Regular Session - March 1, 1999
558
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 1, 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 please
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 26th. The Senate met
pursuant to adjournment. The Journal of
Thursday, February 25, was read and approved.
On motion, Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Senator Skelos.
SENATOR SKELOS: Madam President,
560
if I could just interrupt. There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
THE PRESIDENT: All right. There
will be an immediate meeting of the Rules
Committee in the Majority Conference Room.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
State officers.
Motions and resolutions.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: I move to commit
Senate Print Number 1350, Calendar Number 197
on order of third reading to the Committee on
Finance.
THE PRESIDENT: So ordered.
SENATOR SKELOS: Madam President,
I believe there's a privileged resolution at
the desk by Senator Bruno. I ask that the
title be read and moved for its immediate
561
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Bruno,
Concurrent Resolution 465 of the Senate and
Assembly authorizing the Senate and Assembly
of New York State to purchase copies of the
New York Red Book for 1999-2000.
The Senate sends for concurrence
Assembly Resolution Number 187 identical with
Concurrent Resolution Number 465.
Senator Bruno now moves that the
Assembly Concurrent Resolution be substituted
for his identical Senate Concurrent
Resolution.
THE PRESIDENT: Substitution
ordered.
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 42.
THE PRESIDENT: The resolution is
adopted.
Senator Meier.
SENATOR MEIER: Madam President,
at this time, may we have the reading of the
562
non-controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
77, by Senator Skelos, Senate Print 1016, an
act to amend the Penal Law in relation to
increasing the penalties for custodial
interference.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the 15th day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 41. Nays 1.
Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
110, by Senator Maziarz, Senate Print 131, an
act to amend the Alcoholic Beverage Control
Law in relation to requiring the publication
of notice.
563
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect in 60 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 42.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
136, by Senator DeFrancisco, Senate Print
1148, an act to amend the Parks, Recreation
and Historic Preservation Law in relation to
requiring the completion of improved snow
mobile safety course.
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 42.
THE PRESIDENT: The bill is
passed.
564
THE SECRETARY: Calendar Number
137, by Senator DeFrancisco, Senate Print
1153, an act to amend the Parks, Recreation
and Historic Preservation Law in relation to
the operation of a snowmobile.
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 42.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
164, by Senator Nozzolio, Senate Print 135, an
act to amend the Civil Practice Law and Rules
and the Court of Claims Act in relation to
prisoner litigation reform.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is
set -- is laid aside.
THE SECRETARY: Calendar Number
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166, by Senator Johnson, Senate Print 760, an
act to amend the Penal Law in relation to
aggravated harassment of a court clerk by an
inmate.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
167, by Senator Meier, Senate Print 922, an
act to amend the Penal Law in relation to
permitting a court to impose a sentence.
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 43.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
169, by Senator Padavan, Senate Print 1047, an
act to amend the Penal Law in relation to
including police officers in the violent
566
felony offense of aggravated assault.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect the 1st day of November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes 43.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
172, by Senator Goodman, Senate Print 1109, an
act to amend the Penal Law in relation to
computer networks.
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.
(The Secretary called the roll.)
THE SECRETARY: Ayes 43.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
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174, by Senator Wright, Senate Print 1223, an
act to amend the Penal Law in relation to
assault with a noxious material.
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 47.
THE PRESIDENT: The bill is
passed.
Senator Meier, that completes the
non-controversial reading of the calendar.
Senator Meier.
SENATOR MEIER: Madam President,
I believe Senator DeFrancisco would like to be
recognized.
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: I just
wanted everyone in the chamber to note that,
from time to time, we honor special guests who
come to visit us in the chambers. I'd like to
568
recognize Senator Mike Balboni up in the
gallery and thank him for showing up at this
particular meeting.
Thank you.
(Laughter and applause.)
THE PRESIDENT: So recognized.
Senator Meier.
SENATOR MEIER: Well, now that
we've taken care of that, may we now have the
controversial calendar, Madam President.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
164, by Senator Nozzolio, Senate Print 135, an
act to amend the Civil Practice Law and Rules
and the Court of Claims Act in relation to
prisoner litigation reform.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Nozzolio,
an explanation has been requested.
SENATOR NOZZOLIO: Thank you,
Madam President.
I would be pleased to describe this
measure as a good faith attempt to insure that
inmates with meritorious claims are not denied
569
the right to bring such action but to provide
a mechanism where we can eliminate or at least
limit the frivolous cases brought by prison
inmates today while at the same time
preserving their ability to pursue legitimate
claims by requiring inmates exhaust their
administrative remedies prior to bringing an
action in court establishing a modest filing
fee in the Court of Claims to, in effect,
filter out those claims which are presented
with lack of seriousness by prison inmates.
SENATOR WALDON: Question.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Madam President,
would the gentleman yield?
Has he concluded his statement?
THE PRESIDENT: Senator Nozzolio,
are you prepared to yield?
SENATOR NOZZOLIO: Is Senator
Waldon asking me to yield, Madam President?
