Regular Session - April 20, 1999
SESSION
April 20, 1999
REGULAR
2142
NEW YORK STATE SENATE
THE
STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 20, 1999
3:05 p.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MEIER: 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.)
ACTING PRESIDENT MEIER: The
invocation will be given by the Reverend
Robert W. Dixon of the Mount Calvary Baptist
Church in Albany.
Reverend Dixon.
REVEREND DIXON: Let us pray.
Eternal God, we thank Thee for this
day and all of the many blessings Thou hast
bestowed upon us as Your children. We thank
You for the members of this Senate, their
families and their constituency. We pray that
as they assemble to do business of this state,
You might help them to be compassionate,
understanding and mindful of the citizens of
New York and their needs.
There are those within our state
that are in need of a sound educational
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system, along with those who are less
fortunate than we that are in need of support
for their families and an opportunity to be a
part of this society.
We pray that whatever these
Senators do, they might be mindful of what You
might desire them to do.
Bless their leadership, and bless
each member that they look forward to this
beautiful day that Thou hast given us. At the
end of the day, may they be able to say "May
the works I've done speak for me."
In His name we pray. Amen.
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, April 19th, the Senate met pursuant to
adjournment. The Journal of Friday,
April 16th, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT MEIER: Without
objection, the Journal stands approved as
read.
Senator Bruno.
SENATOR BRUNO: Mr. President,
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can we ask for an immediate meeting of the
Racing and Wagering Committee in the
conference room.
ACTING PRESIDENT MEIER: There
will be an immediate meeting of the Racing and
Wagering 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 Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
On behalf of Senator Johnson,
please remove the sponsor star from Calendar
Number 44.
ACTING PRESIDENT MEIER: So
ordered.
Senator Fuschillo.
SENATOR FUSCHILLO: Mr. President,
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on page number 36 I offer the following
amendment to Calendar Number 36, Senate Print
Number 1031B, and ask that said bill retain
its place on Third Reading Calendar.
ACTING PRESIDENT MEIER: The
amendment is received, and the bill will
retain its place on the Third Reading
Calendar.
Senator Fuschillo.
SENATOR FUSCHILLO: Mr.
President, on page number 11, I offer the
following amendments to Calendar Number 236,
Senate Print Number 2475, and ask that said
bill retain its place on Third Reading
Calendar.
ACTING PRESIDENT MEIER: The
amendment is received and the bill will retain
its place on the Third Reading Calendar.
Senator Fuschillo.
SENATOR FUSCHILLO: Mr.
President, on page number 34, I offer the
following amendments to Calendar Number 599,
Senate Print Number 4266, and ask that said
bill retain its place on Third Reading
Calendar.
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ACTING PRESIDENT MEIER: The
amendment is received and the bill will retain
its place on the Third Reading Calendar.
SENATOR BRUNO: Are there any
substitutions there at the desk?
ACTING PRESIDENT MEIER: Yes,
there are.
The Secretary will read.
SENATOR BRUNO: Can we please
take them up at this time.
THE SECRETARY: On page 16,
Senator Leibell moves to discharge from the
Committee on Civil Service and Pensions
Assembly Bill 4062 and substitute it for the
identical third reading, 343.
On page 18, Senator Marcellino
moves to discharge from the Committee on
Consumer Protection Assembly Bill Number 1367A
and substitute it for the identical third
reading, 375.
On page 23, Senator Larkin moves to
discharge from the Committee on Racing, Gaming
and Wagering Assembly Bill Number 7503 and
substitute it for the identical third reading,
452.
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On page 33, Senator Meier moves to
discharge from the Committee on
Investigations, Taxation and Government
Operations Assembly Bill 5843 and substitute
it for the identical third reading, 587.
On page 34, Senator Farley moves to
discharge from the Committee on Civil Service
and Pensions Assembly Bill 3565 and substitute
it for the identical third reading, 593.
On page 4, Senator DeFrancisco
moves to discharge from the Committee on Civil
Service and Pensions Assembly Bill Number 1937
and substitute it for the identical Senate
third reading, 601.
ACTING PRESIDENT MEIER:
Substitutions ordered.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time adopt the Resolution
Calendar, with the exception of Resolution
1061.
ACTING PRESIDENT MEIER: All in
favor of adopting the Resolution Calendar,
with the exception of Resolution 1061, please
signify by saying aye.
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(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
Resolution Calendar is adopted.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up Resolution Number
1061, ask that it be read in its entirety, and
move for its immediate adoption.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator
Maltese, Legislative Resolution Number 1061,
memorializing Governor George E. Pataki to
proclaim April 24, 1999, as "Armenian Martyrs'
Day" in New York State.
WHEREAS, It is the sense of this
Legislative Body to urge Governor George E.
Pataki to proclaim April 24, 1999, "Armenian
Martyrs' Day" in New York State; and
WHEREAS, This proclamation arises
from a sense of human decency and respect for
the Armenian people and their history;
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Towards the end of the 19th
century, the Turkish Government began to
systematically persecute their citizens of
Armenian heritage;
From 1894 to 1896, Sultan
Abdu-Hamid II ordered the massacre of 300,000
Armenians living within the boundaries of the
Turkish Empire;
In 1909, 30,000 more Armenian men,
women and children were slaughtered by Turkish
armies in the mountain village of Cilicia;
Nonetheless, by the onset of World
War I, there still remained 2,500,000
Armenians who made their homes within the
Ottoman Empire; of these, over 250,000 were
faithful soldiers who loyally fought within
the ranks of its armies in an effort to defend
their homeland;
On April 24, 1915, hundreds of
Armenian religious, political and intellectual
leaders were rounded up, exiled and eventually
murdered in secret death camps hidden in
mountainsides;
Over the course of the next six
months, the Armenian soldiers on active duty
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in the army were disarmed and placed in forced
labor battalions, whereupon many either
starved or were executed behind the fences of
these camps;
Deprived of their leaders and the
young men who could defend these helpless
communities, the remaining Armenians became an
easy target for the government raids and found
themselves at the mercy of cruel and often
barbaric persecutors;
A total of 1,500,000 Armenian men,
women and children were massacred, 500,000
more were exiled, and 500,000 were able to
escape the reign of terror and establish
themselves in new foreign lands; as a result,
today there are only 100,000 people of
Armenian heritage left residing within the
borders of modern Turkey;
The Armenian people have been
denied the right to self-determination on
their ancestral lands; they have received no
form of reparations for their tragic losses;
WHEREAS, Members of the Armenian
community honor the memory of the victims of
this genocide and emphasize that crimes
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against humanity must be condemned and never
be allowed; now, therefore, be it
RESOLVED, That this Legislative
Body pause in its deliberations to urge
Governor George E. Pataki to proclaim
April 24, 1999, Armenian Martyrs' Day in New
York State; and be it further
RESOLVED, That this Resolution is
intended to counter the tide of revisionist
history that purports that the Armenian
genocide never took place; and it be further
RESOLVED, That copies of this
Resolution, suitably engrossed, be transmitted
to Rouben Shugarian, Armenian Ambassador to
the United States, and to Movses Abelian,
Armenian Mission to the United Nations, to the
Chairman of the Board of the Armenian National
Committee, to each member of the U.S. House of
Representatives from the State of New York, to
each U.S. Senator from the State of New York
and to the President of the United States.
