Regular Session - February 9, 1999
381
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 9, 1999
11:06 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 will
come to order. I ask everyone present to
please rise and repeat the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: With us this
morning is Reverend William Bazemore, Pastor,
Emanuel Church of God in Christ in Brooklyn,
who will give the invocation this morning.
REVEREND BAZEMORE: Father, in
the name of Jesus, I come before You today as
only as I know how, asking You to touch every
heart in here today. Let them realize who You
are. We all know that there's somebody
sitting high and looking down low. We know
there's nothing too hard for You to do. But,
Father, I'm asking you, in the name of Jesus,
look on our little one, never see the time in
their life when the little children are
killing us here. We know some time they kill
us here, but it's, it's a hope from somewhere.
If we just thank Lord there's a hope somewhere
for them.
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Please, take prayer back in the
school. For this one thing, I'm asking now.
We, the one thing we ought to demand, we ought
to demand that our children, and the children,
they don't know nothing about love. We ought
to demand prayer. You got to feed them. Make
them have prayer once a day. Let them pray
for one another. Father, You're able to teach
them how to pray, You're able to make way for
minority.
I'm asking you to bless everyone
today more abundant. Let them realize that
You're real, nothing too hard for You to do.
I'm asking You, Lord, take the day like You
never take before, that they will come
together. Forget about what party they are
and let them become one, just as You and Your
Father are one.
This we ask in the name of Jesus, I
pray. Amen.
THE PRESIDENT: Thank you
Reverend.
Reading of the Journal.
THE SECRETARY: In Senate,
Monday, February 8th. The Senate met pursuant
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to adjournment. The Journal of Friday,
February 5th, was read and approved. On
motion, Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands proved as read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Larkin,
from the Committee on Racing, Gaming and
Wagering, reports:
Senate Prints 1490, by Senator
Larkin, an act to amend the General Municipal
Law;
2105, by Senator Larkin, an act to
amend the Racing, Paramutual Wagering and
Breeding Law.
Senator Fuschillo, from the
Committee on Consumer Protection, reports:
Senate Prints 11, by Senator
Skelos, an act to amend the General Business
Law;
96, by Senator Alesi, an act to
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amend the General Business Law;
1556, by Senator Lack, an act to
amend the General Business Law.
Senator Hannon, from the Committee
on Health, reports:
Senate Prints 1524, by Senator
Hannon, an act on amend the Public Health Law;
1527, by Senator Lack, an act to
amend the Public Health Law;
1541, by Senator Farley, an act to
amend the Public Health Law.
Senator Trunzo, from the Committee
on Transportation, reports:
Senate Prints 84, by Senator Alesi,
an act to amend the Vehicle and Traffic Law;
87, by Senator Alesi, an act to
amend the Vehicle and Traffic Law;
547, by Senator DeFrancisco, an act
to amend the Vehicle and Traffic Law;
821, by Senator Marcellino, an act
to amend the Vehicle and Traffic Law;
1084, by Senator Holland, an act to
amend the Vehicle and Traffic Law;
1448, by Senator Lack, an act to
amend the Public Authorities Law.
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Senator LaValle, from the Committee
on Higher Education, reports:
Senate Prints 1293, by Senator
Rath, an act to amend the Education Law;
1578, by Senator Larkin, an act to
amend the Education Law;
1971, by Senator LaValle, an act to
amend the Education 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.
SENATOR SKELOS: Madam President,
at this time, may we please adopt the
Resolution Calendar in its entirety?
THE PRESIDENT: All those in
favor of adopting the Resolution Calendar,
signify by saying aye.
(Response of "Aye.")
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THE PRESIDENT: Opposed.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Marchi.
SENATOR SKELOS: Madam President,
if I could -
THE PRESIDENT: Excuse me,
Senator.
SENATOR SKELOS: I know that two
of the Senators want to comment on a
resolution -
THE PRESIDENT: Yes.
SENATOR SKELOS: -- but there'll
be an immediate meeting of the Rules Committee
in the Majority Conference Room.
And now would you please recognize
Senator Marchi.
THE PRESIDENT: All right. There
will be an immediate meeting of the Rules
Committee.
And, at this point, I recognize
Senator Marchi.
SENATOR MARCHI: Thank you, Madam
President.
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I'm referring to Resolution Number
314, rendering our respect and homage to
Bishop Ahern, Patrick V. Ahern, an individual
who, had he elected to go to Hollywood, would
have ousted Nelson Eddy in some of the
classic -- with his rich tenor voice and
majestic presence. But he dedicated himself
to the spiritual life.
I can't help but note the
invocation that was given to us, where you
mentioned the subject of love, the importance
of compassion and charity. And this has
characterized this individual who is being
honored by the Seton Foundation for Learning
Parent Guild.
A graduate of St. Agnes School of
Boys, St. Joseph's Seminary, Dunwoody
(phonetically), the Gregorian University in
Rome, honorary degrees from Manhattan, St.
John's, St. Thomas Aquinas, Fordham and a host
of other colleges and universities around the
country, and a very distinguished career in
his -- as a bishop.
He was vicar of several areas,
including the area of Staten Island. So I
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would expect Senator Gentile to join in on
this, who I'm sure goes along with this.
He was -- received the first Elian
Award (phonetically) from Cardinal Cooke and
he is an Honorary member of the Carmelites and
his book "Maurice and Therese.", the story of
love again echoes the invocation that you've
made, Reverend.
So this vision and spirit of
enlightenment, which he exemplifies, continues
to exemplify with great vigor, with great
charm, with the saving sense of humor, makes
him and endears him to everyone who knows him
for the fine person that he is and the fine
influence that he has exercised.
He was secretary to Cardinal
Spellman. He held a number of -- vicar also
in the Bronx and other areas where his
beneficial participation enriched the lives of
the people that he reached and he continues to
reach in his ministry.
So I'm very happy to speak to this
and to again emphasize the respect and the
love and affection that we all have for Bishop
Patrick Ahern.
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THE PRESIDENT: Senator Lackman.
SENATOR LACKMAN: Yes, Madam
President, with your indulgence, I ask
permission to speak on Resolution Number 322,
which mourns the passing of the late
president, Leon Goldstein of Kingsboro
Community College.
THE PRESIDENT: Senator, on the
resolution.
SENATOR LACKMAN: Thank you
kindly, Madam President.
The Senators from Brooklyn all have
heard of Leon Goldstein and his outstanding
administration of Kingsboro Community College.
But Leon Goldstein's name and higher education
goes beyond what he did for Kingsboro.
The French philosopher Henri
Burkson once said that "A man should think as
a man of action and act as a man of thought."
Leon Goldstein throughout his professional
life of almost 40 years in higher education
not only thought as a man of action and acted
as a man of thought but did both with a great
deal of feeling and consideration for others.