THE PRESIDENT: Yes, he has,
Senator Nozzolio.
SENATOR NOZZOLIO: I'd be happy
to yield.
SENATOR WALDON: Thank you very
570
much, Madam President.
THE PRESIDENT: You may proceed,
Senator Waldon.
SENATOR WALDON: Senator
Nozzolio, was this action brought for the
$660,000 settlement that I read in the paper
over the weekend, was it brought in our state
court or was it brought in a federal court?
SENATOR NOZZOLIO: Madam
President, I believe the action referred to by
Senator Waldon, is an action which took place
through the previous half year, which, this
last week, awarded the slayer of Police
Officer Edward Byrne, the same police officer
who is memorialized by the Edward Byrne
Anti-Crime Funds. In his honor monies
distributed to police departments throughout
this state. That officer was, unfortunately,
the victim of a crime. He was murdered and
the perpetrator of that murder was sent to
prison. That inmate was also given solitary
confinement. Some federal judge, through lack
of wisdom and foresight, provided a $660,000
award to the slayer of Police Officer Edward
Byrne.
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This bill would do nothing to
impede that process of inmates providing
themselves an opportunity to sue in court.
The measure we passed last week, I might add,
unanimously by this Senate, is a measure that
I think would impede that type of litigation
because it would require, Senator Waldon -- I
know you supported the legislation, I think
you would like to know -- that the proceeds of
that award, unfortunately, under our current
law, only go to the inmate who brought the
suit, not one cent to the crime victim, not
one cent to the crime victim's family. That,
hopefully, you, Senator Waldon, and others on
that side of the aisle, will encourage your
colleagues in the State Assembly to enact the
measure which we enacted unanimously last week
that got to the heart of taking those awards
that inmates do receive and insuring first
that crime victims are protected.
But, Senator, to answer your
question, that matter which you referred to
was brought in federal court.
SENATOR WALDON: Madam President,
would the gentleman yield again?
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THE PRESIDENT: Senator Nozzolio,
do you continue to yield?
SENATOR NOZZOLIO: I'd be happy
to yield.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Thank you very
much, Madam President.
Senator Nozzolio, Edward Byrne was
a police officer in a precinct that's in
Southeast Queens. In fact, where he was
killed is in the district of the distinguished
Senator, Senator Ada Smith, on this side of
the aisle. We were all troubled and horrified
by his assassination. None of us condoned
that kind of behavior. All of our hearts
bleed for the family of Police Officer Byrne
and any police officer so assassinated
anywhere in this country.
But what you're proposing, if I may
address it more directly, is to have the
inmates pay to have the right to sue and to
really hassle their ability to bring the suit
whether it is meritorious or not, as I view
it. And the point I was trying to make when
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asking the question about the federal
jurisdiction, which you meandered us through
very well and was a nice journey that you took
us on, whether or not that was the place where
this suit arose. And, if so, if -- your
answer was yes, finally. But, again, if you
would revisit it, if that is the case, then
what would this proposal do to preclude an
inmate from suing in federal court where the
federal judge may feel that he has a right or
she has a right to sue?
SENATOR NOZZOLIO: Senator, Madam
President, through you, that Senator Waldon is
correct, we do not have jurisdiction to
provide filing fees on federal court matters.
What this does is provide a filing fee
requirement for those inmates who are suing in
state courts. And that we've seen a
tremendous backlog in those cases in New York
State court, this is a partial filing fee and
it's for civil wrongs against the State of New
York that we're talking about, those types of
actions; property damage, other types of
claims.
We're saying, simply, that a
574
prisoner needs exhaust his administrative
remedies first, go through the inmate
grievance procedure. Now the inmate grievance
procedure may not be perfect, however, it is
in place and it should be utilized. We're
saying do that first. After you've done that
and still do not have the satisfaction, you
have the right then to go to the New York
State courts and sue the State of New York, as
many inmates do. We have a 15,000 case
backlog in our state courts today. And what
we're saying is that now the, the prisoner,
who, growing in litigation, we have at least a
third of the cases in New York State courts
today are brought by prison inmates. That is
something that is incredible, when you think
about it, that 33 percent, over 33 percent of
our cases are brought by inmates.
We're simply saying they have the
right to bring the case, but they need to
present at least a partial filing fee to
access the court, just as you or I, Senator,
or any of your constituents or my constituents
would have to present if they sought redress
through the state courts. Again, emphasizing,
575
the filing fee is a partial filing fee. Let
me also state that, if there is indigencies,
that there is a place where, a method, where
the inmate may seek to waive that fee. So we
have that opportunity as well.
SENATOR WALDON: Madam President,
if I may, on the bill.
THE PRESIDENT: Senator Waldon,
on the bill.
SENATOR WALDON: Thank you very
much, Madam President.
Thank you, Senator Nozzolio.
