98?
And the major answer to that is it is the only
real change in this bill, and I think there
was some confusion in the Assembly about the
DNA provisions in this bill. And I think it
was primarily because they weren't stressed
last year. But, in reality, after we went
through this entire bill, there really isn't
one change. The only change that this bill
says '99 instead of '98. So that's the real
change. In other words, there's no
substantive change.
What the bill does is -- it's
passed this House twice, by the way. Passed
last year by a vote of 56 to nothing.
What the bill does is is really a,
primarily it is a revision and a change of the
sexual assault statutes in this state. And
the public publicity on this bill says about
24 years. In reality, some of these statutes
are older than that. There's pieces of this
337
bill I think are about 40 or 50 years old. It
revises some statues that, frankly, we've been
looking to revise for many, many years.
Forget the issue of upgrading penalties, which
is in this bill. We actually make some
changes in definitions which court cases have
done over the period of years.
There really are, I think, other
than the upgrades in penalties, which I think
are very important, and the upgrades in
definitions, there's about four areas that, in
all honesty, are, you know, the most important
areas in this bill.
First of all, there are several
areas that go beyond the issue -- and I want
to put this right up front because that
question came up last year. We might as well
deal with it right up front. As you know, I'm
a great believer in that. The prosecutor
appeal provision in this bill, which means
that a prosecutor can appeal a lenient
sentence or bail, if you read it literally, it
goes beyond the issue of just what's in the
Sexual Assault Reform Bill. It actually would
apply to other situations beyond this bill.
338
Just so that you're aware. In other words,
this doesn't just apply to sexual assault and
to the sexual assault provision of this bill.
It would apply in general to other sentencing
structures and so forth. So that prosecutor
appeal provision is beyond just the issue of
what's in this bill.
Of course, that provision was also,
I believe, in one of the other Governor's
bills, one of the other Governor's procedural
bills, which we've passed for the last several
years also. Just so that everyone
understands.
Second thing is, this bill would
set up a, what essentially is a new crime,
although some would argue that the crime has
always been there, of so-called date rape
crime. It modernizes, as I call it, the
provisions and makes it easier to deal with
the so-called issue of date rape.
Somebody said just recently on a
local program, that you don't like the word
date rape because rape is rape. And I think
that's true. But because of the nature of how
these situations happen and the use of special
339
drugs, in many cases, and things like that,
there are some provisions in this bill that
would deal with, unfortunately, the changes
that have occurred in society that make
so-called date rape a problem.
Thirdly, there's an expansion in
here of the use of DNA. It would allow for
greater use of DNA evidence in sex crimes. It
is something, by the way, that, as I said,
some of the Assembly people said, "But that's
an expansion from last year's bill."
Actually, just I think some didn't realize
last year that that was in this bill, but it
was actually -- it's been in this bill for the
last several years.
Another provision in here relates
to the expansion of Senator Skelos's -
Senator Skelos passed this bill called Megan's
Law. And it provides the registry provisions,
the community notification provisions as
regards sexual assaults. That's a natural
part of this bill in a way, since you're
changing so many provisions involved in the
sex laws, you'd almost have to do that to keep
up with the changes.
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And, finally, one of the things
this does is somewhat controversial, although
it shouldn't be really controversial since the
courts have already thrown out, it eliminates
the marital exemption, the so-called marital
exemption, rape exemption, so forth, which
the courts have said is illegal, anyways.
Although, we've never actually eliminated it
from the Penal Law, this bill would eliminate
the so-called marital exemption from the Penal
Law, which means, obviously, that a husband or
wife could be charged with rape if the
situation accorded itself. That is primarily
the law now because, as I say, courts have
said that it is the law, but we've never
changed it.
That basically is the bill. It is
a comprehensive bill. It has a lot of
provisions in it, but it is primarily, I would
think you'd have to characterize it as a major
upgrading and enhancing of the entire sexual
assault provisions in the Penal Law of this
State.
SENATOR WALDON: Madam President,
would the gentleman from Western New York
341
yield to a question or two?
THE PRESIDENT: Senator Volker,
do you yield?
SENATOR VOLKER: Madam President,
I yield to the Senator from New York City from
Queens.
THE PRESIDENT: Go ahead, Senator
Waldon. I assume he's referring to you.
SENATOR VOLKER: Yes.
SENATOR WALDON: We're not yet in
step, but we're getting there.
