Regular Session - April 27, 1999
2337
NEW YORK STATE SENATE
THE
STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 27, 1999
3:04 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
2338
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 all bow our heads in a moment
of silence, please.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 26th, the Senate met pursuant to
adjournment. The Journal of Sunday,
April 25th, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
2339
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Lack,
from the Committee on Judiciary, reports the
following nomination:
As a judge of the Surrogate's Court
of Chautauqua County, Stephen W. Cass, of
Frewsburg.
THE PRESIDENT: Senator Lack.
SENATOR LACK: Thank you, Madam
President. I rise to move the nomination of
Stephen W. Cass, of Frewsburg, as a judge of
the Surrogate's Court of Chautauqua County.
Judge Cass appeared before the
Judiciary Committee this morning. His
credentials have been examined by the staff of
the committee, have been found to have been
entirely in order. He spoke to the committee
this morning, the committee was impressed, and
by unanimous vote sent it to the floor of the
Senate for confirmation this afternoon.
And I would most respectfully
yield, for purposes of a second, to Senator
McGee.
2340
THE PRESIDENT: The question is
on the confirmation.
Senator McGee.
SENATOR McGEE: Thank you, Madam
President.
It gives me great pleasure to
second the nomination of Stephen W. Cass to
become the judge of the Surrogate Court of
Chautauqua County. I've known Steve for
several years, and I know him to be a fine
young man, a leader in the community, and a
fine attorney. He's well qualified to assume
the important position of judge of the
Surrogate Court.
A graduate of Albany Law School and
president of his graduating class, Steve is no
stranger to the Senate chamber. He is a
former Senate staff person who worked in the
office of the late Senator Jess Present while
attending law school.
In addition to the practice of law,
his background also includes service as a town
justice, experience as a deputy in the
Chautauqua County sheriff's navigation
division, and work as an adjunct faculty
2341
member at Jamestown Community College.
In becoming a judge, Steve is
continuing a family tradition of public
service. His father, Willard, recently
retired from a long and distinguished career
as a judge in Chautauqua County.
I congratulate Governor Pataki for
his wisdom in making this appointment.
Steve, I congratulate you and your
family -- your wife, Krista, and daughters,
Caitlyn and McKenzie -- on this achievement,
and I know you will do an outstanding job.
Accompanying Steve this afternoon
of this very important day are his mother and
father, Willard and Florence Cass, his
mother-in-law, Mrs. June Fagerstrom, and of
course his charming wife and two beautiful
daughters -- his wife, Krista, and his
daughters, Caitlyn and McKenzie.
And they are in the balcony.
So I congratulate you, Steve.
Thank you, Madam President.
THE PRESIDENT: Senator Rath.
SENATOR RATH: Thank you, Madam
President.
2342
I would like to add my words of
congratulations and recommendation regarding
Judge Cass. The Rath family and the Cass
family have known each other for many years.
Western New York is big in geography but
rather close-knit when it comes to knowing the
various people who are involved and active.
And I could not say words any
better than Senator McGee has said. But let
me just point out to those of you who are
noting Judge Cass and his wife and young
children, we have a gentleman here who will be
in New York State for a long time, have a
chance to serve with distinction for a long
time, and act as a role model to other young
people who we say things are going well in New
York State, there is opportunity for young
people -- not only, obviously, in the
judiciary and the legal activities, but in a
whole lot of places in New York State.
So congratulations, Judge Cass. I
hope you serve for the next 75 years.
THE PRESIDENT: The question is
on the confirmation of Stephen Cass of
Frewsburg as judge of the Surrogate's Court of
2343
Chautauqua County. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: Stephen Cass is
hereby confirmed as judge of the Surrogate's
Court of Chautauqua County.
On behalf of the Senate and as its
President, I extend to you all the courtesies
and congratulations of this house to you and
your beautiful family here with you today, and
wish you every continued success in your new
position, Judge.
(Applause.)
THE PRESIDENT: Reports of select
committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Bal -- Senator Skelos,
first.
SENATOR SKELOS: Why don't we
handle the motions first.
THE PRESIDENT: Fine, Senator.
2344
Senator Balboni.
SENATOR BALBONI: Yes. Thank
you, Madam President.