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR MALTESE: Mr. President,
I have the honor to introduce gentlemen who
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are with us today representing the Armenian
people.
First and foremost, the Very
Reverend Anoushavan Danielian, the Vicar
General of the Armenian Apostolic Church of
the United States.
Dr. Ara Caprielian, of the Armenian
National Committee of New York.
Mr. Henrig Boudakian, of the
Armenian National Committee; and Deacon Shant
Ardijian.
They are present with us today for
this moment of memoriam. I would ask them to
stand.
They have come here today to
commemorate the passage of this resolution,
which is a permanent part of the state's
archives, and to bring further attention on
the Armenian genocide. This commemoration of
this day is something that has been done in
prior years but has a significance completely
relevant in today's history as we read our
daily papers.
Had nations come forward on
April 24th of 1915, perhaps no further
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holocaust or genocide might have taken place.
The Armenian people cry out not for
vengeance but for justice and for
memorialization of the 1½ million Armenian
people who perished in the years from 1905 to
1924.
This day is a particularly
significant day for us here. I thank and
welcome, on behalf of my colleagues in the
Senate, Father Danielian and his
representatives and ask for passage of the
resolution.
ACTING PRESIDENT MEIER: Senator
Marchi.
SENATOR MARCHI: Mr. President, I
want to congratulate Senator Maltese on this
initiative. It couldn't be more timely. And
it couldn't have more significance, not only
in terms of their presence here today, but of
what it signifies and exemplifies to the
people of this world as we experience another
episode of ethnic cleansing over in Yugoslavia
of the Kosovars, this same mindless
destruction of people.
The Papazian Pharmacy, the
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proprietor of which is a good friend of mine,
his grandfather and his grandmother managed to
be one of those half million that did get
away. But millions of them were massacred,
massacred. It strikes resonance with what is
happening over there today. And yet we hear
from people occasionally, "Well, it doesn't
affect us." There is no real personal
interest.
But when anyone is harmed and when
anyone suffers that kind of injustice and we
can document it as dramatically as these
gentlemen can, in a most exact way, it makes a
big difference. And we can't be indifferent
to it. It ought to teach us a very valuable
lesson, that when those occasions do arise and
we can identify it with precision, that we
have a moral obligation there.
I think all of us here can identify
with you, freshened as we are -- we ought to
be reinforced by the suffering that you've
endured. Yours is a very talented people.
Some of our most prominent people in American
public life are descendents of those who came
and joined us, in academia and in other
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enterprises.
But I'm -- I certainly feel that
this is a very appropriate occasion to have
this resolution before us. And know that you
leave with the sentiments and the support of
the people in this chamber and the people that
we represent, that we can identify with your
pain, with your difficulties, and those that
your forebears endured.
And earnestly hope and pray and
that we all should support, with our efforts,
the avoidance of a repetition of that sorry
chapter in history which manifested itself
again in so many different ways, especially
during World War II.
So again, Senator Maltese, you led
the way for me, because you asked me if I
would want to join you in the resolution. I'm
very happy to do it, very happy to profess to
you my sympathy for what has happened and our
pleasure and honor that we feel for you, and
we feel that there is a moral commitment that
goes with it.
ACTING PRESIDENT MEIER: Senator
Lachman.
2157
SENATOR LACHMAN: Yes,
Mr. President.
I also want to commend Senator
Maltese and echo the sentiments of Senator
Maltese and Senator Marchi. This resolution
is an excellent resolution. It is a
nonpartisan resolution, and I hope it will be
opened up to every member of the Senate to
participate.
Very briefly, when this ethnic
cleansing took place in the first generation
of the 20th century, there was no television,
there wasn't even any radio, and newspaper
reporters had great difficulty in searching
out and finding what took place. It is only
through historical analysis were we able to
understand the dimensions of the great tragedy
that took place to the Armenian people.
And I think it is indicative that
if we had opened our eyes at that time,
perhaps other tragedies would not have
occurred.
So I would like to go on this
resolution as a cosponsor. I think it is
especially, as Senator Marchi and Senator
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Maltese have said, most important because of
what is taking place today in the world. And
this is one of the most important nonpartisan
resolutions that this chamber can adopt.
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR MALTESE: Mr. President,
in view of the remarks by my good colleagues
Senator Lachman and Senator Marchi, and the
wishes of many other members that have spoken
to me, I would ask that it be opened up to all
members of the Senate.
ACTING PRESIDENT MEIER: In
keeping with our usual custom, the resolution
is open to all members. Those who wish not to
be on the resolution should notify the desk.
Sorry, Senator Dollinger.
SENATOR DOLLINGER: Thank you
very much, Mr. President.
I commend Senator Maltese, Senator
Marchi, and Senator Lachman for their remarks,
and to our friends from Armenia.
The 20th century will be known for
many things. An era of tremendous technology.
The brilliance of not only America's spirit
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but the spirit of the entire world, a world of
technological advances we could never have
imagined.
What is so disappointing in
remembering the massacre is that at the dawn
of this century, the intolerance that one man
has felt for another was a part of our
culture, a part of our planet. And yet here
we are at the end of this wonderful
technological century, a century in which
we've reached for the stars and actually
gotten there, that we still have to deal with
the issues tucked in the human heart of hate
and intolerance.
And the unfortunate reminder of
your experience is one that we should carry
with us into the next century, when again
we'll have that tremendous opportunity to
perhaps reach the fullness of the human heart
and still have to fight the issues of
intolerance and hatred which have led not only
to Armenia but to the killing fields of
Cambodia, to the slaughter of the Kosovars and
the slaughter of the Jews in World War II and
all the other ignominies of this century.
2160
It's one of the great conundrums,
Mr. President, that we can't resolve today and
may never resolve, that we can reach so high
with our minds and produce such wonderful
machines and such tremendous achievements and
at the same time we can't eradicate that
depravity in the hearts of some that leads
them to mindless slaughter.