Senator, one of the concerns I had
regarding this proposal and we discussed it in
committee and maybe it would be helpful to our
colleagues if you were to speak to the issue
of prior bad acts.
Traditionally, in this country and
in this state, for a prior criminal behavior
or propensity to be introduced, the rule has
been or at lease the practice has been that
there was a conviction attached to it. You
don't necessarily, other than perhaps the
Mollino (phonetically) situation, introduce
evidence of prior acts without conviction.
One, in your explanation of prior
342
bad acts, would you tell us whether or not a
conviction is required?
And, two, could you define it for
us so that we'll all understand it?
SENATOR VOLKER: Well, I think,
Senator, that there is a, there is a limited
use of, as you know, in this bill, of the use
of prior bad acts. Although, the way it's,
the way it's couched, it does allow
protections for somebody who would be in this
kind of a situation. And as we discussed in
committee, in many cases, this sort of thing
occurs anyways in the sentencing process. But
it is -- given the nature of sex crimes today,
it seems as if this, this type of provision
really can make sense in drawing a parallel or
a -- in setting up an evidentiary trail. And
I think the defendant has the right, as you
know, all the way along the line to make
objections and to bring in his or her own
evidence. And it would -- what it does really
is to, I think, of course, sort of modernize
the way criminal justice statutes are couched
pretty well in other states in the union.
We're not, by any means, we're not breaking
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new ground here. What this really is doing
is, I think, putting New York law into a
situation that is very similar to what most of
the major states in the union already have, as
I understand it.
SENATOR WALDON: Would the
gentleman yield again, Madam President?
SENATOR VOLKER: Certainly.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator, there's
another area which you've already addressed
which causes me some concern and you explained
it to us, but I would like to ask, if you
know, why the ability to appeal the lenient
sentence component, the unduly lenient
sentences was put here applicable to crimes
other than a sex assault bill. Would it not
have been better that it were placed in the
particular area; i.e., a particular crime that
the Governor wanted it applied to, as opposed
to now having the ability to expand it from
this crime to all other crimes?
SENATOR VOLKER: I can't say as I
know, except that you and I are well aware
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that the district attorneys have asked for the
right to appeal lenient sentences and bail for
many, many years.
And, as I said, this provision
actually was also in the -- what is it called?
The Procedural Reform Act of 19 -- well, it
was '97 or '98, and now it's going to be '99
again, which the Governor, I believe, had sent
to us.
I can't answer specifically why
it's in here, but I think a major reason it's
in here is that one of the areas I think that
many of the prosecutors feel most strongly
about is in the area of sex crimes and where
they would like the ability at least to make,
to make an appeal where, for one reason or
another, they feel that the decision was
improper. And under the present rules of
evidence, of course, they can't do that.
So I guess the answer would be, and
although I haven't been officially told this,
I'm just speculating, that the reason I think
it's in there is because of, specifically
because this is a specific area where it's a
problem and I think the Governor's people
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probably felt that this was an appropriate
place to make the changes.
SENATOR WALDON: The last
question in this line of question, Madam
President, would the gentleman yield again?
THE PRESIDENT: Senator Volker,
do you continue to yield?
SENATOR VOLKER: Yes, I certainly
will.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Thank you, Madam
President. Thank you, Senator.
Senator, will this proposal, that
bill, if it becomes law, interfere with,
severely, I should say, interfere with
judicial discretion in terms of sentencing?
I'm speaking now about the
sentencing appeal reform part of the proposal.
Does it take away the judge's discretion to
properly sentence an individual?
SENATOR VOLKER: This bill, I
don't think, would really -- I suppose it
would make some limitations, but you and I
know the limitations, that many of the
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limitations were already made by Jenna's Law.
And there's proposal by the Governor this year
to further provide definite sentencing. And I
don't know if you could characterize it as
limiting. You could, in a sense, limit the
judge's discretion. Of course, when you do
definite sentencing, the judge already knows
that when he makes a sentence, he knows what's
going to happen. In other words, it's going
to be six, seven and so forth.
So I don't know if you could really
say that this bill necessarily creates any
more major limitations. What it will do,
however, is give the judge the ability to give
more severe sentences, and that's pretty
clear.
SENATOR WALDON: Thank you
Senator.
Madam President, on the bill.
THE PRESIDENT: Yes. Go ahead,
Senator Waldon, on the bill.
SENATOR WALDON: Thank you very
much, Madam President.