I'd like to call my bill, Print
Number 1241, call it from the Assembly, which
is now at the desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
80, by Senator Balboni, Senate Print 1241, an
act to amend the Criminal Procedure Law.
SENATOR BALBONI: Madam
President, I now ask that the -- I now move
that we reconsider the vote by which this bill
was passed.
THE PRESIDENT: The Secretary
will call the roll on reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 43.
SENATOR BALBONI: Madam
President, I now offer -
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: -- the
following amendment. Which should be at the
desk.
2345
THE PRESIDENT: The amendments
are received, Senator.
SENATOR BALBONI: Thank you.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President.
On behalf of Senator Markowitz, I
move that the following bills be discharged
from their respective committees and be
recommitted, with instructions to strike the
enacting clause: Senates 20, 27, and 41.
THE PRESIDENT: So ordered.
SENATOR HEVESI: Thank you, Madam
President.
THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Saland, would
you please place a sponsor's star on Calendar
Number 645.
THE PRESIDENT: That bill will be
starred, Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
THE PRESIDENT: Senator Skelos,
2346
we have substitutions?
SENATOR SKELOS: Yes, Madam
President, I believe there are some
substitutions. If we could make them at this
time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 4,
Senator LaValle moves to discharge, from the
Committee on Higher Education, Assembly Bill
Number 6831 and substitute it for the
identical Second Report Calendar Number, 677.
On page 10, Senator Spano moves to
discharge, from the Committee on Labor,
Assembly Bill Number 3517 and substitute it
for the identical Third Reading Calendar, 149.
On page 10, Senator Meier moves to
discharge, from the Committee on Veterans and
Military Affairs, Assembly Bill 3085 and
substitute it for the identical Third Reading
Calendar, 162.
On page 12, Senator DeFrancisco
moves to discharge, from the Committee on
Commerce, Economic Development and Small
Business, Assembly Bill Number 109 and
2347
substitute it for the identical Third Reading
Calendar, 244.
On page 24, Senator Bonacic moves
to discharge, from the Committee on Housing,
Construction and Community Development,
Assembly Bill Number 7642 and substitute it
for the identical Third Reading Calendar, 490.
And on page 27, Senator Volker
moves to discharge, from the Committee on
Codes, Assembly Bill Number 1540 and
substitute it for the identical Third Reading
Calendar, 539.
THE PRESIDENT: The substitutions
are ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe -- at this time could we adopt the
Resolution Calendar in its entirety, with the
exception of Resolution 1102.
THE PRESIDENT: Senator
DeFrancisco.
First of all, all in favor of
adopting the Resolution Calendar, with the
exception of Resolution 1102, please signify
by saying aye.
2348
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: At this time
could we please take up Resolution Number
1102, by Senator DeFrancisco. May we have the
title read and move for its immediate
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
DeFrancisco, Legislative Resolution 1102,
honoring the members of the Technology Club at
Camillus Middle School, Camillus, New York,
for their participation in the 1999 49th
Senate District "Good News! Good Kids!" Youth
Responsibility Program.
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Thank you,
Madam President.
2349
THE PRESIDENT: You're welcome.
SENATOR DeFRANCISCO: As you know
from prior discussions about this program, we
honor three groups of students each year for
doing good things in our community, to show
the world that the bad things that happen that
we hear about daily are far outweighed by the
good things that young people do.
The winner in the elementary -
excuse me, the middle-school class of
competition for the "Good News! Good Kids!"
Program in my district are the Camillus Middle
School, the Technology Club of that school.
And it's very interesting that many
of us have been in a canoe before, but how
many have made a canoe? To actually make
something with your hands, to show that you
can actually do something constructive with
your hands -- but even more so, to do it for a
very good reason.
The Erie Canal is obviously a very
historic fixture in our state. And there's an
Erie Canal organization in the Town of
Camillus to preserve the Erie Canal and to
make use of the facilities in it and around
2350
it. And they donated to that group this canoe
that they made, and they raised $1500 in a
raffle for preservation projects in our area
for the Erie Canal.
So I wanted to salute publicly, in
supporting this resolution, the Camillus
Middle School, and their teachers who are
here, and some of the parents, and
congratulate them for being good kids. It's
truly good news, and we're proud of all of
you.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
before we go to the noncontroversial calendar,
it's my pleasure, on behalf of Senator Bruno,
to introduce the Honorable Syringa Marshall
Burnett, who's the president of the Senate in
2351
Jamaica. She's also senior lecturer and head
of the Department of Advanced Nursing,
University of the West Indies.