I'm troubled when we want to put so
many hurdles in the path of someone who, for
his or her own sanity, may feel that they have
a meritorious cause. I'm troubled when
someone is in a very insular environment, as a
prison may be. I know I visit them on a
somewhat frequent basis, and I know the
esteemed Senator, because of his chairmanship,
probably visits them much more so than I. But
when I visit the prisons, I do not see people
always, not that I've never seen them, but
always who feel very comfortable in going
against those that are there to guard them. I
576
meet many people inside the prisons who feel
that the system is against them and that, if
they have the nerve to rail against the
system, that the system will come down upon
them and be very, very oppressive. And so I
feel that to create such an ominous hurdle, as
you must pay the fee and you must exhaust all
administrative remedies first, no matter how
meritorious you feel your cause is, is too
much of an impediment for these people who are
in prison to have their rights, if you will.
And so I would encourage my
colleagues to recognize that there may be one
person in prison who has a meritorious cause
of action and who is so intimidated by the
system that he or she will not file because of
an impediment like this if this were to become
law. And that even someone in prison should
have hope, even someone in prison should be
allowed the luxury of hope. It doesn't cost
anything. And under our system, we are a
nation which has encouraged hope. So would I
hope that my colleagues will hear what I'm
saying and will vote down this proposal. I do
not think it is a timely measure at this
577
moment.
I thank you very much, Madam
President.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
Excuse me.
SENATOR PATERSON: Thank you,
Madam President. Would the Senator yield on a
few questions related to the bill before us?
SENATOR NOZZOLIO: Yes, Madam
President, I would be glad to yield.
THE PRESIDENT: All right.
Senator Paterson, you may proceed.
SENATOR PATERSON: Thank you.
Through you, Madam President.
Senator, do you know or would you
like to give us any statistics related to the
explosion in these cases that are being
brought by people who are currently
incarcerated in our state prison system?
SENATOR NOZZOLIO: Yes. I would
be happy to go through some numbers that I
578
have regarding this issue for Senator Paterson
and my colleagues. But before I do, Senator,
if I also may, a point Senator Waldon made
that I'd also think you'd find interesting
relevant to that issue.
The inmate grievance procedure may
have some inmates intimidated, but the fact of
the matter is that it is a procedure which is
being kept sacrosanct by the court system that
the State of New York was just charged with
over a hundred thousand dollars in penalties
because in some of the facilities in our state
the inmate grievance procedure was not being
kept too intact, the way we would like to see
it, the way it was designed to be kept intact.
In other words, that grievance procedure is
being continually oversought, continually
reformed.
There are approximately 95 percent
of all prison inmate litigation is dismissed.
There are, in terms of the escalation of
inmate litigation, we have seen enormous
increases over the past 10 years, that we are
providing numbers of suits from -- over the
last 20 years, we've seen the number of suits
579
rise from approximately 30 to over 7,000.
Those suits in number are increasing. Of
course, during that time, the prison
population in this state also increased a
great deal. It almost doubled during that
period of time. But, still, the number of
litigations in state court have increased
dramatically.
As I said earlier, Senator
Paterson, all prison litigation accounts for
approximately one-third of the defense load in
the New York State court system that -
SENATOR PATERSON: Would the
Senator yield for another question?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Since the
prison population has risen in the last 10
years from approximately 38,000 to over
70,000, it would seem sequential that there'd
be an increase in the number of cases. So,
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therefore, what might bring us closer to a
definition of how severe the increase is,
would be if you might be able to provide us as
to what the per capita number of suits that's
being brought by the inmates might be.
SENATOR NOZZOLIO: Well, if -- as
I side, the number of suits, it's almost 7,000
suits for 70,000 inmates, I guess that's one
in 10. There will be a lawsuit, one lawsuit
per every 10 inmates. That contrasts with a
much markedly different role, even though the
prison population doubled, the suits, as I
said, Senator, went from less than a hundred,
closer to 70, closer to 50, rather, all the
way up to now 7,000. So exponentially, the
number of suits have gained a great deal.
And I think what we need to do,
though, is say, not to -- we're not trying to
simply cut off litigation. The United States
District Court for the Northern District of
New York established a partial filing fee
program for inmates a couple of years ago.
And as a result, we've seen a 46 percent
decrease in meritless prisoner litigation
actions. That we're only saying that, if you
581
want to access the courts, you need to do so
at some expense. If you're indigent, if you
have no funds available to you, then the court
could waive this filing fee and the filing fee
could be taken out of the award offered to a
prison inmate if he's successful.
What we're saying here is, let's
establish a system of equity, one where prison
inmates are not treated any differently than
citizens are, except in a sense getting a 50
percent break on the cost of a filing fee.
That's only fair.
We're not talking about litigation
that gets to the length of incarceration or
the type of incarceration. We're only getting
here to grievances against the state for some
type of perceived fault that the -- during the
incarceration.
So I think you need to take a look
at the fact that we're not limiting access to
the courts. We're only saying that, if Joe Q.
Citizen has to spend X amount of dollars to
access the state courts, then why shouldn't a
prison inmate have to spend a portion of that
filing fee in order to do the same thing.