Just thinking of what he did at Kingsboro
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Community College, which many people feel is
probably one of the outstanding community
colleges in CUNY and SUNY and the State of New
York, he had a deep and abiding commitment in
both access for everyone as well as standards
for everyone. And he built a college to
service the community, the people, the
students of the community. He had a College
Now Program that brought disadvantaged
youngsters into the college. He had a senior
citizen program that brought seniors into the
college. He was the first president of the
nation to start a family college, where
parents could bring their children to
satellite public schools and attend courses at
Kingsboro Community College. And he developed
in his last few years a very innovative
Kingsboro Community College High School for
the Sciences. He did remarkable things for
Kingsboro.
The college was started by
President Jacob Hartstein. He built on a good
foundation and made it even stronger to become
one of the preeminent two-year colleges in the
city, state and nation.
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But Leon Goldstein's influence went
beyond the Borough of Brooklyn. Leon
Goldstein also served as a Dean of New York
City Community College before it became New
York Tech. Leon Goldstein served as the
acting chancellor and interim chancellor of
the City University of New York almost a
generation ago. And Leon Goldstein, and this
is very unusual for the president of a
two-year college, served as vice president of
Middle States Association as well as chair of
its committee on higher education.
Leon Goldstein was soft spoken, he
was thoughtful, he was considerate, he was a
conciliator. And it's interesting to note
that, of all the presidents in CUNY, in the
last years of his life, when members of the
board of trustees -- and this was -- this is a
very fractious board, with different
opinions -- and when his colleagues wanted to
have an opinion of substance, they approached
a man of stature. And that was Leon
Goldstein. And whether you agreed with him or
disagreed with him, you always respected him
and you knew that he had the best interests of
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the City University of New York, of Kingsboro
Community College, of higher education and of
the young adults who attend the colleges in
the City and the State of New York.
Our hearts go out to his widow,
Dean Mary Rothline Goldstein of John Jay
College, his children Michael and Lisa, at the
sudden passing of their husband and their
father. They, as we, know that there were no
ordinary days in President Goldstein's life
because all of his days were extraordinary
days, servicing others, working with others,
trying to improve our society, if through the
area of education and the instrument of higher
education.
Oliver Wendell Holmes, Jr. said
that "no one has the right to say that he
lived unless his life, unless his life was a
life involved in passion and action." Until
his dying day, Leon Goldstein's life was
involved in the passions and actions of his
time, of a very turbulent time, of a very
difficult time for higher education, at an
especially difficult time for the City
University of New York. And his actions and
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his passions were totally devoted to
improvement of that which he loved most, and
that is education for all the children in the
City and the State of New York.
And I open up this resolution to
every member of the Senate to join and
participate, and the resolution will be handed
to Mrs. Goldstein at an appropriate memorial
service at Kingsboro Community College of the
City University of New York.
Thank you, Madam President.
THE PRESIDENT: Senator Skelos.
Excuse me, Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
At this time, there will be an
immediate meeting of the Aging Committee in
the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Aging Committee in
the Majority conference Room.
SENATOR MEIER: Madam President.
THE PRESIDENT: Yes.
SENATOR MEIER: Madam President,
I believe there's a privileged resolution at
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the desk by Senator Paterson, and I would ask
that the title only be read.
THE PRESIDENT: The Secretary
will read the title only.
THE SECRETARY: By Senator
Paterson, Legislative Resolution commemorating
the celebration of Black History Month.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President and I thank the Acting
Majority Leader, Senator Meier, and also to
Senator DeFrancisco, who had a similar
resolution last week which commemorates the
event of African-American History.
Black History Month's origin comes
from the fact that it was once known as Negro
History Week because it appraised the actual
birth and death of the great leader Frederick
Douglas who was born in the month of -- on
February 11th and died on February 16th at the
age of 72 years of -- 72 years old.
In honor of this year's
African-American History Month celebration, we
would like to recognize the event and the
location, which has probably added more
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research and more information to the study of
not only African-American History but of
American history, and that was the finding of
the African burial grounds in Lower Manhattan,
near Wall Street at approximately the
confluence of Broadway and Duane and Reade and
Elk Street.
It's very interesting as to how the
African burial grounds was found. There was a
survey taken on an area that was a proposed
site for the construction of a federal office
building in which the -- in which the Congress
put aside $275 million and were going to build
a 35-story building. To accomplish this,
there was an excavation which went over 35
feet into the soil in Lower Manhattan. The
survey had shown that there had been a burial
grounds in the 18th Century mostly populated
by Africans. But it was thought that, since
there had been a parking garage there and Dunn
and Bradstreets had had an office building
there and the site, the land site had been
used for many other purposes, that there would
probably be nothing left of this burial
grounds. What those who were taking the
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survey did not know is that in Lower
Manhattan, in the early 1800s, there was,
there were contours of a hilly region in which
a great amount of soil was brought in to
actually cover the area and to make the area
flat. So actual -- so there was a 15-foot
cushion created by the new landfill that
actually protected the remains of those
Africans who were buried in Lower Manhattan
from approximately 1710 to 1795. This soil
acted in a serendipitous way, such that, when
people were able to unearth the remains of
approximately 415 individuals who were buried
there, their remains were kept just about as
well as if they had actually been buried in
caskets.
And so, at Howard University and
also at Lehman College, extensive study has
been done on the 415 remains that were found
which revealed some very interesting issues
that were not known before. For instance, of
the remains, it was found that 72 percent of
them were the remains of children, recasting
and reidentifying the way in which Africans
were brought to the United States. They were
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putting -- they were transporting mostly
children because they could get more of them
into the boats, which were only approximately
three feet six inches high.
Another interesting fact that came
from the research of the remains of the
African burial grounds were the indigenous
areas on the West African Coast to which the
remains belonged. No one had really been able
to trace which of the African countries
produced those who were brought here in chains
as slaves, but it's now clear that a
comparison of the burial patterns in the
burial ground with the burial patterns in
native Africa, reveal that Angola, Mozambique,
Ghana, Nigeria and parts of Upper Volta were
the actual indigenous areas were the actual
homes of these individuals.
And so, as we look to the coming
years and the information that is still coming
out of the African burial grounds, there are
two other pieces of information I'd like to
share with you and all who are here, Madam
President. One is the fact that there were
five Africans in the burial grounds who were
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born -- who were identified as wearing the
uniforms of the British Navy, demonstrating
that there was a dispute in the African
community in New York City as to whether to
support the American settlers who were
rebelling against the British or to support
the British who wanted to return to the
indentured servitude that the Dutch had
established when they first colonized New York
in 1624.
In 1647, there was a major fire in
New York and, because of that fire, the
Africans who lived in the area were awarded
their freedom after helping to put out the
famous fire of 1647 that emanated from the St.
Nicholas Church.
In 1697, Queen Ann decided that
there would be no more burials of Africans
with whites in Lower Manhattan, and so they
took the northern-most point of Manhattan,
which was at about where City Hall is now, and
used that for the burial grounds.
Of the remains that were found,
there was the remains of one white person in
the African burial grounds. Now, I know that
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my assistant, Mark Leinung, is sitting here
wondering who was the white person that was
found in the African burial grounds. No,
Mark, it was not an old boyfriend of Shirley
McClain. It was actually an individual who
participated in the 1741 New York City riots
to try to free the slaves. And as a
punishment, this white person was buried in
the African burial grounds along with the
black people who were buried there.