Ms. Marshall Burnett is a
registered nurse, and she completed her
undergraduate work at the University of
Toronto and completed her graduate work at NYU
in the early '70s.
She is in the States on a visit to
NYU and is being inducted into the
International Nursing Honor Society. She's
also visiting Hartwick College School of
Nursing in Oneonta. And students from
Hartwick College School of Nursing are
attending the New York State Nurses
Association's Lobby Day, which is going on
right now.
Ms. Marshall Burnett was first
appointed to the Jamaican Senate in 1992 -
the Senate elects its own leadership -- and in
'93 was elected First Deputy President by a
unanimous vote in the two-party system that
exists. Upon the President of the Senate's
resignation in 1995, Ms. Marshall Burnett
became President of the Senate. And she has
2352
been twice reelected to that position.
I know I had the pleasure of
meeting you earlier in the day. You indicated
how much you've enjoyed meeting the
legislators. Let me assure you, it's a
pleasure on our behalf to meet you and to
welcome you to the Senate.
And as I mentioned to Senator Bruno
when we were chatting with you, it would be
great if you would invite us to Jamaica around
January or February to visit you.
Welcome to the Senate chamber.
(Applause.)
THE PRESIDENT: Thank you,
Senator.
And as one President of the Senate
to another President, President Syringa
Marshall Burnett, we're very happy and honored
to have you here. I hope this is a positive
comparison and experience for you.
We extend you every courtesy of
this house and hope you'll visit us again.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
2353
calendar at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
334, by Senator Bonacic, Senate Print 3664, an
act to amend the Private Housing Finance Law,
in relation to the powers of the New York
State Housing Finance Agency.
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, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
397, by Senator Maltese, Senate Print 1126, an
act to amend the Executive Law, in relation to
a crime victim's or crime victim's
representative's statement.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
2354
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
405, by Senator Wright, Senate Print 3611, an
act to amend the Education Law, in relation to
county awards for health care professionals.
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, 51.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
406, by Senator Saland, Senate Print 718, an
act to amend the Criminal Procedure Law and
others, in relation -
SENATOR SMITH: Lay it aside,
please.
2355
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
426, by Senator Rath, Senate Print 2943, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to sentence for
persistent misdemeanor offenders.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
427, by Senator McGee, Senate Print 3337, an
act to amend the Criminal Procedure Law, in
relation to eligibility for youthful offender
status.
THE PRESIDENT: Read the last
section.
2356
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
536, by Senator Alesi, Senate Print 743, an
act to amend the Penal Law, in relation to
endangering the welfare of a child.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
538, by Senator Balboni, Senate Print 853A, an
2357
act to amend the Civil Rights Law, in relation
to confidentiality of victims' and witnesses'
addresses.
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, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
543, by Senator Johnson, Senate Print 1962A,
an act to amend the Penal Law in relation to
criminal use of public records.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51. Nays,
1. Senator Duane recorded in the negative.
2358
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
545, by Senator Volker, Senate Print 2139, an
act to -
SENATOR SMITH: Lay the bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
546, by Senator Saland, Senate Print 2320, an
act to amend the Criminal Procedure Law and
the Family Court Act, in relation to access to
records.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51. Nays,
1. Senator Sampson recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
2359
555, by Senator Volker, Senate Print 3181, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to the offenses of
bail-jumping and failing to respond to an
appearance ticket.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 16. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
559, by Senator Rath, Senate Print 3689, an
act to amend the Civil Practice Law and Rules
and the Executive Law, in relation to
extending the statute of limitations.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
January.
2360
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 52.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
583, by Senator Johnson, Senate Print 1741A -
SENATOR SMITH: Lay the bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
584, by the Assembly Committee on Rules,
Assembly Print Number 2103, an act to amend
the Tax Law, in relation to extending the
sales and use tax -
SENATOR SMITH: Lay the bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
632, by Senator Marcellino, Senate Print 4165,
an act to amend the Town Law, in relation to
the membership of volunteer fire companies.