582
SENATOR PATERSON: Thank you,
Senator. I understand what you're saying and,
certainly, frivolous lawsuits have no place in
our judicial system and they really just do
nothing more than take a lot of time and waste
a lot of resources. And I can understand
that. But when I look at this particular
situation, at least from some research that's
been provided to us by the Prisoners Legal
Services and the Legal Aide Prisoners -- and
by the Legal Aide Society, I'm sorry -
THE PRESIDENT: Senator Paterson,
are you on the bill at this point or do you
wish to have more time devoted to your
question?
SENATOR PATERSON: No, I'm asking
another question, if the Senator would yield.
THE PRESIDENT: All right.
Senator Nozzolio, do you continue to yield?
SENATOR NOZZOLIO: Yes, Madam
President, I'd be glad to yield.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: So, therefore,
what I'm saying is that there is certainly,
583
there are some other methods in which other
institutions have handled this. In the
federal system what they have often done is
set up pro se panels by which they review and
throw out many of the frivolous cases, and
they seem to have a different numerical
coefficient of how many frivolous cases there
are as opposed to your research. But my
question relates to something we just
discussed a minute ago.
You said that there were now 7,000
cases provided by 70,000 prisoners and that,
although the prison population had doubled,
you approximated the original number of cases
as somewhere between 50 and a hundred. Now, I
was here 10 years ago.
Are you sure that there were only
50 to 100 cases brought 10 years ago by
prisoners in our New York State prison system?
SENATOR NOZZOLIO: Madam
President.
THE PRESIDENT: Senator Nozzolio.
SENATOR NOZZOLIO: In response to
Senator Paterson, I didn't say 10 years ago.
I said 20 years ago, that the number of
584
lawsuits has increased from 25 in 1976, that's
23 years ago, to over 7,000 today. That the
prison population in 1986, you're saying,
was -- I'm not sure what it was, but if you
say it was half, that's -- let's take 1985,
'84, there were about 6,000, 6300 suits in
each of those years back to 1990 -- 1983, '84
years. So it's gone about 500 suits more a
year filed today than there was about 10 years
ago.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield?
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR NOZZOLIO: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Well, Senator,
if we're going back to 1976, well, in 1976 the
state prison system population was a little
more than 15,000. So, in other words, now
we're down to one-sixth of -- I'm sorry -
one, roughly somewhere between a quarter and
585
one-fifth, about, I'd say, 23 percent of the
current prison population. So that would make
the per capita rate much, much higher at that
particular time. So the increase wouldn't be
quite as much as we might have first thought.
SENATOR NOZZOLIO: Madam
President, not to argue with my good friend
Senator Paterson about the math, but, David,
if we only had 50 cases brought in 1976 with
25 percent of the inmates, I'll gladly
quadruple the amount of inmates or the amount
of inmate litigation based on that 1976
average.
The way I figured it, if it was
four times what the -- commensurate with the
inmate population, there would only be 200
lawsuits filed by inmates as opposed to 7,000.
But the point is, we look at the
fact that over 32 percent of the defendant
cases in our state system today is brought by
inmates. Now, that's an awful lot of
litigation. And, frankly, what's happening -
and, of course, you're going to hear from the
prisoners' legal services folks because they
want litigation, they're lawyers. They'd
586
rather sue than go through the litigation
process of a grievance procedure. You don't
need lawyers to go through the grievance
procedure, often. That's what it's set for.
You can have a lawyer, but you don't have to
have a lawyer. And the fact of the matter is,
the grievance procedure is not being utilized
to what it should be. And, if anything, the
filing fee would encourage inmates to get
justice quicker, less expensively and,
certainly, less expensively for the taxpayers
through the grievance procedure instead of
clogging the courts.
So we're saying, let's make the
courts a system of last resort, a justice
system of last resort, and let's establish a
filing fee that's similar to what the federal
courts have for prison inmates.
Prison inmates still are accessing,
David, the federal court system. There
have -- we just -- Senator Waldon mentioned we
just had a very large dollar award going to a
convicted murderer last week. That was a
federal court action. A filing fee didn't
seem to deter that action. And, frankly, I
587
think it wouldn't deter all that much here as
opposed to simply making it a better system.
SENATOR PADAVAN: Thank you,
Madam President.
Thank you, Senator Nozzolio.
Madam President, on the bill.
THE PRESIDENT: On the bill,
Senator. Go ahead.
SENATOR PATERSON: There was a
$600,000 award rendered last Friday. Earlier
I had heard that it was by a federal judge.
But my understanding is it was by a federal
jury. And that whoever did it, I find the
award to be shocking. It's something that I,
honestly, do not understand. And I certainly
hope that the family of Officer Byrne will sue
in the civil court for whatever they may have
been entitled to had the defendant at that
time been in position to provide them with a
civil recovery.
But we are not here to overturn a
jury verdict. We're here to look at the issue
of filing fees. And the fact is that, as
appalling as we might find that particular
verdict, we don't know the evidence in that
588
case. We didn't listen to it. And I don't
know that it's right for us to make
presumptions about the judge or the jury, not
having been in the position that they were in,
which is that we, that they heard the
evidence. What we would be well advised to
focus on would be just the issue of whether or
not there was actually a case. In this
particular situation, it related more to who
the prisoner was as opposed to what the
institutional responsibility may have been.