To my colleagues, when we were in
committee, if you recall, I voted without
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recommendation. I had some concerns about the
bad acts phrase, prior bad acts. I had some
concern about the sentencing component. I had
some concern about the ability to appeal
unduly lenient sentences.
And though I still have a
smattering of those concerns, when I think of
the type of crimes that we're addressing with
this proposal, it becomes extremely difficult
for me, from a conscience perspective and from
a moral perspective, from a man who has a
daughter, who has a wife of 37 years, soon to
be 38 -- she still lives with me. I don't
understand why, but she still is -- to know
that they can be endangered by the predators
in the street who commit these heinous acts,
and, therefore, despite the shortcoming, as I
see them, of this proposal, I must support
this legislation. I think we need to send a
signal and a message which says that there are
certain acts, no matter what, you cannot
permit them to be pervaded against the people
of this great state. So I would encourage my
colleagues to support this proposal and to
vote up on it.
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Thank you, Madam President.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
Would the sponsor yield to a
question?
THE PRESIDENT: Senator, do you
yield?
SENATOR VOLKER: Absolutely,
Madam President.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Thank you.
I would just like to request a
clarification that this bill would eliminate
the consensual sodomy statute. That it's
removed as a sex offense or a misconduct?
SENATOR VOLKER: Senator, you're
right. I didn't specifically -- I had
mentioned the marital exemption. That's one
thing I forgot to mention.
You are right. It -- in fact, I
said that that was the other side of the coin
that I was going to mention.
As you know, the courts have
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essentially -- well, they have already said
that consensual sodomy statute is illegal,
inoperative. This bill would eliminate that
provision which has already declared
inoperative from the Penal Law. That's true.
SENATOR DUANE: Thank you.
And one final question, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR DUANE: Is reform of
serial rape, is that issue addressed in this
bill?
SENATOR VOLKER: Not really. I
think what you're -- I think what you're --I
know what you're talking about.
You could argue that this would
certainly improve the ability to deal with
serial rape, but I think that there are some
other legislation that will be coming forth
that would more thoroughly deal with the issue
of serial rape. But this would, in this
sense, that we're toughening up the penalties
and raising the penalties, so that you could
actually, you could actually sentence a person
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who is a serial rapist to much longer terms.
But, in reality, there are still, I think,
some things that need to be done in the area
of serial rapists.
SENATOR DUANE: One final moment,
Madam President.
THE PRESIDENT: On the bill,
Senator?
SENATOR DUANE: Yes.
THE PRESIDENT: All right. You
may proceed on the bill.
SENATOR DUANE: I'm intending on
voting yes on this bill; however, I had made
the comment when we voted on a serial rape
bill last week that I thought that that would
have been better addressed in this bill. And
I continue to believe that. And I am
disappointed that that was not, if, as it
seems to be the case, it is not, and my
reading of it says it is not part of this.
Thank you.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. I rise just to echo a few
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sentiments that my colleague, Senator Waldon,
mentioned and that were subject of discussion
with respect to the bad acts language in this
statute.
I agree with Senator Waldon that
most of this bill does good things. I'm
concerned about the bad acts provision because
of the danger -- just let me rattle off a
couple of them. The bad act that is used as
the basis for evidence in a felony case is a
bad act relating to a misdemeanor. The bad
act that's used as evidence in an intentional
case, is the bad acts of a non-intentional
conduct. The bad act that is used in the
case, potentially, could be the kind of bad
act which results in a conviction which is
later overturned on appeal. All of that bad
acts information can come before trial, and
the danger of bad act information is that it
creates a mini trial within a trial. That is,
it requires proof of the bad act and then a
defense of the bad act before it can be
considered by the jury on the substantive
issue of the trial.
I would just suggest, Senator
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Volker, I understand the experiment. It's
been tried with the federal government. The
federal government has done this, I believe,
since 1994. I don't know that the jury is in,
so to speak, on whether that has achieved the
goal of a better administration of justice in
the federal system. But what I would suggest
is, because this provision really extends,
especially, in the area of sexual assault,
where intent and levels of crimes depend on
all kinds of factors, age, intent, conduct, a
wide gamut of conduct, I would just urge you
to consider a sunset provision in this portion
of the bill, so that at some point, five years
from now, seven years from now, we'll force
ourselves to go back and look and see whether
the bad acts language has actually promoted
justice, or, and it runs this risk whenever
you allow unindicted acts to be a part of
someone's trial, it runs a serious risk that
other issues will affect the guilt or
innocence of a perpetrator rather than the
specific crime that he's charged with.