THE PRESIDENT: Read the last
2361
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
661, by Senator Seward, Senate Print 4651, an
act to amend the Insurance Law, in relation to
homeowner's insurance catastrophe coverage.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Could we please
take the controversial calendar up.
2362
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
406, by Senator Saland, Senate Print 718, an
act to amend the Criminal Procedure Law and
others, in relation to testing of certain
criminal defendants.
SENATOR PATERSON: Explanation,
please.
THE PRESIDENT: An explanation
has been requested, Senator Saland.
SENATOR SALAND: Thank you, Madam
President.
Madam President, this bill is a
bill which this chamber has considered on
prior occasions. And it's a bill which
attempts to build upon the passage in the
1995 -- as part of the 1995 budget agreement,
a provision which permitted, postconviction,
somebody who had been the victim of a sexual
assault to have his or her assailant tested to
determine if that person in fact was
HIV-positive.
This bill does a number of things,
makes several changes, and in fact is somewhat
2363
consistent with a bill which I had introduced
prior to 1995. This bill would empower a
victim of a sexual assault to have his or her
assailant tested preconviction.
This bill would say that if you are
the subject of an indictment or an
information, that in fact creates the
probable-cause nexus to permit a court to
direct an order which would result in your
assailant being tested and enable you to
determine whether that assailant had a
transmissible disease.
This bill adds to the 1995 chapter
or law a number of additional crimes for which
this testing could be required and maintains
the requirement of confidentiality.
The bill certainly is
constitutionally sound. I'm not sure if
during the course of the prior couple of
debates in which I've been engaged that any
issue has ever been raised with regard to
constitutionality. In fact, I think the law
is clear that really, even in a preaccusatory
stage, the law would permit testing such as
we're proposing to do here. And again, we're
2364
proposing postindictment or postinformation.
I would like to, Madam President,
read from a recent United States Court of
Appeals decision, the Third Circuit, the
matter of United States versus Ward, a 1997
decision, which dealt with the federal
Violence Against Women's Act. And in that
case I believe the court had in effect
remanded to a -- to the lower court because of
certain of the findings that the court made at
the appellate or Court of Appeals level.
And I'm reading from that case now.
It reads as follows. "There is no doubt the
government has a special need for requiring
the test beyond the ordinary need for law
enforcement in this case." And in this case,
the court directed testing of a defendant who
had sexually assaulted the petitioner.
And it goes on to say: "The
special needs in this case are ensuring that
the victims of sexual assaults are notified
promptly whether or not their attackers carry
HIV, and prevent a sexual assault victim from
unwittingly transmitting the virus to others.
Depending upon the results of the test,
2365
notification either gives victims the peace of
mind they are not infected with HIV or allows
them to arrange for counseling and take early
and aggressive medical treatment. The results
also permit victims to modify their lifestyles
accordingly, so as to avoid transmitting the
disease. Testing the attacker is closely
connected to the special need."
In another section, the court
states: "There is no doubt that a compelled
blood test like the one in this case is a body
intrusion and a search within the meaning of
the Fourth Amendment. It is difficult to see
how a search of this type, conducted in
accordance with the procedures outlined in the
Act, could be unreasonable within the meaning
of the Fourth Amendment. First, under the
Act, a blood test is permissible only in
certain limited circumstances: when the
subject of the search is charged with a sexual
assault that poses a risk of transmitting HIV,
there has been a probable-cause determination
that the subject of the search committed the
assault, the victim requested the test, and
the test would provide information necessary
2366
for the victim's health. Second, the test is
only permitted if the subject of the test
receives notice that the victim has requested
the test and is given an opportunity to
contest the entry of the court's order.
Finally, the test results should be kept
confidential."
In effect, the federal court,
without dealing with the text of our statute,
have virtually highlighted all -- many of the
salient features of our statute.
And, Madam President, I believe we
have accommodated any and all constitutional
requirements, accommodated confidentiality
requirements, and we have empowered victims to
have the choice to determine, with
counseling -- because this bill requires
counseling as part of the application -- as to
whether or not they wish to have their
assailant tested. And if so, we then enable
that testing to occur, not postconviction but
preconviction and postindictment or relaying
of an information.
Thank you, Madam President.
SENATOR WALDON: Madam President.
2367
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Thank you, Madam
President. Would the gentleman yield to a
question or two?