And as much as it kind of offends me that this
particular prisoner could receive this type of
award after committing such a heinous act 10
years ago, we are still in this country bound
to house even those who we find to have
engaged in the most egregious conduct in what
would be a professional way, in terms of
corrective and incarcerated, incarcerative
action.
And so, did the actual individual
in this case have a case that was valid and
should actually be tried? Apparently, having
served 1500 days, in excess, of solitary
confinement, I guess perhaps they did, whether
589
or not we agree with the inevitable outcome of
the case.
The prisoners legal services and
the prisoners rights project of Legal Aid
Society have taken some measures right here in
New York State to try to limit the number of
frivolous lawsuits. There does seem to be
some disagreement between them and the work
that was conducted by the previous attorney
general and the very able Senator who is the
sponsor of this bill. But I think that as we
go forward, the thing that we have to be most
aware of is the fact that, no matter how much
we may disdain the acts of certain people who
we've incarcerated, this country's democracy
is probably tested at its greatest level by
how we treat those who we incarcerate. And to
that end, there are times that these
situations, where there are abuses, not in all
cases but certainly in some, not in a number
of cases where there has been any kind of
court finding, but the fact is that there are
some abuses in our correctional facilities and
we are mandated to react to them. The best
reaction is probably through the judicial
590
process, since there is a limited way in which
the message can get out. There are situations
around the country, well documented, where the
notion of correction, correctional policy was
changed from lawsuits that emanated from those
who were actually incarcerated.
And while all of us who are in the
Legislature have probably gotten a number of
letters that are quite long and in many ways
quite euphemistic from prisoners who,
apparently, have time to write these long
documents, and the, certainly, the notion of
what they're trying to express is somewhat
cloudy and their perception of what
constitutes a valid lawsuit may not be that
that we all might agree with, the fact is
that, even if we would err slightly, we would
want to err on the side of having a democratic
system. We do not provide those who are
incarcerated with all of the rights of those
who live in a democracy, but we do try to
assure their physical protection, their
acquisition to healthcare and some basic needs
that they are entitled to.
And so it is the reason that
591
Senator Waldon, I think very properly,
expressed, that we've got to be very careful
in passing this kind of legislation so that we
don't limit the actual ability of those who
are incarcerated to, in their limited way,
still participate in our form of democracy.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Thank you,
Madam President. I would like -- if the
sponsor would yield for one question.
THE PRESIDENT: Senator, do you
yield?
SENATOR NOZZOLIO: Certainly,
Madam President.
THE PRESIDENT: Go ahead, Senator
Montgomery.
SENATOR MONTGOMERY: Thank you.
Senator Nozzolio, do you -- are you
aware of what is the income of inmates, what
we pay them?
I see downstairs we have a
wonderful display of the products that are
made in our prison facilities by inmates.
What is their income?
592
Do you -
SENATOR NOZZOLIO: Madam
President, I'd like to say that all inmates
work in this state. I would like to pass a
bill that would force inmates who are able
bodied to work. But, unfortunately, all
inmates don't work, by choice, their choice.
This Legislature does not require them to. I
wish it would, but it doesn't. Now, those
that do work, however, do make a small amount
of money as a wage, which their work doesn't
begin to offset the amount that it costs to
incarcerate someone.
But, Senator, I'd just like to
point out to you, that those inmates that
don't have large accounts in the bank, don't
have a lot of cash, have the right to apply to
the court and ask for a waiver of the fee.
This doesn't preclude anyone from bringing
litigation because they don't have enough
money. That simply by applying to the court
an application to the court, the court has the
power under this legislation to waive the fee
or postpone the fee.
And that, Senator, I know your
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concerns are sincere and legitimate regarding
those who don't have the amount of money
available to them to pay this fee, and I think
the legislation takes care of it. It
addresses that by providing simply their
ability to apply for a waiver, they can obtain
the waiver from a court, the court simply can
allow them to proceed without paying the fee.
But for those inmates that do have accounts,
and some do have money, those that are
bringing litigation certainly do, that
oftentimes they do, that this requires those
that do have the funds to pay the fee.
SENATOR MONTGOMERY: All right.
Thank you. Thank you, Senator Nozzolio.
Just, Madam President, briefly on
the bill. I see that Senator Nozzolio has
been very careful to establish a waiver in the
bill. But, nonetheless, even with the waiver,
there is an intent, as so stated in his memo
and in the explanation for, for the bill, that
the intent is definitely to reduce the number
of cases brought by inmates and to establish
that this is one way of trying to have inmates
not come or discourage them from coming with
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their various suits.
And I just want to remind the
Senator that, and my colleagues, that the
sentencing, the federal sentencing project,
Madam President, when they looked at arrests
for one area, and that was use of drugs or
crimes related to drugs, there were, I think,
13 percent of the arrests we African-American.