Actually, what it demonstrates is
that people in this country of all colors
fought to free and release the slaves and we
celebrate all of them when we celebrate Black
History Month.
THE PRESIDENT: On the privileged
resolution, all those in favor of adopting the
privileged resolution, please signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The privileged
resolution is adopted.
Senator Meier.
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SENATOR MEIER: Madam President,
at this time, may we have the
non-controversial reading of the calendar?
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
24, by Senator DeFrancisco, Senate Print 548,
an act to amend the Criminal Procedure Law in
relation to applications.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
25, by Senator Volker, Senate Print 728, an
act to amend the Criminal Procedure Law in
relation to fingerprinting.
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.
(The Secretary called the roll.)
THE SECRETARY: Ayes 54.
THE PRESIDENT: The bill is
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passed.
THE SECRETARY: Calendar Number
29, by Senator Volker, Senate Print 809, an
act to amend the Penal Law.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
65, by Senator Larkin, Senate Print 169, an
act to the amend the Navigation Law in
relation to liability of volunteer
firefighters.
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 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
403
68, by Senator Marcellino, Senate Print 1128,
an act to amend the Environmental Conservation
Law in relation to allowing.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
January.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
72, by Senator Nozzolio, Senate Print 137, an
act to amend the Penal Law in relation to
sexual performance by a child.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
83, by Senator Johnson, Senate Print 758, an
act to amend the Real Property Tax Law in
relation to making persons receiving a
disability.
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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 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
89, by Senator Alesi, Senate Print 89, an act
to amend the Highway Law in relation to
designating.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
94, by Senator Goodman, Senate Print 1102, an
act to amend the Transportation Law in
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relation to mandating.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 54.
THE PRESIDENT: The bill is
passed.
Senator Meier, that completes the
non-controversial reading of the calendar.
SENATOR MEIER: Thank you, Madam
President. May we now have the controversial
calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
24, by Senator DeFrancisco, Senate Print 548,
an act to amend the Criminal Procedure Law in
relation to applications.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator
DeFrancisco, an explanation has been
requested.
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SENATOR DeFRANCISCO: Presently,
under the Criminal Procedure Law, Section
510.30, a judge, in determining whether or not
to set bail and what that bail would be, has
to consider the character, reputation, habits
and mental condition of the individual
appearing before the Court.
The problem with it is is that the
judge is not permitted to obtain additional
information relevant to those factors nor
obtain information concerning the medical
condition from the defendant who's in court.
As a result, the judge is really handcuffed in
determining what that bail is going to be. So
the result in many, many cases is the judge is
going to take the safe route and basically set
a higher bail than maybe he otherwise might
have set.
In order to give a judge the tools
in which to set a reasonable bail, this bill
provides for the judge to be able to get
information from the defendant, also order a
mental examination. And the information that
he obtains is usable only for the bail hearing
and could not be used for the -- any other
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part of the criminal proceeding against the
defendant.
THE PRESIDENT: Senator Sampson.
SENATOR SAMPSON: Thank you,
Madam President.
Through you, Madam President, would
the Senator yield for a question or two?
THE PRESIDENT: Senator, do you
yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Sampson.
SENATOR SAMPSON: Senator, I just
want to know, who is going to be paying for
these examinations that are going to be
ordered by the Court?
SENATOR DeFRANCISCO: Well, the
same people that would be paying for any of
the court proceedings in a criminal case.
Generally, the county or the state, depending
upon what the proceeding would be. My guess
would be the county. But, in actuality, the
beneficiary, I think, of this legislation is
going to be the defendant, who is less likely
to get a reasonable bail if the judge doesn't
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have all of the factors that he needs to make
a determination.
So in any case that we deal with in
the criminal justice system, the system itself
or the taxpayers ultimately pay.
SENATOR SAMPSON: Through you,
Madam President, would the sponsor continue to
yield for a few questions?
THE PRESIDENT: Do you continue
to yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Sampson.
SENATOR SAMPSON: And how long do
you expect the, this timeframe as to when the
Court, once the Court orders that examination
is done, are we talking -
SENATOR DeFRANCISCO: I'm sorry.
I can't hear you.
SENATOR SAMPSON: -- the
timeframe in which the Court has to determine
that one of these examinations is going to be
done.
SENATOR DeFRANCISCO: Well,
there's no specific statement in the
409
legislation that would set a specific time
limit. It would be up to the discretion of
the Court.
But, generally, the additional
information that the Court would request would
generally come from the defendant as he stands
before the judge. With respect to a mental
examination, there are provisions for mental
examinations now in other circumstances, and I
imagine the judge would want to get that
information as quickly as possible.
Once again, I keep getting back to
the alternative. The alternative is that the
judge has some kind of conception that this
individual has some mental problem in view of
the nature of the case or in view of what the
person is alleged to have done, the tendency
is going to be set a high bail and play it
safe. I think by having the opportunity for a
mental examination, you would give the judge
the opportunity to say, "Well, there is not a
problem here. I thought there might have be,
the nature of the case, so I'm going to set a
bail much lower than I otherwise would have."
SENATOR SAMPSON: Through you,
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Madam President, would the sponsor continue to
yield?
THE PRESIDENT: Senator, would
you speak up, please?
SENATOR SAMPSON: Through you,
Madam President, would the sponsor continue to
yield for questions?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Sampson.
SENATOR SAMPSON: Senator, I just
want to -- is this going to be crime specific
or when -- it all depends upon the crime or
what does it depend upon the judge to ask that
you submit to one of these medical
examinations?
SENATOR DeFRANCISCO: No, it's
not crime specific nor is the underlying bail
statute crime specific. It gives the judge
the authority to set bail, depending upon the
character, depending upon the mental
condition, depending upon all the factors that
are currently under the statute. And that
applies across the board.
SENATOR SAMPSON: And this
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wouldn't allow the D.A. to ask for any medical
examinations?
SENATOR DeFRANCISCO: No, this is
basically something that the judge could ask.
And if he does request it, he or she, the
judge requests this information, under those
circumstances, the Court has to issue an order
setting forth the reasons why the Court wants
to go into these additional pieces of
information, including a mental exam. So
there has to be a reason given, not simply the
whim of the Court on any particular day.
SENATOR SAMPSON: Thank you.
SENATOR DeFRANCISCO: Which
reasons and which court order would be subject
to review by a higher court.
SENATOR SAMPSON: Thank you.
THE PRESIDENT: Read the last
section.
Excuse me. Senator Duane, why do
you rise?
SENATOR DUANE: Thank you, Madam
President, would the sponsor yield to another
question?
THE PRESIDENT: Senator, do you
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yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Are the people
impacted by this, the defendants, will they be
detained while the information is being
gathered?
SENATOR DeFRANCISCO: It depends
on the judge. Obviously, if the Court has
concern over the mental stability of someone
and the risk to the individual to himself and
to the community, I imagine under certain
circumstances they would, they would
incarcerate the individual until bail is set.