Your history is a reminder to us of
the challenge of the future.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time have the noncontroversial
reading of the calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
2161
calendar.
THE SECRETARY: Calendar Number
182, by Senator Volker, Senate Print 1912, an
act to enact the Criminal Procedure Law Reform
Act of 1999.
SENATOR DOLLINGER: Lay the bill
aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
231, by Senator Libous, Senate Print 2088, an
act to amend the Real Property Tax Law, in
relation to including.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
243, by Senator Spano, Senate Print 3315, an
2162
act to amend the Workers' Compensation Law, in
relation to premium payment plans.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr. President,
I have no objection to this bill. I just rise
because I think when the issue of the State
Insurance Fund comes up, I would strongly
recommend that at some future time in this
chamber we look at the issue of privatizing
the State Insurance Fund, get it off the
books, look at it as unfortunately a system
that was once utilized as an insurer of last
resort but has now become a
government-sponsored competitor of all kinds
of insurance companies that are in the
business of selling workers' compensation
insurance.
2163
I hope at some point we get to that
point. I'll vote in favor of that bill. But
I hope we look to that idea at some time in
the future and we won't have to influence or
pass bills affecting the State Insurance Fund
because it will be a separately owned,
privatized business.
ACTING PRESIDENT MEIER: Senator
Dollinger will be recorded in the affirmative.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
332, by Senator Bonacic, Senate Print 3661, an
act to amend the Private Finance --
SENATOR BRUNO: Lay it aside for
the day.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day, please.
THE SECRETARY: Calendar Number
395, by Senator Skelos, Senate Print 969, an
act to amend the Correction Law and the County
Law, in relation to maintenance of prisoners.
2164
SENATOR DOLLINGER: Lay the bill
aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
454, by Senator Wright, Senate Print 3404, an
act to amend the Vehicle and Traffic Law, in
relation to the suspension.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you very
much.
I'm rising to vote in the negative
on this legislation. I'm very concerned that
removing the registration from a family-owned
car would impact a person that actually hadn't
done something wrong -- for instance, the
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spouse in a family -- and that this penalty is
too harsh.
And while I understand you could
appeal to the Commissioner to get the
registration back, that's a long and
cost-intensive process.
And I basically just believe that
it's too harsh on the family in its entirety
to have the whole family punished for the
misdeed of one member of the family which
would cause the registration to be pulled.
And therefore, I'm voting no.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the negative.
Announce the results.
THE SECRETARY: Ayes, 52; nays,
2. Senators Duane and Schneiderman recorded
in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
455, by Senator McGee, Senate Print 3874, an
act to amend the Alcoholic Beverage Control
Law --
SENATOR BRUNO: Lay it aside for
2166
the day, please.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
THE SECRETARY: Calendar Number
479, by Senator Maltese, Senate Print 794, an
act to amend the Election Law, in relation to
political committees.
SENATOR DOLLINGER: Lay the bill
aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
497, by Senator Balboni, Senate Print 4014, an
act to amend the Environmental Conservation
Law.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the 30th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
2167
THE SECRETARY: Calendar Number
517, by Senator LaValle, Senate Print 1197, an
act to amend the Executive Law, in relation to
population requirements.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
521, by Senator Stafford, Senate Print 3647,
an act to amend the Executive Law, in relation
to reports by registered charitable
organizations.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect in 90 days.
ACTING PRESIDENT MEIER: Call the
roll.
2168
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53; nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
522, by Senator Rath, Senate Print 3691, an
act to amend the Executive Law, in relation to
statewide computerized registry.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 30th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
535, by Senator Volker, Senate Print 111A, an
act to amend the Criminal Procedure Law.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
2169
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53; nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
556, by Senator Stavisky, Senate Print 3289,
an act to amend the Penal Law in relation to
increasing.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 7. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno, that completes the
2170
reading of the noncontroversial calendar.
SENATOR BRUNO: Thank you, Mr.
President. Can we at this time take up the
controversial calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
182, by Senator Volker, Senate Print 1912, an
act to enact the Criminal Procedure Law Reform
Act of 1999.
SENATOR DOLLINGER: Explanation,
please, Madam President -- Mr. President.
ACTING PRESIDENT MEIER: Put your
glasses on, Senator Dollinger.
Senator Volker, an explanation has
been requested of Calendar Number 182 by the
very nearsighted Senator Dollinger.
SENATOR VOLKER: Mr. President,
this is a bill that -- which is known as the
Criminal Procedure Reform Act of 1999. It
passed in 1998 as the Criminal Reform
Procedure Act of '98, '97, '96.
Just so that everybody knows, in
'96 it passed by a vote of 47 to 10. In '97,
2171
49 to 10. And then last year, we retreated a
little bit and it passed by a vote of 47 to
14.
You know, whenever I look at this
legislation, so that you understand it -- and
I think for lawyers it is -- it is, I think,
more understandable to us than it would be to
the nonlawyers. It always, when I look at
this, I think of the law, when I went to law
school. And some of the people who were
defense-oriented at the time said, "Well, you
know, the law's a game. It's a game where the
prosecution plays one hand and then the
defense covers another hand and then the
judges are sort of the referees. And then
they come up with -- make sure that the rules
of the game are played."
Fortunately, in this state, the
rules of the game have been pretty well set
out by this Legislature and by the
Constitution -- the national Constitution, the
U.S. Constitution, the state Constitution.
Unfortunately, for about the last
ten years, the Court of Appeals of this state
has been rewriting the rules as the cases
2172
proceed. So that a number of cases have
occurred where it simply appears that because
of what could be termed untoward situations
that do not directly affect the question of
whether the person is guilty or innocent, have
occurred that have allowed some very
outrageous results to occur.
And as a staffer said to me last
year, he pointed out, and he pointed out
rightly that in one of the cases that involved
an arrest in the street, that there was some
genuine question that maybe you're unaware of
when you read the case as it is reported,
because there was something in that case that
was different from the way it was reported and
may have impacted on the judges.
The only problem with that theory
is, the case then became a standard for future
cases. And people who were clearly guilty of
rather serious crimes were then able to escape
justice because that case became the standard.
There is a series of changes in
this bill that relate to the way in which
prosecutions move forward. This is the, I
think, rather famous -- many people, I think,
2173
know about the famous Ranghelle case, the
O'Doherty situation.
It seems to me, though, that the
change -- that in one way this bill would
change, which is -- may be the most
outrageous, relates to the right to be present
at any part of a trial. Which means, you
know, the jury selection and all the rest of
those sort of things.
One of the cases that's a standard
for this in effect threw a case out because
the defendant wasn't present in the robing
room when it was testified to at the appeal
the jurors discussed something that had to do
with the case which had absolutely nothing to
do with the conviction. But because in the
robing room the defendant wasn't present, the
Court of Appeals threw the conviction -- I
believe it was for robbery -- out.