I understand this as an experiment
and an extension, to some extent, of New York
353
law. But I think it's one that we owe
ourselves the obligation and the prudent
administration of justice at some point in the
future to go back and take a look at, because
it does run a serious risk of putting
defendants in a situation where they are
defending themselves for something other than
the acts for which they are indicted. And
it's an experiment. I understand, as Senator
Waldon said, that it's in this specific area
of sexual assault it may be justified.
I'm going to vote for this bill
despite my concerns about this, but I just
would like the sponsor to consider a sunset
provision so we'll force ourselves to go back
and look at whether this has done what we
wanted it to do.
Thank you, Madam President.
THE PRESIDENT: Thank you,
Senator.
Read the last section.
THE SECRETARY: Section 46, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
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THE SECRETARY: Ayes 57.
THE PRESIDENT: The bill is
passed.
That completes the reading of the
controversial calendar.
Senator Skelos -- Senator Bonacic.
Excuse me.
SENATOR BONACIC: Madam
President, is there any housekeeping at the
desk?
THE PRESIDENT: No, there is not,
Senator.
SENATOR BONACIC: Thank you.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Madam
President, I'd like to move to discharge from
the Codes Committee Senate Bill 1147.
THE PRESIDENT: Motions and
resolutions?
SENATOR OPPENHEIMER: No, this is
a -- excuse me. This was a Senate -- this is
a motion to discharge Senate Bill 1147 from
Codes.
THE PRESIDENT: Secretary will
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read.
THE SECRETARY: Calendar -
Senate Print 1147, by Senator Oppenheimer, an
act to amend the Penal Law, the Civil Rights
Law and the Criminal Procedure Law.
SENATOR OPPENHEIMER: Thank you.
THE PRESIDENT: Senator
Oppenheimer, go ahead.
SENATOR OPPENHEIMER: Thank you.
This is the Clinic Access Bill that
has already passed in the Assembly and I
believe we discussed it a bit last week.
This bill is, simply, it's an
anti-violence bill. We hope to protect the
doctors, the healthcare workers, the women who
want to access the healthcare facilities.
We're now seeing, in recent years, some really
despicable things are happening. We are
seeing bombings and murders. And it's really
spread nationwide to healthcare facilities in
many of our different states, in Oklahoma,
Massachusetts, Florida, Alabama, and, of
course, recently, right here in New York. And
we see that the providers of reproductive
healthcare are living and working in constant
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fear of intimidation and even of death since
Dr. Slepian's murder. And they've been forced
to install metal detectors and security
systems, not only in their offices but many
have had to put it into their homes. And when
they go to work a lot of these workers are
going in bulletproof vests. This is a
outrage.
This bill is also about freedom of
access to reproductive healthcare. If you
think of a woman trying to access her, her
healthcare, and she is walking in in order to
get a variety of services. It could be a
prenatal care service. It could be cervical
cancer screening. It could be a breast cancer
screening. It could be HIV testing. It could
be for an abortion. But the fact is she is
merely, she is simply exercising her civil
right to go to her, her doctor, to her
healthcare provider. And the existing law is
simply inadequate to protect the civil rights
of these women and the people who are
providing her with her healthcare.
And the senseless violence and the
threatening atmosphere, they simply have to
357
end. And we have seen a growing public
outrage over what has been happening in recent
years. And I think this really has to move
us.
This bill will prohibit harassment
at clinics, at offices, and at homes. It will
increase from misdemeanor to felonies certain
criminal penalties, it will also establish
certain civil remedies, it specifically
protects First Amendment activity by
anti-choice protestors and it provides for
injunctive relief.
This bill, as you know, has passed
many times in the Assembly and it is time that
we pass it here in the Senate, because
protecting speech should not require that
healthcare providers go to work in bulletproof
vests.
I have a couple of -- in the last
couple of -- actually, today, we've received
some support memos. And I'd like just to read
a few lines from a couple of them.
The League of Women Voters of New
York State has sent a memorandum in support.
And this is an organization that very
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carefully thinks through its positions and is
well regarded by all for the thought that goes
into their statements. "The League of Women
Voters of New York State strongly supports
this legislation. It would empower state and
local officials to curb the escalating
harassment, intimidation and violence of women
seeking primary and preventive healthcare as
well as reproductive healthcare." As I have
mentioned earlier. "It also provides adequate
safeguards for First Amendment free speech
activities and for peaceful protests."