But then, when it comes to the sentencing,
it's 89 percent of those sentenced for
drug-related activities were African-American
or Latino. So, clearly, there is something
that happens that there is a disparity between
arrests, or the number of people who are
actually committing the crimes, and this
statistic tends to be true for all areas of
crime, including murder and on down, that
there are more white people, essentially, or
at least as many, committing crimes, but the
sentencing is very different. So the system
really is not, it's not -- there is not a
level, there's not equality, there's not a
level playing field, if you will, in terms of
what happens in corrections, in the justice
system. And, furthermore, we have examples
595
before us, as recently as -- well, right
now -- but as recently as a few weeks ago in
one of the local prisons, in Nassau County,
where, obviously, a person was attacked by
people in the prison. And that case, in that
case, the person who did the attacking was
high enough up that you couldn't possibly
expect that the inmate could appeal to the
administration, because it's the
administration who's doing the excessive force
there. So, we can't always rely on access to
the administration as the answer for inmates.
We understand that coming into the
system and all aspects of it there is an
inequality that exists, there is a disparity
that exists, there is an attitude about what
and how much access to any outside
intervention on behalf of inmates that there
is. And we also know -- at least I get
letters all the time, from inmates asking me
to have them transferred to places where there
are programs in place so that they can develop
a skill, they can do work. So those, even
those who don't have money or are not working,
certainly, would like to, many of them are.
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And the last point that I would
like to make, Madam President, is that, since,
in the last few, few years, when we've gotten
our budget from the Governor, the Governor has
proposed that the Prisoners Legal Services
Program be cut. Now, the information that I
have always received from the Prisoners Legal
Services, albeit biased because they have a
self-interest in it, but they say that the
ability for inmates to bring cases and their
involvement with those inmates helps to reduce
the number of frivolous cases. Yet, year in
and year out, we get a budget from the
Governor that cuts the Prisoners Legal
Services. So, there is, there is a disconnect
here. We want to, on one hand, control the
number of frivolous cases that come before the
courts, but on the other hand we eliminate the
one possibility of making, making it possible
for us to save because this organization can
help to reduce the number of cases, while at
the same time not making it appear that we
want to discourage inmates to have the right
to do that.
So, I join my colleagues, Senator
597
Waldon, Senator Paterson, in opposing this
legislation because I think that it makes the
wrong statement. It is not necessary for us
to do this. There are other ways more
efficient, more effective and fairer to do it,
so I'm voting no on this legislation, Madam
President.
THE PRESIDENT: All right. Read
the last section.
SENATOR WALDON: Explain my vote.
THE SECRETARY: Section 4. This
act shall take effect on the 1st day of
January.
THE PRESIDENT: Senator Waldon,
to explain your vote.
SENATOR WALDON: Thank you very
much, Madam President. The point made by -
THE PRESIDENT: Senator, if I -
Senator -
SENATOR WALDON: -- Senator
Montgomery was absolutely brilliant -
THE PRESIDENT: Senator Waldon,
before we do that, we should call the roll,
sir.
SENATOR WALDON: Okay.
598
THE PRESIDENT: Excuse me.
SENATOR WALDON: All right.
THE PRESIDENT: Go ahead. Call
the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: The point made
by my esteemed colleague, Senator Montgomery,
was absolutely brilliant, when the resources
for defending people, not just within the
prison system, but across the criminal justice
system, are dramatically reduced, there is no
buffer to the processes which they find,
meaning the prisoners in this instance, find
oppressive.
When I first came to the
Legislature in 1983, there was talk of
rehabilitation, but in recent years, across
the nation, rehabilitation is no longer in
vogue. It is now punishment, punishment and
more punishment. And if you have an increase
in the numbers of those who are in prison,
you're going to have, at the very least,
perhaps, a proportional or proportionate
increase in the number of suits filed. But if
599
it happens that the system itself has become
more oppressive since 1983, then it will not
just be an kind increase in the numbers of
cases filed, but an even great, an even
greater number because the pain and suffering
of those who are in prison has increased and
intensified.
For all of those reasons, I think
that we have to disagree with the proposal of
Senator Nozzolio and we have to try to create
a mindset in the state which recognizes that,
despite the fact that people are in prison,
they are, too, human beings. They also are
human. They hurt. They have needs. They
have loved ones who are concerned about them.
And if we take away that thing that is called
hope from those who are in prison, we're
creating problems not only for the prisoner
but for the guards who are mandated to guard
them on a daily basis. So why victimize the
guards with foolish proposals, in my opinion,
like this? This is not an attack to Senator
Nozzolio, but I just think this is a foolish
idea and we should dismiss it as such and vote
it down.
600
Thank you very much, Madam
President.
THE PRESIDENT: Senator Waldon
will be recorded as voting in the negative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 164 are
Senators Connor, Duane, Montgomery, Paterson,
Schneiderman, Seabrook, Smith, Satvisky and
Waldon.
Ayes 46. Nays 9.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
166, by Senator Johnson, Senate Print 760, an
act to amend the Penal Law in relation to
aggravated harassment of a court clerk by an
inmate.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: Senator Johnson,
an explanation has been requested.