In another case where the defendant
was actually present but walked out of the
room -- to go to the men's room, if I'm not
mistaken -- his attorney was present when
there was a discussion. After the conviction,
the attorney moved to have the case thrown out
2174
because the defendant wasn't present, actually
present at the time that there was some sort
of discussion which admittedly, apparently, by
the defense attorney probably had no impact on
the case at all, since the two jurors were
dismissed and weren't even part of the final
case.
I mention that because those are
the kind of things that have occurred here
that have created, I think, enormous injustice
in our system.
One other reform here that is not
often talked about is the so-called Moquin
case. And I hate to be quoting cases, but
this is a case where the judge threw out a
second-degree murder conviction -- or not
conviction, a second-degree murder indictment
case and left some minor charges on the case
available. The district attorney immediately
appealed and got the -- within a few days, got
the dismissal restored to the calendar because
the court looked at what had been done and
said that was not correct.
The smart defense attorney, in the
meantime, runs into court, pleads guilty to
2175
the minor offenses, and gets sentenced to a
nonjail term. And because of the issues of
double jeopardy and the issues, the way the
court -- the way the law stands, could not
even move the much more serious matter,
obviously, of murder. And the fellow was able
to escape any prosecution on the issue of
murder.
There's several other parts of this
relating to O'Doherty. O'Doherty stands for
the issue that the prosecution must notify the
defense within 15 days of arraignment of its
intent to offer any statements.
Well, that should stay. The only
problem is, several cases have been thrown out
because the prosecution later found out that
there were statements that they weren't aware
of, and when the -- in fact, the defendant
even allowed the -- agreed to the statements
and agreed to the timing.
The appeals court threw them out on
the basis of the fact that they weren't
produced or they weren't notified 15 days
prior to the trial, even though the district
attorney wasn't even aware that they were
2176
available at that time.
And there was no evidence, by the
way, that that delay caused undue problems for
the defendant; that is, that it had anything
to do with his ultimate conviction for the
crime involved.
So a number of these provisions, by
the way, it has been apparently admitted by
several judges in the Court of Appeals, does
something kind of fascinating, and that is
says that the New York Constitution, which is
identical in virtually every case to the
federal Constitution in its wording, has
stronger provisions in it than the federal
Constitution has, and in fact does things
which no other state in the union do as far as
changes in the criminal law.
So basically, that's an outline. I
mean, there's a series of provisions here that
this bill provides. But I think in reality --
and I am not one of those people who believes
that we should unduly burden defendants,
because I think we have to give them every
opportunity to make their case. But I really
think that the game theory of criminal justice
2177
has got to cease and that we've got to bring
some sort of sanity back into the criminal
justice system.
ACTING PRESIDENT MEIER: Senator
Waldon.
SENATOR WALDON: Thank you very
much, Mr. President. Would the gentleman
yield to a question or two?
ACTING PRESIDENT MEIER: Senator
Volker, do you yield?
SENATOR VOLKER: Absolutely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR WALDON: Senator Volker,
when you began your explanation, most
regrettably I was out of the room. So I just
want to make sure that I'm on the same page
with you.
The only change in what we're
considering today and what we considered last
year was the number switch?
SENATOR VOLKER: Exactly.
SENATOR WALDON: And so basically
this is the same bill as we're revisiting from
last year?
2178
SENATOR VOLKER: Essentially
there's -- I don't -- there may have been --
there's no substantive changes. If there's
any changes, it would be if the law -- if
there's some text changes or something. But
there is no substantive changes. This is the
same, identical bill as the bill that was
passed here in '98 -- essentially in '97 and
'96 -- yes.
SENATOR WALDON: It's a
perennial.
SENATOR VOLKER: Yeah.
SENATOR WALDON: If I may
continue, Mr. President, would the gentleman
continue to yield?
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT MEIER: He
yields.
SENATOR WALDON: Thank you,
Mr. President.
Senator, I'm intrigued by the
ability of police officers to testify to
identifications which historically, under our
2179
system, have only been made by persons who are
true witnesses to the accident.
Can you tell us how the police
officer substantiates his continuing awareness
of the identification? Is it by memo-book
entries, is it by the UF40 forms, or just by
his personal recollection?
SENATOR VOLKER: Well, the way --
Senator, I think what you're talking about is
that there have been a number of cases that
have been thrown out because the witness, and
in several cases the police officer, was
unable to identify the person at the trial
because that person had changed their
appearance or had done something that -- or
the lapse of time, in certain cases.
But in every case, the -- there had
to be a witness statement specifically
identifying that person or that person had to
have been previously identified.
In other words, there's no way that
you could just say, "Well, that's the person,
because I said it was the person before." You
either had a lineup or something of that
nature.
2180
I think, Senator, you realize -- I
know you do -- that -- and I dealt with
defendants myself who deliberately changed
their appearance or attempted to change their
appearance, sometimes to escape prosecution
but then, after prosecution, sometimes to
escape identification.
And the problem then would become
as to whether somebody who had already
identified them would be in a position to --
you know, the defense attorney then attempts
to say, "Is this the guy?" And the person, if
he or she is truthful, may have to say "It
doesn't really look like the fellow that I
identified, but if that's who that is, I have
previously identified him as the person. And
the fact that he's changed his appearance and
so forth, that's still -- I believe he's the
person, and here's the evidence to show that I
had previously identified him."
That's true, and that's what this
bill would provide, even though what's
happened is that a number of these cases have
been thrown out because the witness could not
later, at the trial, then say that was exactly
2181
the same person because of the change of
identity.
SENATOR WALDON: Mr. President,
would the gentleman continue to yield?
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR WALDON: I apologize,
Senator Volker. I'm still a bit confused --
not unusual for me, but still a bit.
I'm trying to understand
specifically when and how the police officer,
if that is the case, can step in and replace
the actual witness to the event and say "Yes,
I heard the witness say he's the one." If you
can edify me in that regard, I can go on to
the next point.
SENATOR VOLKER: The problem with
that is you're talking about the potential for
hearsay. Even under this bill, if the only
identification to be used, I believe, was the
police officer saying that that witness said
verbally "Yes, that is the person who
2182
committed the crime," and there's no written
statement and no other potential
identification, it would be very, very
difficult to maintain -- in fact, virtually
impossible, I think, even under this bill, to
maintain a conviction.
Because you know the way lineups
work. The person identifies someone in the
lineup, and there's a procedure that's
followed to specifically identify that person.
Traditionally, there's a statement taken that
that person was identified, and the
description.