One of our grave concerns is that
these peaceful protests sometimes escalate
into violence and, often, people who are not
stable emotionally, can bring from these
peaceful protests, semi-peaceful protests,
semi-violent protests, can bring from it a
violence which erupts into the kind of thing
that we saw with the murder of Dr. Barnet
Slepian.
From Family Planning Advocates
today we received: "No one questions the
rights of anti-abortion activists to
peacefully protest, but with free speech comes
359
the legal responsibility to refrain from
infringing upon the Constitutional rights of
others. When free speech grows into a
campaign of terrorism and obstruction, with
the goal of closing facilities and eliminating
healthcare providers, it's time to examine the
effectiveness of the legal system in
protecting law abiding, innocent citizens." A
very forceful statement.
And the last thing I want to bring
to your attention is, yesterday, in my local
paper, Westchester County, we had a letter to
the editor, which is fairly brief and I'd like
to read it because I think it makes the case
beyond dispute. It comes from Francine Stein,
who is the President and CEO of Planned
Parenthood Hudson-Peconic, and it serves
Suffolk, Westchester, Rockland and Putnam.
"The verdict issued February 2nd by
an Oregon jury in Planned Parenthood vs. ACLA
speaks for the American people, as a country
we will not tolerate violence nor threats of
violence."
I'm not sure if many of you know
what happened a few days ago in Oregon. There
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was a verdict in the Federal Court and the
jury found in favor of Planned Parenthood and
a group of doctors with a verdict that imposed
the largest judgment, it's more than a hundred
and seven million dollars to date, on militant
abortion antagonists. That happened about
less than a week ago.
"The Nuremberg Files web site and
wanted posters" -- those are those posters
that have the picture with "wanted" and the
face and underneath it wanted -- "were death
threats, plain and simple death threats. They
clearly ventured beyond First Amendment
protections into realms of violence,
intimidation and domestic terrorism."
For those of you that are not aware
of what I'm talking about, this web site used
words such as Nuremberg Files and these wanted
posters and lists of doctors with a line drawn
through the name of a doctor after he or she
was killed. And the jury said, in this Oregon
case, that this amounted to a death, death
threats.
To continue with Ms. Stein's
letter. "We applaud the jury and turn to our
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local legislators to maintain the momentum
with legislation to protect our medical center
staff and clients.
"At Planned Parenthood, we respect
and defend everyone's rights to free
expression. However, the lines that separate
free speech from violent hateful, inflammatory
language, personal attacks and direct
intimidation cannot be clouded. The message
must carry further that, as a society, we will
not tolerate threatening behavior. We ask the
New York State Senate to see beyond the thin
vails of political and religious rhetoric.
Clinic access laws are necessary to protect
and defend both our rights to access medical
services and our rights to peaceful free
expression."
Now, this was written by the
president of Planned Parenthood for much of
the downstate area, a wonderful woman who has
spent inordinate money to put up metal
detectors and issue bulletproof vests. And
that is not her goal in life. Her goal is to
provide the best medical care she can for
women. And to utilize money in this way is,
362
in itself, a crime.
And I was very pleased to read
Frankie Stein's letter.
I urge that this be discharged from
Committee.
Thank you.
THE PRESIDENT: Thank you,
Senator.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
This is a problem we face for which
there is a solution. And I think it is an
opportunity for us, but it's also an
obligation that we take on as members of a
legislature. We know the scope of this
problem. It has been documented. We also
know the effect of clinic access laws at the
federal level and in other states.
The problem, as we discussed
last week and as Senator Oppenheimer has
stated, is that we have a network of
militant anti-abortion activists who are
seeking to accomplish by violence what
they have been unable to accomplish at
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the ballot box or in the courts. They
want to end abortion rights for all of
the women of New York State.
The scope of the problem was set
forth rather clearly, if not with the view
that it was a problem, in Operation Rescue's
January newsletter, which just came out, which
detailed that in the last 10 years there are
579 fewer clinics providing abortion services
in the United States, 500 clinics have closed
in the past six years alone, 84 percent of the
counties in America have no abortion provider,
and the number of medical schools teaching
abortion procedures has fallen 50 percent
since 1987. The campaign of harassment has
had an affect. It is a very serious problem,
but we do have a solution, at least a partial
solution, in the clinic access legislation
we're seeking to have discharged today.