SENATOR JOHNSON: Madam
President, this merely adds to the category of
persons who would be guilty of aggravated
601
harassment of an employee by an inmate, adding
to the employees of a mental facility or a
correctional facility or probation officer,
the court clerks in those jurisdictions.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Madam Chair,
Madam President, would the sponsor yield to a
question, please, or two?
THE PRESIDENT: Senator Johnson,
will you yield to a question?
SENATOR JOHNSON: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Thank you, Madam
President.
This isn't a new question. I
raised this in the committee and I was hoping
that maybe I could be provided with an answer.
I'm wondering how many
circumstances there have been of this throwing
of feces or urine at, at these members of the
court staff.
SENATOR JOHNSON: Of course, the
original bill to which this is an amendment
602
was enacted because of instances of this type
taking place in correctional facilities.
Subsequently, it was added probation officers.
And now this is going to add court officers.
And the reason is because court officers
actually are those persons to whom custody is
given when he's delivered to the court by the
correction officers or the police. The court
officers take charge, at that point he would
be in a similar position as a correction
officer and subject to possibly the same type
of activity by the inmate.
SENATOR DUANE: I'm still unsure,
Madam President, if anyone has actually ever
brought up a number of these kinds of cases
and I remain hopeful that someone could do so
if such a harassment -- it's, by the way
clerks, if this, you know, if such a problem
exists, if we could finally have some numbers
on how many clerks have actually been impacted
by this.
Madam President, if the sponsor
would yield to another question?
THE PRESIDENT: Senator Johnson,
do you continue to yield?
603
SENATOR JOHNSON: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: This is the
second time that we have in the session so far
this year had these feces and urine, body
fluid pieces of legislation. I'm wondering if
it might not be more productive if we had sort
of an omnibus or dedicated a day to feces and
urine, something like that, rather than doing
it in a piecemeal way. Because, if it's a
problem, then it's a problem. And if it's not
such a problem, then I think we should do it
sort of in a more encompassing kind of way.
But I don't think it's productive to do it in
this way, you know, sort of personnel line by
personnel line, but it would be better if this
is a problem, because as Madam President and
the sponsor know, I believe that this is much
more of a mental health issue than it is a
felonious issue, and I think that we need to
have a discussion on it on that basis.
And I'm wondering if any thought
had been given to sort of putting all of these
604
categories together into one piece of
legislation so we could debate it in that way.
SENATOR JOHNSON: Senator, if
that's a question, my answer is that this has
been requested by the court officers, as it
has previously been requested by the probation
officers, to be added to the category of
protected members in this type of a bill.
Now, I don't know of all the
possible groups or individuals you could add.
Perhaps you could add all their fellow inmates
into the category as well. But, really,
Senator, I don't know how far to go, but I
would say that this is a good move, it should
be done because they stand in a position to be
injured in a similar manner or assaulted in a
similar manner as the other categories which
are already in the law.
And if you know of any categories
that would be added, Senator, I would say that
you should advance that motion on your own,
perhaps, not at this time, but, I mean, in the
form of a bill or other type of suggestion to
other members if you'd like to carry a bill
like that. But this takes care of this
605
particular situation which was brought to our
attention at this moment.
SENATOR DUANE: Madam President,
on the bill.
I do strongly believe that, in the
absence of having statistics on how large a
problem this is with clerks, with probation
officers, with various court and correctional
personnel, that we should not continue to vote
on these pieces of legislation but look at
this and see whether it is, in fact, a
problem, if it's a problem of our criminal
justice system or if it's, indeed, a problem
of the mental health situation that some of
our incarcerated people have. And I intend on
voting no on this legislation.
Thank you, Madam President.
Thank you.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
I'm going to vote in favor of
Senator Johnson's bills, but it just strikes
me as terribly ironic that, in this instance
606
where we have, I believe, maybe one case in
the history of this state, we're going to
create a statute that says this is a form of
aggravated harassment and, yet, we know for
sure there are thousands of cases of women
seeking access to healthcare in this state
who, every single day, undergo harassment and
annoyance in an attempt to discourage them
from something that they're constitutionally
entitled to do and, yet, this body can't pass
a bill to protect them. We're protecting a
hypothetical court clerk somewhere in this
state from the possibility that it may some
day happen, but when we know that something is
happening every single day in this state that
effects women's constitutional rights, this
body, which two weeks ago had an opportunity
to provide the same kind of protection for
women seeking healthcare, the protection from
annoyance, the protection from harassment,
this body turned down the opportunity to do
that.
Senator Johnson, I think this bill
is the right thing to do, but there's a bigger
and better right thing to do. We should have
607
done it two weeks ago.
THE PRESIDENT: Senator Smith.
SENATOR SMITH: Thank you, Madam
President.
Would the sponsor yield for one
question?
THE PRESIDENT: Senator, do you
yield? Senator Johnson?
SENATOR JOHNSON: Yes, Madam
President.