But you always got to look at the
alternative. The alternative, a Court can
flippantly make a determination we're going to
set the bail at $50,000, where the individual
will never have a chance to raise anyway. So
there may be a period of incarceration in
those situations. But, on the other hand, if
the judge doesn't have these tools, the high
bail would probably remain anyway.
SENATOR DUANE: Thank you.
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Madam President, just if the
sponsor would yield to one more question?
THE PRESIDENT: Senator. Do you
yield -
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: -- to one
additional question?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, one
additional question, Senator Duane.
SENATOR DUANE: Senator Sampson
very appropriately asked the question of how
much time this could take, and that is also
my, my concern for those people who are
detained while the information is being
obtained.
It's my understanding that there is
nothing in the statute, and I saw nothing
which gives a time limit on that. Is that
then totally up to the judge's discretion?
SENATOR DeFRANCISCO: That's
correct.
SENATOR DUANE: Thank you.
Thank you.
THE PRESIDENT: Read the last
414
section.
THE SECRETARY: Section 3, this
act shall take effect on the 30th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 55.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
29, by Senator Volker, Senate Print 809, an
act to amend the Penal Law in relation to
aggravated harassment.
SENATOR VOLKER: Madam President,
this bill -
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: -- this bill,
Senate Print 809, is a bill that has passed
the Senate for the last several years. In '96
or '97, I believe, we passed legislation,
Senator Nozzolio and I think Senator Hoffmann
and myself, I believe, passed legislation
which related to creating an additional crime
of aggravated harassment of an employee of an
inmate facility, a parole facility or a mental
health facility by throwing various bodily
415
fluids. And we have, in the last couple of
years, a probation department pointed out
that, of course, in various parts of the
state, particularly New York City, that they
frequent the correctional facilities also and
that the same sort of situation has occurred
to them.
So what this bill really does is
amend the statute that's already been passed,
which would increase the penalty to a class E
felony. And, in fact, in certain cases
because there's been some confusion, there was
some confusion as to whether you could even
charge a class A misdemeanor, which is what it
would traditionally be thought to be -- there
have been a number of prosecutions, by the
way, on this issue. And there is a series of
potential problems that could occur by this.
In fact, I was one of the targets
of one inmate some years ago, and so I'm well
aware of how this can happen.
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR DUANE: Thank you. Would
the sponsor of the leg -- Madam President,
416
would the sponsor of the legislation yield to
a question?
SENATOR VOLKER: Yes, I will.
THE PRESIDENT: Senator Volker,
you do yield?
SENATOR VOLKER: Yes, I will.
THE PRESIDENT: Senator Duane you
may proceed with a question.
SENATOR DUANE: Are there
statistics on the, on the level of this being
a problem, Senator?
SENATOR VOLKER: Well, it's
not -- I think some years ago we had -- there
was a number of incidents and there has been a
growing number of incidents. And, as I think
you're well aware of the correctional
facilities, both on the state and local level
have been -- have had a lot of people in them
and, of course, we have set up these -- many
of these problems have come in areas that are
in secure parts of the prison system, where
you have disruptive inmates who, for one
reason or another, are breaking rules and have
been creating problems. But it has been,
certainly it has been an increasing type of
417
thing over the last few years. I don't have
the, certainly, the exact statistics, but
there is no question it's been increasing.
SENATOR DUANE: Madam President,
if my -
SENATOR VOLKER: I yield.
THE PRESIDENT: Do you yield?
Go ahead, Senator Duane.
SENATOR DUANE: I would, in fact,
like to see the statistics on this. But I
would ask the Senator if maybe a mental health
component might not be more helpful for
someone who is the perpetrator of this kind of
activity as opposed to incarceration. I think
that the throwing of bodily fluids, etcetera,
actually indicates not so much a criminal
mentality but more of a mental health problem.
And I think that that might be the more
appropriate way to look at this particular
issue.
SENATOR VOLKER: The problem with
that is, might I just say, these are not -
these are all people that are in jail.
Understand, these are incarcerated people.
And many of them are under some observation,
418
they may be under some observation for mental
health. But the problem is that, because of
the nature of the situation, mental health,
there's no penalty in mental health and they
are there already under that kind of
observation. The problem is that what you're
trying to do here is to discourage this kind
of conduct. And, as has been said, obviously,
it's been a violation of rules forever. But
the violation of rules has not done anything
to improve this kind of situation. And the
feeling is, and I think that given the
dangerousness of the situation and the problem
that's involved here, the feeling is that
making this a felony, which would only
probably be used in the most outrageous cases,
because, if you know anything about prisons,
the prosecutions are not made except on rare
occasions, for obvious reasons. They're
already there. But on some occasions, you
have repetitive people that are repetitively
doing this, and there's an attempt to stop
this by giving enough of a penalty to make
sure that they think twice before they do it.
SENATOR DUANE: And a final
419
question, Madam President.
THE PRESIDENT: Senator Volker,
do you continue to yield -
SENATOR VOLKER: Sure.
THE PRESIDENT: -- for a final
question?
Senator Duane, for a final
question.
SENATOR DUANE: The -- a class E
felony is a pretty big deal. I did hear the
Senator say there was some lack of clarity
regarding whether or not this was even a
misdemeanor. But it just seems that a class E
felony seems a little bit extreme for this
kind of, you know, terrible circumstance. And
I'm just finally wondering why it's been
elevated to such a high level.
SENATOR VOLKER: Well, let me
just say to you, it's the lowest level felony.
Most of these people that you're
talking about here are in state prison.
Misdemeanants generally don't go to state
prison. They go to the local prisons. The
problem is, if you make it a misdemeanor, that
they're already in state prison, it's pretty
420
difficult to sentence them to anything because
misdemeanants traditionally go to local
prisons. So a D.A., frankly, in a, that has a
correction facility, and that means both in
New York City as well as in Upstate New York,
frankly, doesn't pay much attention to any
misdemeanors anyways, because they're not -
since somebody is probably already in for a
period of time, the D.A.s generally feel that
they don't even want to prosecute a
misdemeanor for someone in a prison system.
So, frankly, that's another problem, and
that's particularly true in New York City
where misdemeanors traditionally now are -
with the volume of, of crimes, if you don't
have at least a bare misdemeanor -- a bare
felony, usually, won't even get prosecuted.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Would the
gentleman yield?
THE PRESIDENT: Senator Volker,
will you yield?
SENATOR VOLKER: Certainly.
421
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator Volker,
we've discussed this and other issues similar
to it ad nauseam in committee. And it seemed
to me, if I recall correctly the gist of those
discussions, that the major concern here is
the health of the particular person against
whom this activity occurs; meaning someone
throws feces on the correction officer, it's
just as dangerous to throw feces on the
probation officer or other officer.
SENATOR VOLKER: That's right.
SENATOR WALDON: And, if I
remember correctly, the concern in the
committee was that we wanted to make sure that
the health hazard that could result from
throwing of these bodily fluids was precluded,
intervened or somehow we dealt with it as best
as we could under the law.