Since the face bill was passed at
the federal level and 12 other states passed
clinics access laws several years ago, clinic
violence has dropped precipitously; 52 percent
of clinics reported severe violence prior to
face passing in 1997, the last year for which
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we have accurate statistics. The number was
just over 25 percent. However, in New York
State we are not getting this benefit. And
where we have a problem and we have a
solution, I think it is our obligation as a
legislature to take action.
In New York State, the campaign
continues. There has been an announcement
that on April 18th, Operation Rescue will
descend in force in Rochester and Buffalo to
close the clinics in those cities.
Over half the counties in New York
State already do not have abortion providers
and we have lost 23 providers in the last four
years. This is a problem that has a solution.
The Assembly has overwhelmingly
passed a clinic access bill. The Governor,
since we were last here on this subject last
week, has introduced and released a program
bill substantially similar in all critical
respects to the Assembly bill. And I believe
it is our obligation as the Senate to take
action on this important issue.
I would like to echo Senator
Oppenheimer in her recognition of the League
365
of Women Voters. This is not an issue that is
limited to pro-choice activists. This is an
issue for all New Yorkers who believe in
public safety and believe that doctors should
be allowed to practice medicine, women should
be allowed access to their doctors without
threats, harassment or intimidation. And I'm
very pleased and honored that we have the
Legislative Director of the League of Women
Voters in the gallery with us today, Barbara
Bartoletti.
Others are coming forward with I
think a very clear message. This is a problem
we can solve this year, we should solve this
year and that the Clinics Access Bill, which
we have introduced, which I think has
overwhelmingly support around the state should
be passed.
I want to say one word about one
provision that several of my Republican
colleagues have asked me about since I spoke
last week. And that's the necessity of having
civil remedies in the bill. As recognized by
the Governor when he put in his program bill,
civil remedies are essential for two reasons:
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One, you need to have a provision
for injunctive relief if you're going to
protect people's homes and clinics
perspectively.
Second, and this is something that
I've personally had experience with. People
of good conscience in this state disagree on
the issue of abortion rights. There are many
local law enforcement officials who do not
want to enforce laws, do not want to protect
clinics, and it is a matter of conscience and
I don't seek to judge them. But you have to
provide people who live in a police precinct
or in a county or in a state, if the attorney
general is anti-choice, the ability to go to
court on their own to seek relief.
And with those comments I look
forward to speaking further with our
Republican colleagues. This is a bill we must
pass this session. I suggest that with all of
the other heavy things on our agenda that we
get it out of the way early, and I urge
everyone to vote to discharge the bill today.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you very
367
much, Madam President.
I absolutely feel a sense of
urgency and I believe very strongly that there
is an urgent need for us to pass this
legislation immediately. And I say that
speaking as someone who many, many mornings
got up when it was way past dark, in fact, at
a time that when I was younger I probably
would have been going to bed, to go and stand
at clinics and escort women inside, past
screaming protesters and people blocking
entrances. I've stood at entrances to make
sure that the path was clear so that women
could go inside and get reproductive services.
The loss of reproductive services
around the state is a terrible, terrible thing
to have happen, and it continues to happen
every day because providing reproductive
services is now dangerous work. I believe
that healthcare is a right. And reproductive
services, including access to abortion, is
healthcare, and healthcare is a right.
Clinic access has worked well in
New York City but, unfortunately, that has
made it so that the focus has been on other
368
parts of the state. Now, today is the time
for us to make sure that all the New Yorkers
and all people who provide healthcare in New
York are provided the same level of safety
that they are provided in New York City. And
the time for that is now. The time for that
is today.
Thank you.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President, I would just rise to urge my
colleagues to give us an opportunity to really
fully address this legislation.
It is important because I think
this is a legislation that speaks to the worst
kind of bias that we have right now in our
state, and that is that there is an attack on
health services or access to health services
by women. That means, every woman in this
Chamber, as well as every other woman in the
state.
Healthcare and health service for
women involves every single aspect of our
bodies, including our sexuality and including
369
our desires to make choices about what happens
to us. So this is not just for women who are
necessarily seeking an abortion. It's also
for women, many of whom, like myself, attend
clinics that are specifically designated as a
women's clinic. It's because I feel
comfortable there, it's because that that is
how I choose to seek my own healthcare.