The problem that has occurred is
where the person then later on, after making
that identification, then cannot identify that
person at the trial -- or in some cases I
suppose it would be at pretrial -- as the same
person that they identified in the lineup,
because it may be that they changed their
appearance, it may be a couple of years later.
There's all sorts of things.
So I think -- at least that's my
opinion -- I think what you're saying is -- is
an evidentiary issue. But if it's just the
2183
police officer saying that "This person told
me that's him," I don't think that that's
probably enough to -- for instance, under this
bill, it would be an evidentiary issue anyway,
because the judge would probably throw it out.
But I think that what the case that
you're talking about represented was really
something, at least in my recollection, is
something more, where there was an absolute
identification but the person later can't
identify that person because they changed
their appearance or whatever.
SENATOR WALDON: Would the
gentleman yield again, Mr. President?
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Sure, yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR WALDON: Senator, this is
the Criminal Procedure Law Reform Act of 1999.
SENATOR VOLKER: Mm-hmm. Yes.
SENATOR WALDON: "Reform," as I
understand it, normally indicates that you're
2184
really reforming something, you're changing
it, making great change; all parties
participating should have some benefit inured
to themselves.
From what I see here, this is very
one-sided. This is prosecutorial-friendly.
Should not there have been some balance, if
we're going to have a reform act in regard to
our criminal procedure laws?
SENATOR VOLKER: Senator, I think
the thing -- I think the problem here relates
to this. We're not -- we're changing the law
only in relation to how the Court of Appeals
has interpreted the law.
It is my contention, and I think
the contention of the Governor, that the Court
of Appeals has reinterpreted the law that this
Legislature passed.
Just as, for instance, several
years ago we were late in one of our budgets
because the Court of Appeals passed -- the
court passed a case five days before we were
ready to do the budget that -- called the
Bankers Decision. It threw us into chaos.
And we'd been doing budgets for a hundred
2185
years the same way, and the Court of Appeals
said, "No, that's the wrong way, and you've
got to do it altogether different." We're
still struggling with that, because it's
created havoc. And this is another year where
it's created havoc for us.
I think what this -- what the
reform is -- and "reform" may be bad language,
and I'll be the first to admit it to you.
What we're trying to do is bring some sanity
back into the criminal justice system.
We're not saying, by the way, that
if something is wrong with the prosecutor's
case, if they have made an error that impacts
on the defendant and actually would allow a
conviction that is unjust, that should -- that
will continue -- the Court of Appeals will
continue to be able to throw that case out.
But if the defects that are used
have nothing to do with the actual conviction
and in fact do form over substance, then what
we're trying to do, I think, in this
legislation is say this only makes sense.
What this does is to get the law
back to what it's supposed to be. And that
2186
is, a trial is a case where you make your
proof, the defense brings in its side of the
case, and a jury gets to decide based on real
evidence, not on some questionable decision
that somebody, for instance, in a robing room
didn't stand there and listen to two jurors
who were dismissed anyway.
SENATOR WALDON: Thank you,
Senator.
If I may, Mr. President, on the
bill.
ACTING PRESIDENT MEIER: Senator
Waldon on the bill.
SENATOR WALDON: When we look at
this proposal from Senator Volker on behalf of
the Governor, there's no normal nexus to what
happened with Amadou Achmed Diallo. But when
we look at the social indications of that act
in the Bronx and a bill of this nature, they
both are heavy-handed.
Obviously, when 41 shots are fired
at someone who's unarmed, even if it's on a
dark street in the Bronx, it is heavy-handed.
When 19 of those shots hit the person, killing
him, I'm sure, instantly, it's heavy-handed.
2187
I think putting the law down on the
side of the prosecutor so overwhelmingly as
this would accomplish is heavy-handed. I
think the signal that it sends to the
community at large is that those who are in
charge of the criminal justice system will be
allowed to be even more efficient at
establishing what they're doing now, which is
the arrest, prosecution, and the incarceration
of people and the explosion of our prison
population in upstate New York.
I don't think we should support
this. I don't think there's a need at this
moment in our history to be so heavy-handed.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President -- or Mr. President, again, would
Senator Volker yield to one other question?
ACTING PRESIDENT MEIER: Senator
Volker, do you yield to a question from
Senator Dollinger?
SENATOR VOLKER: Absolutely.
SENATOR DOLLINGER: Senator, are
2188
you familiar --
ACTING PRESIDENT MEIER: Wait,
wait, Senator Dollinger.
Senator Volker, do you yield?
SENATOR VOLKER: Yes, I do. I
do, I do.
ACTING PRESIDENT MEIER: Senator
Volker yields, Senator Dollinger.
SENATOR VOLKER: I do, I do, I
do, I do, yes. Go ahead.
SENATOR DOLLINGER: Senator, the
Ranghelle rule, could you explain to me how
that would affect it? Are you familiar with
the circumstances of the Betty Tyson case in
Rochester?
SENATOR VOLKER: Betty Tyson. I
guess -- I guess I'm not familiar with the
Betty Tyson case, no.
SENATOR DOLLINGER: Through you,
Mr. President.
Betty Tyson is a woman who was just
recently freed from prison after being in jail
for 28 years because she had been convicted of
a murder. And the reason why she was freed
from prison is because, after 28 years, a
2189
lawyer and an investigative reporter figured
out that there was a statement that the
prosecution had available from one of her
accusers in a late-night murder -- as I'm sure
Senator Volker can appreciate, one of those
tough cases: a late-night murder, allegations
of prostitution, a black woman charged with
murder, murdering a white Kodak executive, a
black man accused in 1972 of being her
accomplice to that.
The statement that was withheld was
a statement of identification of witnesses and
others who were at the trial.
My only question is, Mr.
President -- I've voted in favor of this bill
in the past. But the way I read what happens
here is that Betty Tyson would not go free if
this rule were in place. And I'm just trying
to find out whether that's the case, if the
change that you're seeking, would it affect
the decision that set her free 28 years later.
SENATOR VOLKER: If what I
understand about the Tyson case is correct,
and that that statement could have had an
impact on the trial itself had it been entered
2190
into evidence, and the question was was it
known at the time that that statement existed,
then I don't believe that this change would
have any impact, because it could have had a
substantial impact on the trial itself.
And therefore, nothing in this
reform would change that, because it would
still stand as a potential piece of evidence
that could have changed the course of the
trial.
And therefore, if it was
withheld -- and especially, I guess if it was
withheld with knowledge -- then that would be
something that would still be -- even if this
bill passed would still be, it seems to me,
the basis for a new trial.
SENATOR DOLLINGER: Thank you,
Mr. President.