Is that not correct?
SENATOR VOLKER: That's
absolutely correct, Senator. You're
absolutely correct.
SENATOR WALDON: One more
422
question, Madam President.
THE PRESIDENT: Senator Volker,
do you continue to yield?
SENATOR VOLKER: Absolutely.
Yes.
THE PRESIDENT: Senator Waldon,
go ahead.
SENATOR WALDON: And is that the
self same driving force in this proposal?
SENATOR VOLKER: Absolutely.
It's the self same driving force.
And, as you know, there are a
series of potential problems that can occur
when this sort of thing happens. And it
relates to a whole series of potential
diseases and things of that nature that could
create serious problems.
SENATOR WALDON: Thank you,
Senator.
Thank you, Madam President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
November.
423
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 55. Nays 1.
Senator Duane recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
72, by Senator Nozzolio, Senate Print 137, an
act to amend the Penal Law in relation to a
sexual performance by a child.
SENATOR WALDON: Explanation.
THE PRESIDENT: Senator Nozzolio,
an explanation has been requested.
SENATOR NOZZOLIO: Madam
President, who requested the explanation?
THE PRESIDENT: Senator Waldon
requested the explanation, Senator Nozzolio.
SENATOR NOZZOLIO: Thank you.
Madam President, Senate colleagues, that this
measure before us increases protections of
those children under the ages of 18 for the
consideration of those who perpetrate criminal
activity upon them.
In the definitions used under our
424
Penal Law, the use of a child in a sexual
performance, promoting an obscene sexual,
possessing obscene sexual performance
materials, promoting a sexual performance, in
its sense giving a protections that heretofore
were allowed for those individuals 16 years
old or under. Now, those same protections
will be afforded to children under the age of
18 and under.
SENATOR WALDON: Madam President,
would the gentleman yield to a question?
THE PRESIDENT: Senator, do you
yield to another -- to a question?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator, under
our current Penal Law, is not the age of
consent for females 17 for sexual activity?
SENATOR NOZZOLIO: Madam
President, what we're trying to do here is to
bring a consistency to the inconsistent
statutes that exist between the age of
consent, the age of majority, the age of
425
protection, the age of non-protection. That I
believe that the statutory requests that
Senator Waldon is asking is under the age of
17 for the, that particular crime.
SENATOR WALDON: Madam President,
would the gentleman continue to yield?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator, would
you please tell me and our colleagues what is
the age of consent under the Penal Law for
young males to engage in sexual activity?
SENATOR NOZZOLIO: Madam
President, I cannot answer that question
because I do not know the answer.
SENATOR WALDON: Madam President,
may I ask another question of the gentleman?
THE PRESIDENT: Of the gentleman,
yes.
Senator Nozzolio, do you yield?
SENATOR NOZZOLIO: Yes, Madam
426
President.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator, in your
preparation to discuss this, did it come to
your mind's eye that perhaps there is a
conflict in what you're proposing and the law
we already have on the book and, therefore,
we should not propose this because of the
inherent conflict?
SENATOR NOZZOLIO: Madam
President, regardless of what other penal
statutes say or don't say, regardless of
protections that are afforded or not afforded,
I believe that when you are talking about the
promotion of the sexual performance of a child
under the ages of 16 that, to me, providing
additional protections for children under the
age of 18, made all the sense in the world.
That regardless of whether or not ages are
different in other parts of the code, that's
something that this Senate should look at,
that my concerns are certainly concerns that
are those who profit or exploit children
should not be allowed to do so. That someone
427
between the ages of 16 and 18 is extremely
vulnerable, that we should not allow their
vulnerability to be exploited any further, and
that's the point of this statute.
SENATOR WALDON: Madam President,
on the bill.
THE PRESIDENT: Senator Waldon,
on the bill.
SENATOR WALDON: Thank you
Senator.
Thank you, Madam President.
THE PRESIDENT: You're welcome.
SENATOR WALDON: It would be very
difficult -- let me rephrase that.
It is very difficult not to vote
yes on this proposal simply because it falls
under that zone of issues, one of which we
discussed yesterday, which are so negative and
aberrant in terms of the behavior to the whole
of society that we wish to suppress them.
But I think that we're reinventing
the wheel here. We have statutes on the book
which cover these activities. People grow up
and reach a certain age and are responsible
under our law for making their decisions. I
428
think that it is taken care of under our
current law and I think there's a redundancy
in this proposal.
And because of this inherent
conflict and because of the fact that I
believe that we have to, at some point in
time, say you are responsible for what you do,
I am going to oppose this measure and I
encourage my colleagues to also vote no on
calendar 72.
Thank you, Madam President.
THE PRESIDENT: Thank you.
Senator Duane.
SENATOR DUANE: Madam President,
on the bill.
THE PRESIDENT: On the bill,
Senator Duane, go ahead.
SENATOR DUANE: There are -- the
vast majority of this bill is commendable in
spirit and what it is trying to accomplish. I
am concerned, however, about the provision
263.11, which says about the person who
possesses the obscene material, it says, "He
knowingly has in his possession or control any
obscene performance which includes sexual
429
performance by a child less than 18 years of
age." And I'm concerned about the burden
falling on the person who's viewing it who may
not know the age of the person. Not everybody
looks exactly what their age is. And I am
concerned that someone may be caught in
something unintentionally, when what they were
viewing, they didn't understand that one of
the people performing was of a young age.
The word knowingly is very
difficult to define. And the preponderance of
the bill is certainly something which I
support, but I do remain concerned about
someone who may be -- while may be guilty of
looking at obscene material is, in fact,
innocent of the knowledge that one of the
performers is under age.
Thank you, Madam President.
THE PRESIDENT: All right. Read
the last section.
THE SECRETARY: Section 2, this
act shall take effect on the 1st day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
430
THE SECRETARY: Ayes 55. Nays 1.
Senator Waldon recorded in the
negative.
THE PRESIDENT: The bill is
passed.
That completes the controversial
reading of the calendar.
Senator Meier.
SENATOR MEIER: Madam President,
may we please return to the order of reports
of standing committees?
I believe there's -
THE PRESIDENT: The Secretary -
SENATOR MEIER: -- I believe
there's a report of the Rules Committee at the
desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill directly for third reading:
Senate Print 2346, by Senator
Saland, an act to amend the Social Service
Law, the Family Court Act and the Domestic
Relations Law.
431
Directly for third reading.
THE PRESIDENT: Senator Meier.
SENATOR MEIER: Madam President,
I move to accept the report of the Rules
Committee.
THE PRESIDENT: All those in
favor of accepting the report of the Rules
Committee, signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The report is
accepted.
Senator Meier.
SENATOR MEIER: Madam President,
may we please have the third reading of the
Rules report at this time?
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: In relation to
Calendar Number 115, Senator Saland moves to
discharge from the Committee on Rules,
Assembly Print 962A and substitute it for the
identical Senate Bill 2346.
THE PRESIDENT: Substitution
432
ordered.
The Secretary will read.