THE PRESIDENT: Senator, will you
yield to a question from Senator Waldon?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, out of curiosity, is there
any proviso in this bill for testing the
assailant if somehow it became known that the
victim had HIV?
SENATOR SALAND: Senator, would
you repeat that, please?
SENATOR WALDON: Is there any
proviso in your proposal for testing the
assailant if the victim was proven to have
HIV?
SENATOR SALAND: No, this -- this
bill permits the testing of an assailant,
provides for self-testing of a victim, and
2368
doesn't dwell at any great length upon the
scenario which you have created. In fact, it
doesn't dwell on it at all.
SENATOR WALDON: Madam President,
would the gentleman yield to -
SENATOR SALAND: Are you alleging
lack of equal protection?
SENATOR WALDON: No, no, I'm not.
I'm just being intellectually curious,
Senator.
THE PRESIDENT: Senator Saland,
do you yield to an additional question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, in your preparation of
this very important proposal for our
consideration, did you have occasion to
consult with the AIDS Advisory Council?
SENATOR SALAND: No, I have not.
SENATOR WALDON: Did you consult
with any of the traditional agencies which
2369
have been advocates for the AIDS crisis in our
state?
SENATOR SALAND: Any of the what
agencies?
SENATOR WALDON: Any of the
agencies which have been advocates in regard
to the AIDS crisis in our state.
SENATOR SALAND: I'm truly -- I'm
having a difficult time hearing you, Senator
Waldon, honestly. I don't know if it has
something to do with what's going on over
here, or the fact that your mike is not
catching -
SENATOR WALDON: Senator, I
believe that our side of the aisle, because of
diminished numbers, is much quieter than your
side.
(Laughter.)
SENATOR WALDON: Shall I repeat
the question, Madam President?
THE PRESIDENT: Please.
SENATOR WALDON: Thank you, Madam
President. The question was -- forget that
question.
SENATOR SALAND: I heard the
2370
first part of your question, about the
advisory council. I didn't hear the second
part.
SENATOR WALDON: I'm sorry?
SENATOR SALAND: I did not
hear -
SENATOR WALDON: What part did
you hear?
SENATOR SALAND: I'm sorry?
SENATOR WALDON: What part of the
question did you hear?
SENATOR SALAND: I heard -
THE PRESIDENT: Senator, could
you repeat the question?
SENATOR WALDON: I retract the
question.
May I ask another question, Madam
President?
THE PRESIDENT: Senator Saland,
do you yield for an additional question?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Thank you very
2371
much, Madam President. I appreciate your
intelligence as well.
Senator, you and I have discussed
this at least two years prior, time and time
again. Each year we have dealt with the
thorny issue of the person who is being tested
has not necessarily been found guilty of
anything, nor even probable cause has become
an issue.
Do you think that we are
overreaching with requiring this testing, when
a person may in fact not be guilty of the
crime which would be the predicate crime, in
an intellectual sense, in regard to what
you're attempting to -
SENATOR SALAND: I would
respectfully disagree with you, Senator
Waldon. Because I think by definition, when
the CPL defines indictment and defines
information, they are effectively saying that
that constitutes probable cause.
And again, I would point out, as I
mentioned in my opening remarks -- and I would
call your attention to the Smirva case, which
is a U.S. Supreme Court case. The Court of
2372
Appeals, I believe, in the matter of Abe A.
has similarly -- both have similarly held that
preaccusatory, before there's an information
or before there is an indictment, the
government has a legitimate interest in taking
samples, whether they be hair samples, blood
samples.
This is not anywhere near as
restrictive as I think the Constitution would
permit it. I cited you the U.S. Court of
Appeals case in my opening comments. The case
is a fairly recent case, a 1997 case. The
court addressed many of the issues that you've
raised and really found no reason to accept
the arguments that you're raising.
I find nothing about this bill that
compromises the right of an assailant. There
is confidentiality. It can't be used in any
proceeding, civil or criminal. It's the
victim who has the opportunity to basically
request of the court, should he or she choose,
that his or her assailant be tested.
And then it's a question of
empowering that person to make that choice, if
that's what they wish to do, and in effect
2373
giving them the opportunity to exercise
choice. Something which I would assume
generally, by nature, you are certainly -- you
would certainly concur with.
SENATOR WALDON: Madam President,
may I have the opportunity to ask perhaps two
more questions?