And thank you, Senator Volker, for
a candid explanation.
I have voted for this bill in the
past. I'm not going to vote for it this year
because of the potential in the Ranghelle
decision and the potential that it would
unfortunately lead to, I think, something that
2191
Senator Volker has discussed, which is the
potential for prosecutorial misconduct and for
prosecutorial nondisclosure of information.
The Betty Tyson case involves a
woman who spent 28 years in the state prison
system. She was the longest-held prisoner in
the state of New York. She was convicted in a
very difficult case, in a very highly
publicized case, in the kind of case that
creates tremendous pressure on prosecutors to
come up with a conviction. And what was not
given to her defense counsel was a statement
from a witness that would have questioned the
identification of Betty Tyson at the scene.
And what happened in that case is
that she was convicted. Her name is nowhere
included in the cases that Senator Volker is
trying to overrule. Her name is not in there
because she never had a chance to contest
that, because she didn't know.
And while some may look at all the
cases that are cited here as instances of
people who got away with something because of
technicalities, I look at them and see people
for whom the government either didn't comply
2192
with the law or, in a stretched interpretation
of our Constitutional rights, the government
said -- the court said that the government had
exceeded their power.
Today Betty Tyson is a free woman.
But she can never, ever be given back the 28
years that she spent in prison. John Duval,
who was also convicted of the same crime, is
also a free man. He was another man, a black
man charged with the murder of a white man in
1972.
And even as I say those words, it
would be tempting to look back and say that
was another time, that was a long time ago.
You're right, it was a long time ago. It was
a long time to be in prison falsely convicted
or unlawfully convicted of a crime.
And I would just suggest,
Mr. President, I appreciate what Senator
Volker's tried to do. I voted for this in the
past. There's portions of it that I agree
with.
But today, as I stand here as a
representative of a community that has just
seen the impact of a failure to disclose
2193
information in a heavily contested trial, in
an emotional trial, in a trial with overtones
of race and overtones of fairness attached,
the great danger is that someone will say,
"This little slip of paper with this little
statement from a witness, we really don't have
to disclose it. Wouldn't it be much better to
get a conviction, even if it's not necessarily
totally fair? Wouldn't it be better to get a
conviction so the community would feel better
about itself, but yet justice and fairness
won't be done?"
I stand here today perhaps with my
eyes a little bit -- looking at this a little
bit different. I can't forget that two people
spent the better part of more than half a
century in jail, wrongfully convicted of a
crime. They'll never make the reports from
the New York Court of Appeals, but a great
injustice was done to them.
And while, Senator Volker, I've
voted for it in the past, and I agree with
parts of it, I can't agree with that part of
it today. The danger, the temptation is just
too overwhelming.
2194
The per se rule does have a reason.
It's there designed to protect the
constitutional rights of everyone. I daresay
if anybody in this chamber were charged or
indicted with a felony because we had taken a
bribe or committed other crimes and the
prosecutor said, "Well, we've got a statement
in our portfolio of statements which questions
whether the witness who provides the critical
indicting testimony, whether they actually
recognize that person," I daresay there isn't
a person in this house who wouldn't say "I'm
entitled to that statement, I want it, whether
or not -- and I don't want someone else after
the fact, 28 years later, to decide whether it
was relevant at the time of trial." You'd
want it then.
The per se rule in Ranghelle does
serve a legitimate purpose in discouraging
prosecutors, who do a great job, from that
last little tiny temptation to just sacrifice
justice in the name of expediency.
The message that we send here today
is that that should not happen. It should
never have happened to Betty Tyson or John
2195
Duval.
ACTING PRESIDENT MEIER: Senator
Volker.
SENATOR VOLKER: Let me just
repeat once more, this bill would
categorically not change the per se rule in
terms of what you just described.
And the reason is that -- and it
has happened, in the case you're talking
about. The evidence did not totally say that
the person was not guilty. But what it said
is that there was a statement that, if
included, as it should have been, in the
prosecution -- or the defense, really -- then
that could have impacted on the identification
in the case. Therefore, it could not possibly
be considered harmless error and therefore was
considered to be something that should have
been included and therefore was the basis for
the person to be released from jail.
This bill that reforms the issue of
knee-jerk-reaction dismissals would not impact
that, because clearly such a statement would
be material and could impact and would not be
considered to be harmless error. So
2196
therefore, I cannot possibly see how this
reform would have any impact on what you're
talking about.
In fact, one of the arguments here
is that because of the game theory and the
theory that so many cases are being tossed out
today for somewhat spurious means, there is a
tendency to think that possibly you shouldn't
be as careful, because the courts sometimes,
and individuals and defense attorneys, are
just looking for something to use even if the
person is totally guilty.
Now, I'm not saying I agree with
that theory. But I think the frustration that
is shown by some people in the system, both
victims and otherwise, I think we should be
very careful of that. The system of justice
should be even-handed.
We should give the defendant every
possible opportunity, but not an opportunity
to find the person not guilty who is guilty
simply because of some improper -- or defect
that has no impact on the case itself. If it
is not harmless error, then, whether it's
minor or not, it should be used.
2197
And in my opinion, the case that
you talk about, if it's what I understand,
this bill would have absolutely no impact on
that decision, and the same decision would be
made under this legislation as the court made
a decision in that case already.
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Thank you,
Mr. President.
I stand in support of this measure,
despite the warnings and concerns of my
colleagues. I agree with Senator Volker that
the provisions of this bill do not -- do not
threaten the search for the truth here.
Indeed, this bill would just allow a harmless
error analysis on the Ranghelle rule, whereas
right now we have a per se reversal on the
Ranghelle rule.
And, Mr. President, what this means
in practical terms is that if a police officer
took down some information from a witness, a
phone number on the back of a matchbook, and
then later transferred that information to a
police report and that matchbook were not
2198
produced at trial, that's a per se reversal
under the Ranghelle rule. Despite the fact
that it's a duplicative equivalent of what was
in the police report, that is a per se
reversal under the Ranghelle rule.
That is outrageous. That is not
the search for truth. And therefore, I agree
that those types of situations should be given
a harmless error analysis. Much as if there
were evidence to suggest the innocence of a
defendant is given a harmless error analysis,
so should the requirement to produce documents
be given that same kind of analysis.
So I think the change that the
Senator's bill advocates is a good change,
it's a change that does not affect the search
for truth. In fact, it makes the whole system
more relevant to the search for truth.
I believe also the other
provisions, on the appeals of preclusion
orders, on the ability of police officers in
very narrow situations to testify about
identifications, again, all do not affect the
search for truth, but indeed, I believe, allow
the court and the evidence to better reflect
2199
the truth so that the jury can decide based on
the best available evidence.