THE SECRETARY: Calendar Number
115, by a member of the Assembly Greene,
Assembly Print 962A, an act to amend the
Social Service Law, the Family Court Act and
the Domestic Relations Law.
SENATOR WALDON: May we have an
explanation, Madam President?
THE PRESIDENT: Senator
Waldon -
SENATOR WALDON: May we please
have an explanation?
THE PRESIDENT: -- why do you
rise, Senator.
SENATOR WALDON: I hadn't, but I
will.
May we please have an explanation?
THE PRESIDENT: Thank you.
SENATOR WALDON: Thank you, Madam
President.
THE PRESIDENT: Senator Meier,
why do you rise?
Go ahead.
SENATOR MEIER: Thank you, Madam
433
President. Is there a message of necessity
and appropriation at the desk?
THE PRESIDENT: Yes, there is,
Senator Meier.
SENATOR MEIER: In that case,
Madam President, I move to accept the message
of necessity and appropriation.
THE PRESIDENT: All those in
favor of accepting the message of necessity
and appropriation, signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message is
accepted.
Read the last section.
All right. Senator, an explanation
has been requested.
SENATOR SALAND: Thank you, Madam
President.
Madam President, this bill, which
is the Governor's program bill, represents the
culmination of some rather frantic
negotiations and intense negotiations over the
course of the past several weeks. It
434
effectively incorporates much of what this
house had previously adopted or proposed to
adopt when we passed in the special session a
bill which attempted to comply with the
federal Adoption and Safe Families Act. And
that's what this is all about, compliance with
the federal Adoption and Safe Families Act.
New York is the last state which
has not complied. We have been warned that we
must be in compliance, notwithstanding the
fact that we've passed the cutoff date and
there are some approximate $650 million in 4E
money, which is foster care money, which is at
risk if we are not in compliance.
And let me start off by calling
your attention to the legislative intent
portion of this bill. And I would suggest
that you might want to take a look at page 9
of the bill, because there's some critical
language there which I think basically says is
that, while this state heretofore had
basically -- has as its guiding principle the
concept of family preservation, which
effectively said at any and all expense you
must reunited regardless of what danger the
435
child is in or however badly abused the child
may have been. We start off by saying that
"The legislature recognizes" -- and I'm
reading at line 38 -- "recognizes that the
health and safety of children is of paramount
importance."
Now, that effectively, in part,
complies us with ASFA, but we go on to do a
lot more that helps us to comply with ASFA.
For instance, there are fingerprinting
requirements. Those fingerprinting
requirements say that foster and adoptive
parents will be subjected to fingerprinting,
they -- adults within their household who are
18 years of age or older will similarly be
subjected to fingerprinting. What we're
attempting here is to not only insure the
safety and health of children but the
permanency planning of children. And that's
really what this is about, trying to insure
that children do not languish in foster care,
in effect, ad infinitum, year after year after
year.
If, in fact, a perspective
applicant is, has a criminal record, certain
436
crimes dealing with children, certain crimes
which are enumerated under the federal
statute, including murder, including, I
believe, certain assaults, that's, in effect,
automatically a disqualification. Other
crimes are discretionary. The agency has the
ability to make the determination whether or
not they're relevant to the suitability of an
applicant either as a foster or adoptive
parent.
But, in addition, there is,
certainly well worth noting, that under
Article 10, when issues have arisen with
respect to the placement of children, the
termination of parental rights, under the
existing New York law, it's been virtually
impossible to find severe abuse, it's been
virtually impossible to make out a case for
permanent neglect. What we have done here is
to say that, under certain circumstances, you
have effectively made out a case, which would
do away with the reasonable efforts
requirement of reunifying or preserving a
family. And those circumstances are
aggravated circumstances as defined in the
437
statute, which include felony sexual abuse of
your child, involuntary termination of
parental rights of a child, sibling or
half-sibling, and if a parent was convicted of
murder, manslaughter or violent felony assault
where the victim was the child or the child's
sibling. And there are consequences that flow
from that, effectively, again, doing away with
the efforts that are currently required of an
agency to make diligent efforts to reunite the
family.
And it's important to note that
that becomes, once that initial finding is
made, it becomes res judicata for all other
purposes with respect to that particular child
in that particular proceeding.
So these are landmark changes in
New York's law, changes that are really long
overdue and changes that really, more than
anything else, bring a common sense approach
to trying to deal with issues that in the past
we've basically found ourselves tortuously
dealing with. So it's a victory for common
sense. And, hopefully, today it's a victory
not merely for common sense but for children
438
who have far too long undergone the most
horrid victimization. And we, in effect,
found ourselves under the existing law being
almost accomplices to that victimization.
SENATOR WALDON: Madam President,
would the gentleman yield to a brief question
or two?
THE PRESIDENT: Senator, will you
yeld to a question or two?
SENATOR SALAND: Yes. Yes, Madam
President.
THE PRESIDENT: Senator Waldon,
you may proceed.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, before I ask the question
or two, let me say that I recognize the
importance of this passing for our state. I'm
extremely sensitive to our children who are
sometimes the forgotten class of people in
this state but, especially, New York City
where we've had heinous crimes perpetrated
against them and front page newspaper stories
surrounding children who have been left with
the families far too long.
439
I'm concerned, though, about the
decision making of the Social Service case
worker, and it's the case worker or the
supervisor of the case worker who is legend in
terms of making the right or the wrong
decision, removing the child too quickly or
leaving the child or putting the child back in
an extremely abusive situation where the
child, oftentimes in New York City, has died
under these circumstances.
So I want to know what in this bill
is appropriated to train the
point-of-execution person, the social case
worker on the case, in terms of conforming to
this law so that we will know that the money's
being well spent, that the intent of the law
is carried out from the federal perspective
and, from what we're discussing here today,
that the law will be applied as we wish it
applied so that the children are in better
hands?
SENATOR SALAND: Thank you,
Senator.
Senator, this bill does not, nor is
it intended to, deal with the issue of
440
training for people who are performing
services for Social Service agencies. This
basically deals with agency determinations
and, particularly, judicial, more so judicial
determinations. This basically is setting
forth certain constructs that deal with
permanency planning, which currently you will
find under the ambit of either, I believe,
Section 358 or 372 of the Social Service Law,
makes certain provisions with respect to
Section 1039 of the Family Court Act, all of
which deal with what happens in court when a
child or the petition for the permanency
planning or, in turn, the termination of
parental rights of the child or of the parent
or parents of the child are before the Court.
This does not attempt -- your issue
certainly is one of importance, but it's not
the venue, this vehicle is not the venue to
deal with that issue.
SENATOR WALDON: Okay. One last
question, Madam President, if the gentleman
would yield.
THE PRESIDENT: Senator, do you
continue to yield?
441
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Waldon, one last question.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, if I remember correctly,
when we were briefed on this bill, there's
$3.5 million that the state had to put up in
order to have this bill implemented.