I do not -- I wish that my doctor
not have her life jeopardized because she is
the physician in a women's clinic. I don't
know if other women may be seeking an
abortion. I certainly am not. I'm seeking
healthcare. But I have a right and every
other woman that enters that clinic along with
me has a right to be safe and to feel
comfortable and to have access to every single
type of healthcare that we need.
And so this is extremely important.
It is important to every single woman in the
State of New York that we should be able to go
and get healthcare as every male in the State
of New York. Males are not threatened in the
same way. So this clearly is an anti-bias
bill. It is anti-bias against us because of
370
our gender, purely and simple.
So we need to do this because this
is really an important step in the direction
of securing the right of every woman, no
matter what income, no matter what station in
life, no matter what age, no matter what
color, no matter what our beliefs are. All of
us should have equal right to access
healthcare.
So, please, let's -- let's allow
this legislation to come to the floor so that
we can all vote on it, vote our consciences on
it and pass it to protect women in this state.
Thank you.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
I rise just to tell my colleagues a
brief story about, not the exercise of
Constitutional rights but the exercise of
Constitutional duties.
The day we came over here for the
State-of-the-State speech, I was walking
through the concourse and I saw a man standing
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there with a sign that, in my judgment, was
totally offensive to my Jewish colleagues.
And I looked at him and I thought, here's a
man with an expression of hate but he has a
Constitutional right to stand in the concourse
and express that hate and I have a
Constitutional duty to walk past him and come
to this Chamber and do what the people of this
state elected me to do.
And now, as I sit here and we
debate that motion to discharge, I can't help
but think what would happen if in order to get
into this Chamber, the 61 people who come here
to do the duty that the voters sent us here to
do, had to walk through a group of people who
stood there and told you that you were going
to hell if you went into that Chamber, told
you that you would be a victim of violence,
told us that we know we're watching you, we
now that something may happen to you?
Wouldn't it be a terrible thing if your tires
were slashed while you were over in the
Chamber? Wouldn't it be a terrible thing if
you got a letter at your house, hate mail,
that said, "We know who you are. We know what
372
you're doing when you cast those votes in the
Senate Chamber"? And what if they stood in a
line and watched us go back and forth and
whispered to us, "Oh, by the way, you better
watch your backside" or "you easily could be
shot at by a sniper," which is what happened
when Senator Oppenheimer noted unfortunately
and tragically in Buffalo.
Would it change our minds about
what we do here today, if we had to walk that
gauntlet of hate and intimidation to get into
this building?
Is there any doubt in any of the 61
minds that are going to vote on this bill
that, if we had to endure that to vote in this
Chamber, that there would be a bill that would
be out of the Codes Committee like that
(snapping of fingers) that would guarantee,
guarantee that we could walk safely from the
LOB over here, that would make it a crime to
harass and annoy and try to interfere with our
Constitutional duty to exercise our voting
power?
And is there any doubt in your
minds that there would be instantaneously out
373
of the Codes Committee and on the floor of
this Chamber a bill that would give the
executive power, the attorney general or an
individual senator the right to go into court
and proceed through civil law and obtain the
protection of injunctive relief to prevent
someone from harassing or annoying or
threatening us in the exercise of our
Constitutional duty?
No doubt in my mind that that bill
would be passed unanimously. It would join
the list of the other eight bills that we've
done today that have all passed without a
single opposing vote.
Why, my colleagues, if we would
protect our Constitutional right that way in
this Chamber, we, who are people of influence
and power, why won't we give women who live in
Rochester, women who live in Buffalo, who live
in Syracuse, who live in Oneonta, women who
may be desperate, women who may be seeking
healthcare that they can't find anyplace else,
why would we leave them all by themselves to
walk through that gauntlet without the
protection of the criminal law and the civil
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law respecting their Constitutional right?
Why would we have one standard for
ourselves and another for poor, largely
defenseless, largely all alone women seeking
healthcare?
Explain to me how we, in this
Chamber, would be so quick to protect
ourselves and seemingly are so slow to protect
them?
There's a way to give those women
that protection, and the way is to take this
bill offered by Senator Oppenheimer, vote to
discharge it from the Codes Committee, a
unanimous vote to discharge it and a unanimous
vote to give this protection that we would
always give ourselves, that protection from
annoyance, that protection from threat, that
protection from physical harm, what we would
clearly do for ourselves.