So, Senator, I support your
legislation and I look forward to its passage.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Announce
the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 182 are
Senators Connor, Dollinger, Duane, Markowitz,
Mendez, Montgomery, Sampson, Santiago,
Schneiderman, Seabrook, Smith, Stavisky, and
Waldon. Ayes, 45; nays, 13.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
395, by Senator Skelos, Senate Print 969, an
act to amend the Correction Law and the County
Law, in relation to maintenance of prisoners.
2200
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
this bill amends the Correction Law and also
the County Law to provide that inmates who are
found to be nonindigent would be responsible
for, during the time of their imprisonment,
certain expenses that would be incumbent upon
the county or the city jail normally to pay.
And while this is a good idea --
and in the past the sponsor, Senator Skelos,
has mentioned the name Joey Buttafuoco as
somebody who was incarcerated or imprisoned
and certainly could have paid his expenses
while he was there, because he owned a
business -- many of my colleagues and I wonder
how many, what percentage of inmates are
actually in a position to pay for their own
medical expenses.
And we wonder whether or not this
would inure to the benefit of the municipality
or whether it would cost more money to find
out who's indigent and who's not indigent. We
think there probably should be some research
to make that determination.
2201
Although it's a good idea, I'm
going to vote in the negative, as I have in
the past.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 7. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 395 are
Senators Connor, Duane, Markowitz, Mendez,
Montgomery, Paterson, Sampson, Santiago,
Schneiderman, Seabrook, Smith, Stavisky, and
Waldon. Ayes, 45; nays, 13.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
479, by Senator Maltese, Senate Print 794, an
act to amend the Election Law, in relation to
political committees.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MEIER: Senator
Maltese, an explanation has been requested of
2202
Calendar Number 479 by Senator Dollinger.
SENATOR MALTESE: Mr. President,
this bill reduces the number of filings
required by certain political committees which
do not make any expenditures during a
campaign.
A summary of the provisions
provides that a political committee which
makes no expenditures to aid or take part in
the election or defeat of a candidate, other
than in the form of contributions, need not
file after the July 15th report, other than in
a sworn statement by the treasurer of the
committee that no expenditures will be made on
behalf of any candidate in that calendar year
except those made prior to the submission of
this -- of the report that the statement is
made with.
There are three filings that would
be thus eliminated: the 32-day pregeneral
filing, the 11-day pregeneral campaign filing,
and the 27-day postgeneral filing. If there
are, in fact, expenditures made of any type,
they would be picked up in the next January
filing.
2203
This is at the request of the State
Board of Elections, to eliminate the burden of
reports that would be not necessary,
superfluous, and contain nothing other than
"no contributions were made."
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: Mr. President,
would the sponsor yield to a few questions?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: Senator
Maltese --
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Senator Maltese,
my understanding is that the purported
intention of the legislation is to reduce the
amount of paperwork that comes into the Board
of Elections. Is that the purpose?
SENATOR MALTESE: Mr. President,
that's correct.
SENATOR HEVESI: Through you,
Mr. President.
ACTING PRESIDENT MEIER: Senator
2204
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR HEVESI: Senator, it's my
understanding that on July 15th of this year,
pursuant to a chapter that was passed in 1998,
that the Board of Elections will require --
not provide an option, but require every
political committee to file electronically,
thereby obviating the need for any paper
submissions.
So in light of that, why is this
legislation necessary?
SENATOR MALTESE: Mr. President,
through you.
The fact that you have an
electronic filing doesn't mean that there are,
in fact -- that there aren't, in fact, checks
that have to be made or that the Board of
Elections simply takes the electronic filing
and it disappears into limbo with no
expenditure made.
There has to be somebody at the
other end of the electronic filing, and there
2205
has to be some record made by the Board that
in fact the filing was made. And if a filing
is not made or missed, then the steps have to
be taken to bring the -- bring an order which
would fine the miscreant for his omission.
SENATOR HEVESI: Mr. President,
through you.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Thank you.
Senator, are you suggesting that
the Board of Elections is required to, upon
receiving an electronic filing, print it out?
SENATOR MALTESE: Mr. President,
I'm not suggesting that they print it out. I
believe that in response to queries, questions
or requests, that they are prepared to print
it out.
And that even any type of filing,
there can't be a -- an electronic report
that's simply received by a computer at the
other end and simply lists that they have, in
2206
fact, the report and then no use is made of it
in any shape, manner or form.
If nothing else -- aside from the
use that I indicated, that there has to be
some check made as to whether or not a report
is filed to determine whether the committee,
the political committee, is in violation of
the law -- these records have to be available,
even if electronically, for requests as to --
Freedom of Information requests.
SENATOR HEVESI: Thank you,
Mr. President.
If the sponsor will yield to two
other brief questions.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR HEVESI: Senator, just
for clarity, under this legislation transfers
to other committees are permissible and could
be made without triggering the requirement
that a report be filed; is that correct?
SENATOR MALTESE: Mr. President,
2207
I don't follow.
The transfer cannot be made. Any
expenditure made on behalf of a candidate or
to defeat a candidate would come under this
legislation.
This legislation does not apply, as
it's indicated, to party committees. It
applies to what -- there's no definition of
PACs. And this would be applying to PACs who
have no other expenditures except making
contributions to candidates or to defeat --
contributions to candidates.
SENATOR HEVESI: Thank you.
One final question, Mr. President,
if the sponsor would yield.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Senator, what
would be the penalty if my treasurer filed a
statement, pursuant to this legislation,
stating that no expenditures would be made
from my committee for the remainder of the
2208
calendar year and then expenditures were in
fact made in the remainder of the calendar
year?
SENATOR MALTESE: Mr. President,
certainly it would be a sworn statement.
But I believe if that would happen,
he would then be required -- or he or she
would then be required to file the necessary
reports, depending on the time the expenditure
was made. So if it was during an election
cycle and it was past the first two, he would
then have to make the postgeneral report, to
comply with the law.
SENATOR HEVESI: Without penalty.
SENATOR MALTESE: Without
penalty, as long as that expenditure was made
prior to the timing for the report. Sure.
SENATOR HEVESI: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Hevesi on the bill.
SENATOR HEVESI: Mr. President,
this legislation, with all respect to my
Senate colleague, whom I have the greatest
respect for, is a flawed piece of legislation
2209
in any variety of ways. Let me enumerate them
for you.
First, my understanding is that
expenditures and transfers are separately
defined notions within the Election Law as
they currently exist. And since this piece of
legislation only refers to expenditures, that
transfers, as a result, are not excluded.