Two prongs: One, could that not be
used for training; and, two, can we not find
some flexibility in all of these hundreds of
millions of dollars to train? Because, if
there's no training, then we'll come back here
three or four years from now and the same
mistakes being made last year, the year before
and the year before that and this year will be
made down the road three or four years from
now.
SENATOR SALAND: The vast
overwhelming amount of that $3.5, if not the
entire amount, is to comply with the
fingerprinting requirement. The bill
provides, and could I give you the section,
442
that the responsibility for the payment for
these fingerprint fees is not on the applicant
but it's on, effectively, the State OCFS or in
conjunction with DCJS. That money's there to
make sure that there's an adequate amount of
money for people to be fingerprinting,
printed, and there's additional dollars that
are part and parcel, some hundred thousand
dollars that deals with a study with respect
to domestic, domestic violence.
SENATOR WALDON: Madam President,
on the bill.
THE PRESIDENT: Senator Waldon,
you may proceed on the bill.
SENATOR WALDON: First, Senator
Saland, let me thank you for your
comprehensive explanation. I think some of us
in the room may not have been up to speed on
this before you so adequately informed us but
now we are.
Number two, I am sincerely
concerned about the absence of money to train
the people at the municipality level. I think
if there is to be success in our receiving
this money and making it work on behalf of our
443
children, there must be a training component.
So I would hope that somewhere later in the
session we will revisit this issue and
appropriate monies to insure the proper
training and training which will be up to the
standard that we want so that our children
will not fall through the cracks as they have
all too often in the past.
Thank you very much, Madam
President.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. Would the sponsor yield for
a couple questions?
THE PRESIDENT: Senator, do you
yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: First of all,
Senator, I too, with Senator Waldon, would
just add a compliment to you. I know that
these were difficult negotiations in the model
444
that the federal government sent down to us.
And I understand the difficulty both in
agreeing with the other house and with the
Governor about how this should work.
Let me just ask a couple quick
questions about, that really dovetail with the
questions I asked in December when we dealt
with this bill, through you, Madam President.
First, is there any evidence that
you're aware of, a study by the Department of
Social Services, either here or in the City of
New York, that says that our presumption in
favor of families is no longer working in this
state?
SENATOR SALAND: The data that we
have tells us that foster care placements in
this state are averaging approximately four
years. Now, as you know, the placements are
intended to be short term, they're renewed or
reconsidered by the Court on an annual basis.
Effectively, what it says is that it's not -
what we're currently doing is not working.
And the focus of the federal legislation is to
try and, basically, remedy the kinds of
situations that New York finds itself in. And
445
I'm sure we're not the only state that finds
itself in that situation. And that, in
effect, is what has gotten us to this time and
place right now.
SENATOR DOLLINGER: Okay.
Again, through you, Madam
President, if the sponsor will continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: I appreciate
your very good lawyer-like answer to my
question. But I'm just trying to find out, is
there any specific study that says that the
reason why those foster care placements take
too long is because of the presumption that we
have in our law in favor of families, and the
corollary, which you properly point out, which
is the need to use diligent efforts to prove
to a Court that there have been diligent
efforts in an attempt to reunited the family?
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SENATOR SALAND: Certainly, the
federal legislative history of ASFA, I
believe, is sort of replete with the kind of
information that I've just offered to you and
perhaps more anecdotal information. You may
have heard in my earlier remarks, I said that
this was at least in part a victory for common
sense.
And I can only share with you my
experience professionally, as an attorney who
has handled these types of issues. Certainly,
there are appropriate candidates for family
reunification or family preservation. What
this bill says is the converse of that is true
as well, that there are very inappropriate
times when family unification should be what's
mandated or required. Quantifying, in terms
of cases, I would hazard a guess we could be
talking 10, 15 percent of the cases, perhaps,
where the situation is such, presents such a
great risk for the child or the children,
vis-a-vis their health and safety, that we
will not and should not return a child to the
household from whence it came.
SENATOR DOLLINGER: Correct.
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And again through you, Madam
President, if I could follow up on that?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: Under current
law in this state, we have a mechanism for
dealing with those severe cases. It does take
some time because there's a requirement that
there be diligent efforts used to attempt to
reunite the family. But we do have a
mechanism set up for the severe cases that you
said where there's an imminent danger to the
child, where there's abuse of the child.
Under the current system, we have a way to
deal with those children to make sure that,
because we believe in the best interests of
the child, that the family is not reunited at
the expense of the child.
We do have that in current law; do
we not?
SENATOR SALAND: Effectively,
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what this does is it shifts the burden from
the agency to the parent, because the burden
upon the agency to show diligent efforts has
been such a burdensome and overwhelming
directive imposed upon the agency that there
have been very few, notwithstanding the
existence of the language providing for severe
and abused children, there have been very few
successful cases of that particular section of
the law resulting in the removal of the child.
SENATOR DOLLINGER: Thank you.
Madam President, just on the bill,
very briefly.
I -
THE PRESIDENT: Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: I appreciate
Senator Saland's candor and I appreciate his
work on this bill. But I voted against it in
December and I'm going to vote against it
again.
And, Senator Saland, and I won't
even assume that you're doing anything other
than describing the law, but I couldn't
disagree with that characterization of this
449
bill more. I couldn't disagree more with the
notion that a family has to prove itself
innocent in order to be able to stay united.
Because it appears as though, and in this bill
that's exactly what happened, that big
government and big brother, with an enormous
big heart, and big government and big brother
always come with big hearts, and the big heart
here says, "We're concerned about the best
interests of the child and what we want to do
is we want to put ourselves in a position
where the parents of the child have to come in
and, in essence, declare themselves to be
innocent in order to continue the child to
remain united."
And, Senator Saland, I agree that
that may not be the full characterization of
this bill, but when we eliminate the diligent
efforts on government's part, on the part of
big brother, we've said government must use
diligent efforts before we dismantle families.
I think that's only appropriate that
government do that before we dismantle
families.
It also seems to me -- and,
450
Senator, again, I don't mean to criticize you
for this. This is not your doing. This is,
in my judgement, the doing of our friends in
Washington, the ultimate big brother, located
400 miles away, filled with people from Kansas
and Oregon and Oklahoma who have decided that
they know what's best for families in New
York. I can't understand why this supposed
conservative government that believes in
families and that believes in government
non-intervention has decided that they're
going to intervene in families and they're
going to make it easier to take families
apart.
Did I miss something in this
revolution that took Washington four years
ago, this family value revolution, which is
now saying, "We're going to make it easier to
take families apart"?
What happened?
What went wrong between 1994 and
1997 when they passed this anti-family bill?
I'll conclude with one other thing.
I'm astounded that we're at a point where
we're going to fingerprint parents.
451
I remember, at the birth of my
three children, one of the greatest things I
got shortly after their birth was their
footprint. You know, you get that little
certificate that says your child's name and
you have this big footprint right in the
middle of it, little tiny, tiny foot. I've
got all three of them locked away in my safe
at home. Those are the footprints of my
children. And here we are, big government,
saying, when you take the footprint of your
child, you better take the hand prints of
their parents because, if they some day commit
a crime, we want to know about that and we
want to be able to some day use those
fingerprints to decide whether or not they
should continue to be parents.