THE PRESIDENT: Okay. Go ahead,
Senator Smith.
SENATOR SMITH: Senator, the
court officers and the court clerks both have
lobbyists and they usually send out
memorandum. I don't see a memorandum. Have
you received one from either one of these
associations?
SENATOR JOHNSON: I don't have
one in my folder, Senator, but they have been
in touch with us about this. This bill was
advanced a year ago, originally. It may be a
stale memorandum in your file somewhere.
SENATOR SMITH: Well -
SENATOR JOHNSON: But they are in
608
favor of it, yes.
SENATOR SMITH: Madam President,
on the bill.
For all our records indicate that
there is no memorandum. And if the court
officers and the court clerks and their
associations were so concerned about this
bill, I think they would have taken the time
to write a memo. And, therefore, I don't see
any need for this bill if they're not
interested.
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.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 166 are
Senators Duane, Montgomery and Smith.
Ayes 53. Nays 3.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
609
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there's a report of the
Rules Committee at the desk.
THE PRESIDENT: All right. Now
that, Senator Skelos, we have completed the
controversial reading of the calendar, the
Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills direct to third reading:
Senate Print 2833, by the Senate
Committee on Rules, an act making an
appropriation to pay Elaine Present, widow of
the late Jess J. Present, member of the Senate
from the 56th Senatorial District; and
Senate Print 2770, by the Senate
Committee on Rules, an act making an
appropriation to pay Joyce Genovesi, widow of
the late Anthony J. Genovesi, member of the
Assembly from the 39th Assembly District.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
I move to accept the report of the Rules
Committee.
610
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 Skelos.
SENATOR SKELOS: If we could take
up Calendar Number 199, Senate 2770.
THE PRESIDENT: Thank you,
Senator Skelos.
The Secretary will red.
THE SECRETARY: In relation to
Calendar 199, Senator Bruno moves to discharge
from the Committee on Rules, Assembly Bill
Number 4888 and substitute it for the
identical Third Reading Calendar 199.
SENATOR SKELOS: Madam President,
is there a message -
THE PRESIDENT: Substitution is
ordered.
Senator Skelos.
SENATOR SKELOS: Is there a
611
message at the desk?
THE PRESIDENT: Yes, Senator
Skelos there is.
SENATOR SKELOS: Move to accept
the message of appropriation.
THE PRESIDENT: All those in
favor of accepting the message of
appropriation, signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message is
accepted.
Read the last section.
The Secretary will read.
THE SECRETARY: Calendar Number
199, by the Assembly Committee on Rules,
Assembly Print 4888, an act making an
appropriation to pay Joyce Genovesi, widow of
the late Anthony J. Genovesi.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
612
(The Secretary called the roll.)
THE SECRETARY: Ayes 56.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
could we please take up Calendar Number 200,
Senate 2833.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: In relation to
Calendar Number 200, Senator Bruno moves to
discharge from the Committee on Rules,
Assembly Bill Number 5117 and substitute it
for the identical Third Reading Calendar 200.
SENATOR SKELOS: Madam President,
is there a message of approp -
THE PRESIDENT: Substitution is
ordered.
Senator Skelos.
SENATOR SKELOS: Is there a
message of appropriation at the desk?
THE PRESIDENT: Yes, Senator
Skelos, there is.
SENATOR SKELOS: Move to accept
613
the message or appropriation.
THE PRESIDENT: All those in
favor of accepting the message of
appropriation, signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message is
accepted.
The Secretary will read.
THE SECRETARY: Calendar Number
200, by the Assembly Committee on Rules,
Assembly Print 5117, an act making an
appropriation to pay Elaine Present, widow of
the late Jess J. Present.
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 56.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
614
SENATOR SKELOS: Would you please
recognize Senator Mendez.
THE PRESIDENT: Of course.
Senator Mendez.
SENATOR MENDEZ: Thank you, Madam
President, and thank you, Senator Skelos.
I was out of the chamber. I'm
asking for unanimous concent to be recorded in
the negative in Calendar Number 164.
Also, Madam President, I want to
announce that there will be an immediate
Minority Conference in Room 7 -- Room 314.
THE PRESIDENT: All right.
Without objection, Senator Mendez, you will be
recorded as voting in the negative.
And there will be an immediate
meeting of the Minority Committee in Room 314.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: Senator
Fuschillo.
SENATOR FUSCHILLO: Madam
President, on behalf of Senator Saland, please
place a sponsor star on Calendar Number 36.
THE PRESIDENT: So ordered.
615
Senator Skelos.
SENATOR SKELOS: Madam President,
on behalf of Senator Bruno, I hand up the
following committee assignment change and ask
that it be filed in the Journal.
THE PRESIDENT: Notice will be
filed in the Journal.
Senator Skelos.
SENATOR SKELOS: Is there any
other housekeeping?
THE PRESIDENT: No, there is not,
Senator.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until Tuesday, March 2nd, at 3 p.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Tuesday, March
2nd, 3 p.m.
(Whereupon, at 4:03 p.m., Senate
adjourned.)