Let's send a message to everyone in
this state that we still believe that women
who need healthcare have that same entitlement
to protection. We shouldn't live in a world
with a double standard. Let's create one
standard in this state, if your Constitutional
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rights are threatened in your attempts to
access healthcare, let's make it a crime and
let's give the message that we, in New York,
respect that choice. It's that simple.
Vote to discharge this bill, put it
on the floor, bring it up for debate. Let's
make it law and send that message that we
respect everyone's exercise of their
Constitutional rights.
Thank you, Madam President.
THE PRESIDENT: Thank you,
Senator.
All in favor of accepting the
motion to discharge, signify by saying aye.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: I'd just like
to thank Senator Oppenheimer for leading off
the debate and really setting forth the
necessity to pass legislation at this point to
provide for effective clinic access in this
state, and Senator Schneiderman, who told us
last week that one of his first employment
situations in life was to work as a health
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services worker in a reproductive services
clinic, and thank him for his tireless work on
the subject for a number of years and through
the past few months and to welcome that type
of effort as a member of this Chamber.
Senator Duane told us about the
effectiveness of clinic access in New York
City and Senator Montgomery distinguished the
issue of choice from the need for use of
reproductive services clinics. And I think
that we all were quite moved by the stirring
remarks that Senator Dollinger made in giving
us really the overview and in many senses the
passion for why all of us should support this
legislation.
We have two conferences here. We
differ on many issues and, in many respects,
much policy. But within our conferences, we
have members who are referring to themselves
as pro-choice and those who are not, we have
members in both sides of the aisle who would
consider themselves to be pro-life and those
who are not. We have all a regard for First
Amendment privileges and we certainly all
would want the law enforced with respect to
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those who would violate the rights of others
and particularly to manifest it in violence.
And so this is why at this particular time we
in the Minority conference have brought the
motion for discharge here today, this is why
we brought what would be an addendum to the
very positive legislation that Senator Balboni
introduced last week. And speaking on behalf
of leadership, I would just like to point out
that we are going to continue to foster the
wishes of those who want to come to Albany to
lobby to persuade all of you who may vote
against this motion today, that we have to
pass some kind of access legislation that will
make our clinics safe and give those who
certainly go to them free choice. What we aim
to do is to continue this fight until there is
such a time that we have passed this
legislation. And we will be back and we will
continue to come back until we see that it's
passed.
We're happy to see that the
Governor and many others have offered pieces
of legislation and have lent their voices to
what would be the effort to try to provide
378
free access to clinics. But we will not be
satisfied and there's no way that we can be
satisfied until the legislation is actually
passed.
It is difficult for all of us to
reconcile what might be our ideological
beliefs with the certainty of the crisis that
often drives women to these clinics. Many of
them go there actually identifying themselves
as pro-life, but because of the situation they
realize they might not be able to live up to
what they thought they believed in the past.
Many of those may have been pro-choice, but
because of the reproductive services that are
provided, they may not choose to go in that
direction. Many of these women come to these
clinics alone. Many of the women are sent by
men who are actually saying that they're
against choice, but when the situation came,
struck into the reality of their lives, they
urges their partner to do something different.
In many ways, the awareness of time
is cylindrical. And this is why in a free
society and in a democracy we have to give
individuals the right to exercise their free
379
choice and we cannot allow that choice to be
impeded in any way by those who are
deliberately, because they haven't been
effective in the courts and because they
haven't been effective in the legislature,
manifesting their anger in a way as to
intimidate, deny or often physically force
those into a position that they don't believe.
And so we will be supporting this
motion as a party with a party vote, with no
exceptions, in favor of the motion.
I certainly urge my colleagues on
the other side of the aisle to support it. It
is not a vote for ideology. It is a vote that
is designed to stop the violence and to
provide for free choice in the use of
healthcare services.
THE PRESIDENT: All in favor of
accepting the motion to discharge, signify by
saying aye.
(Response of "Aye.")
SENATOR PATERSON: Party vote in
the affirmative.
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Party vote in
380
the negative.
THE PRESIDENT: The Secretary
will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 23. Nays
35. Party vote.
THE PRESIDENT: The motion is
defeated.
Senator Bonacic.
SENATOR BONACIC: Madam
President, there being no further business, I
move we adjourn until Tuesday, February 9th,
at 11 a.m.
THE PRESIDENT: On motion, the
Senate now stands adjourned until Tuesday,
February 9th, at 11 a.m.
(Whereupon, at 4:20 p.m., the
Senate adjourned.)