I would submit that our friends in
Washington have been overzealous. I think
they're telling us to do something -- and,
again, I'll go back to the first question I
asked Senator Saland. We established a policy
in favor of families. If there's a pro-family
state in this country, you're living in it
right now. We said unification of families,
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if you believed in family values, put it into
action, put it into your law, make families
and preservation of families a preeminent
concern, not to the detriment of the child,
but make it a preeminent, at least an equally
weighted concern as well. This is the
pro-family state and this bill we pass today
moves us a step back from being a pro-family
state.
I know there have been terrible
difficulties with foster care parent
placements. I know there's terrible abuse
that happens in homes. I know that children
can be in imminent danger of death or serious
physical injury in a home, and it shouldn't
happen. And if we had the family courts
working, if we had our Social Service system
working and doing the right thing, we would
drastically cut down on those instances of
family deterioration and family danger.
Senator Waldon's absolutely
correct, this is a problem that we need to
solve by doing what we do now and doing it
better and not going to a bill that, in my
judgment, doesn't weigh with diligent efforts
453
to keep the families together. And, frankly,
in a time when I thought we were moving to
favor families and strengthen them and bring
them back together, because we all understand
that's where you learn your values, that's
where you get your education, that's where you
get your view on life. For all of those
reasons, we should keep families together.
This bill, to the extent it moves
in the opposite direction, without any
evidence to support it, other than Senator
Saland said there's episodic information,
there's anecdotal information, there may be as
many as 15 percent of the cases, I accept
that, Senator. My anecdotal information, my
episodic information is exactly the same, but
I don't think we should change the policy of
this state, this pro-family policy, on the
basis of our gut reactions to a problem.
Before we change it, we should do a better job
than that.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Yes, Madam
President, on the bill.
454
THE PRESIDENT: On the bill. You
may proceed.
SENATOR SCHNEIDERMAN: I've had
discussions with some of my colleagues about
this over the last few hours as we've been
reviewing these materials, and I certainly
consider myself to be as pro-family as anyone
else. But in my view and in my district and,
certainly, in the City of New York, there are
a lot of families that are a grandparent
caring for a child, that are adoptive parents
caring for a child, that are a sibling caring
for a child. And I intend to vote in favor of
the bill because I know the difficulty with
the presumption that the natural parents are
the only people who can form a family with a
child. And I think that is a detriment to
moving children out of difficult situations.
So I certainly support my
colleague's efforts to make us the most
pro-family of pro-family states, but in my
life and in my world, I think I lost the
footprints to my children during the divorce.
So I'm not as used to the functional family
situation that prevails in the happy lands of
455
Monroe County, perhaps.
I know there are a lot of different
family situations that can work if we will
allow them to work. And based on my own
experience with a case in family court in New
York, I think the presumption, decades old,
that the natural parents are the only people
that can provide a family, is something we do
need to revisit and I intend to support the
bill.
THE PRESIDENT: Senator Saland.
SENATOR SALAND: Thank you, Madam
President.
Senator Dollinger in his remarks, I
jotted this down, said, "What have I missed?"
And I assume that's a question. And
notwithstanding his passion, I'd like to share
with him what I think he may have missed.
Number one, he doesn't have to fear
being fingerprinted or his child being
fingerprinted if, in fact, he is expecting to
become a parent. There's nothing in this bill
that requires a parent to be fingerprinted.
So if, for whatever reason, that troubles you,
you do not have to do it and there's not a
456
parent anywhere that has to do it.
All that this bill requires is that
a foster care or adoptive parent applicant be
fingerprinted. Again, going to health and
safety. Do you want to place a child with a
person who has a criminal record of violence
or who, in fact, is a danger to that child,
reasonably expected to be based on that
criminal record?
But you don't have to worry about
being fingerprinted. So you missed that.
Let me suggest something else that
you missed. You talked in terms of diligent
efforts. Is it really an onerous change in
the burden of proof when you have a parent who
has sodomized or raped his three year old to
say that the state should not be require -
should be required or should no longer be
required to go through diligent efforts to
reunite that family? Because what we're
talking about here are extreme cases. When
you have a situation in which a parent has
murdered the sibling of a child, should the
state have to show that it must make diligent
efforts to reunite and preserve that family?
457
Because that's what you're requiring here.
When the state finds itself in a
situation where involuntarily, not
voluntarily, involuntarily, the rights of a
sibling or half-sibling have been terminated,
should they then have to go through the whole
exercise again? The parent will still have
his or her right to be in court and to say why
they should continue. But what we're doing is
burden shifting. And burden shifting, in a
way, again, that I would submit to you, makes
common sense. Burden shifting, in a way that,
given the particulars and given the limited
examples that we're using here, and these are
limited and defined in statute, we're not
talking about the immediate world, we're not
talking about each and every case, we're
talking about the most egregious, the most
offensive, the most heinous of cases in which
a child, more often than not, has been
brutalized. Should the state have to then go
through, in the name of being pro-family, an
exercise to show why that rapist, that sex
offender, that murderer should have the right
and should, in fact, be the subject of an
458
effort of diligent efforts by to the state to
make sure that it stays together? They can
still come into court, they could still have
their day in court, should they want their day
in court, but the state no longer has to prove
diligent efforts. I don't consider that to
be, nor do I think many people would consider
that would be, given the way this has been
framed, a horrible burden or a denial of
anybody's rights. I think they would consider
it to be, certainly, a very wise policy
exercise on the part of this state and a wise
policy exercise that effectively says the
health and safety of children are paramount.
We still believe that there is
appropriate places for family preservation and
unification, but where the health and safety
of a child is jeopardized, that comes first.
That's all we've done here.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 58, this
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
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THE SECRETARY: Ayes 55. Nays 1.
Senator Dollinger recorded in the
negative.
THE PRESIDENT: Senator Bonacic.
SENATOR BONACIC: Madam
President -
THE PRESIDENT: The bill is
passed.
Go ahead.
SENATOR BONACIC: May we please
return to the reports of the standing
committees?
I believe there's a report of the
Aging Committee at the desk.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Maziarz,
from the Committee on Aging, reports:
Senate Prints 461, by Senator
Holland, an act to amend the Vehicle and
Traffic Law;
811, by Senator Maziarz, an act to
amend the Real Property Law;
1836, by Senator Farley, an act to
460
amend the Education Law.
All bills directly for third
reading.
THE PRESIDENT: Without
objection, all bills ordered direct to third
reading.
Senator Bonacic.
SENATOR BONACIC: Madam
President, is there any housekeeping at the
desk?
THE PRESIDENT: No, there is not.
SENATOR BONACIC: There being no
further business, I move we adjourn until
Monday, February 22nd, at 3 p.m., intervening
days being legislative days.
THE PRESIDENT: On motion, the
Senate stands adjourned until Monday, February
22nd, at 3 p.m., intervening days being
legislative days.
Have a good break.
(Whereupon, at 12:25, the Senate
adjourned.)