And what does that mean? It means
that under this legislation, if you were to
file -- your treasurer was to file this
statement saying that you're not going to make
any other expenditures in the calendar year,
it means, by definition, by default, that what
is permissible are contributions coming into
your committee and the ability to transfer to
other committees. And that opens up a whole
series of problems, including the following.
Number one, I could have several
committees for myself. And I could have one
committee file that statement saying we're not
going to make any other additional
expenditures. My other committee is an active
committee, and that committee is both taking
in and expending money. The committee that I
2210
am taking in money on does not file after
July 15th, according to the legislation that's
in front of us.
But what am I doing? I am
incurring liabilities. I am raising funds
into that committee that the voters, who are
being asked to pass judgment in this election,
have no idea where it's coming from. And I
am, as a result of the money coming into that
committee, probably going out and incurring
liabilities with vendors in my campaign that I
could do two things from.
One is transfer at some point to
another committee, my other committee, to then
make expenditures. Perfectly permissible, and
the epitome of a loophole, under this
legislation.
Or, number two, is after the
election, the committee that I filed the
statement on saying I'm not going to make
expenditures, if I went ahead and made
expenditures, I'm not penalized, as Senator
Maltese unfortunately just pointed out for us.
And so I'm afraid there are many
candidates out there who might, in a fierce
2211
political battle, decide it's better, in their
own political judgment, that the voters don't
know where the money's coming in from, they
take in all that money, it cannot be used
against them in a campaign.
And what happens is the voters then
do not know. Subsequent to the election,
regardless of the outcome, then the filing is
put in, without penalty, and we've just
created a situation where we've obviated the
purpose of the law.
This is absolutely the wrong
direction to head in.
Number one, there's electronic
filing going to be required. And while I
understand that there may have to be a record
of who files electronically and that may
produce some paper, the fact is that we're
going to electronic filing so that we don't
have to have a tremendous amount of paper.
And as a result of that, there's no need for
us to have this section of the law here placed
onto the books. It's just simply not
necessary. And it absolutely moves us in the
wrong direction.
2212
Here's why. There is nothing that
makes contributions, the money that you take
in, less important than the money that you
expend on a race.
In fact, I would argue that it is
more in the public interest to know where the
money is coming in to finance a campaign or to
potentially try and influence a candidate than
what you are spending on a race.
So with this piece of legislation,
we are putting blinders on the electorate, we
are casting a shadow on this entire process.
It absolutely moves us in the wrong direction.
So I would urge my colleagues to
vote in the negative on this piece of
legislation. It creates all kinds of
opportunities for very clever individuals,
more clever than myself, to subvert the
intention of the law, which is to have maximum
disclosure, to have maximum understanding of
where money's coming in, and to not be put
into a situation where the voters additionally
question the process -- where I'm transferring
money from one committee to another, to the
state committee, they're sending it back to
2213
me, or I'm deciding I'm not going to do my
filing and actually make expenditures on it
anyway.
Or I'm going to file late
expenditures and, instead of me filing under
current law -- if I fail to file under current
law, bang, all of the requirements that
currently exist trigger for my opponents red
flags. They'll say, "Senator Hevesi missed
the filing that comes 32 days before the
primary. Senator Hevesi missed the filing
that came 11 days before." They're going to
be sending out mailing after mailing attacking
me, that I'm not participating in this process
with integrity.
And that's all gone if this
legislation is enacted. So I don't mean to be
dramatic, but this takes us 180 degrees in the
opposite direction.
For those reasons, I urge all of my
colleagues to vote in the negative on this
bill, as I intend to do.
Thank you.
ACTING PRESIDENT MEIER: Senator
Paterson.
2214
SENATOR PATERSON: Mr. President,
in the past I've voted in favor of this bill.
Last year, this bill passed 59 to 2. Only
Senators Gold and Leichter voted in the
negative.
However, Senator Hevesi, as clearly
demonstrated, has put a lot of effort and time
into really analyzing what that bill does, and
so has Senator Connor, the Minority leader.
And their urge for a negative vote on this
bill I think is quite merited.
The standard of having a filing is
one that is difficult at times, particularly
when there's a campaign committee that's
almost inoperable and it probably takes some
extra time to file even though the filing
doesn't reveal much information. And that is
a difficulty for those who have committees
that are not accruing any expenditures.
But what Senator Hevesi is
describing, which is the other possibility, is
very detrimental. It creates a lot of
confusion. And with someone of the honesty
and the integrity of Senator Hevesi's
imagination, thinking up all the things that
2215
goes wrong, let's just wonder what someone
whose intent is to defraud the public, what
they might be able to come up with.
I can't compliment Senator Hevesi
enough for his research on this legislation.
I think that everybody here recognizes that
although what Senator Maltese was trying to
cure is a problem, and often a problem for all
of us, it's yet opening up really a Pandora's
box to a lot of possible violations.
And so I couldn't urge my
colleagues more than to heed Senator Hevesi's
request and that all of us change our votes
and defeat this legislation.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 479 are
Senators Connor, Dollinger, Duane, Gentile,
2216
Hevesi, Montgomery, Onorato, Oppenheimer,
Paterson, Schneiderman, Seabrook, Stachowski,
and Stavisky.
Ayes, 46; nays, 13.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Larkin, that concludes the
reading of the controversial calendar.
SENATOR LARKIN: Is there any
housekeeping?
ACTING PRESIDENT MEIER: There is
no housekeeping at the desk.
SENATOR MONTGOMERY: Oh, yes.
SENATOR LARKIN: Please recognize
Senator Montgomery.
ACTING PRESIDENT MEIER: Yes, I
will.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, thank
you. I'm sorry.
Mr. President, I would like to be
recorded -- consent to be recorded on the
Calendar 535. I would like to be recorded in
the negative.
ACTING PRESIDENT MEIER: Without
2217
objection, Senator Montgomery will be recorded
in the negative on Calendar Number 535.
Senator Larkin.
SENATOR LARKIN: Mr. President,
I'd like to remind my colleagues here and
those listening in their room that tomorrow,
when session begins at 11 o'clock, we will be
honoring the United States Military Academy.
And I would like, on behalf of the
Majority Leader, to ask you to please be in
attendance tomorrow.
We have -- many of these young
cadets, within the next four months, will be
in battle zones, as previous members of the
corps have. I think out of respect to the
entire corps, we owe them that respect.
And I would appreciate, on behalf
of the Majority Leader, for all of us to be in
the chamber tomorrow to give due respect to
the United States Corps of Cadets.
We're now adjourned until
11:00 a.m. tomorrow morning.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Wednesday, April 21, at 11:00 a.m.
2218
(Whereupon, at 4:24 p.m., the
Senate adjourned.)