THE PRESIDENT: Senator, will you
yield for two additional questions?
SENATOR SALAND: Yes, Madam
President.
SENATOR WALDON: Thank you, Madam
President.
THE PRESIDENT: The Senator will
yield.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, could you walk me through,
just for edification purposes, the time frame
within which the testing would occur, as you
provide?
SENATOR SALAND: The bill
provides for an application by the petitioner.
It provides that as part of that application
process, the applicant must state that he or
2374
she has been offered counseling.
It goes on to provide a series of
requirements -- and here I'm reading from page
4, starting with subsection (d), at line 29,
and then goes on to state, in subsection (b),
beginning at line 48: "In the case of an
application to test a defendant pursuant to
paragraph B of subdivision 2, the court shall
consider such application on an expedited
basis."
Then it goes on to say: "Any
finding by a court pursuant to this paragraph
shall be accompanied by written findings of
fact, including medical findings." And I
won't go on to read it at any greater length.
So there is a requirement for an
expedited hearing, and would enable, in
effect, the applicant to be before the court
in a rather quick or, as by definition,
expedited fashion.
SENATOR WALDON: Last question,
if I may, Madam President.
THE PRESIDENT: Senator Saland,
do you yield to one last question?
SENATOR SALAND: Yes, Madam
2375
President.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, the treatment component -
SENATOR SALAND: I'm sorry?
SENATOR WALDON: The treatment
component, if one is discovered to be -
meaning the assailant is discovered to be
HIV-positive, that must also be in an
expedited fashion.
And could you, just for those of us
in the chamber who may not be aware, tell us
how soon that must begin in order to be
effective?
SENATOR SALAND: The bill doesn't
talk in terms of when the treatment shall
begin. But it does talk in terms of when the
test shall -- based upon the court order,
shall be given. And it talks in terms of the
test being performed as soon as practicable,
but no later than five days after the entry of
the order.
I would assume that the provisions
2376
for the test would similarly be as expeditious
as possible.
SENATOR WALDON: Madam President,
if I may, on the bill.
THE PRESIDENT: On the bill,
Senator.
SENATOR WALDON: Thank you.
Senator, I am grateful for what
you're attempting to do. This is a very
complex and profound issue. It has -- meaning
HIV has the potential to wreak havoc across
the universe, not just here in New York State
or on the Eastern Seacoast. So what you're
doing is commendable.
However, I am reluctant, again, to
support you in this effort, because I believe
there's not a sufficient demarcation from when
someone is accused to the point in time where
they are actually the person who has committed
the act.
And I also believe that in your
preparation you've not been sensitive -- or
whoever pulled this together, sensitive enough
to the AIDS advocates across our state, in
preparation. And I believe that somehow, even
2377
unintentionally, that this will promote
further prejudice against those who may be
victimized by HIV.
And therefore I would encourage my
colleagues to vote in the negative.
Thank you, Madam President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
If Senator Saland would yield for a
couple of questions.
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR PATERSON: Senator, I
want you -- at first I just want you to feel
that your effort on this issue, which I've
noticed for a number of years, has not gone
unrewarded.
I think you have convinced me, over
the five years that you and I have debated
this bill, that there are certain situations
where even though a defendant who is presumed
innocent, that that defendant would be tested
2378
in a mandatory basis if we could establish
that there was a substantive medical benefit
from the actual testing.
So on the issue of whether or not
we can establish mandatoriness, your
persuasion and also the Ward decision of 1997
have convinced me.
What I'm still not convinced about,
and what you might want to try to persuade me
today, is that there's a substantive medical
benefit to knowing the HIV status of the
alleged assailant. The Center for Disease
Control in Washington, D.C., does not
prescribe this as part of their treatment
protocol for HIV.
In addition, there seems, in my
opinion, and particularly here with the number
of crime victims visiting Albany this
weekend -- it is Crime Victims' Week -- an
encumbrance placed upon the victim that the
victim might in some way be assuaged not to be
tested, based on a negative result, a negative
HIV testing of the alleged assailant.
And I wouldn't want anybody who was
jeopardized in this type of a situation in any
2379
way not to seek the proper medical care that
they would aptly receive. Especially in a
situation as grave as this, grave enough that
in your legislation you're proposing a
mandatory test.
SENATOR SALAND: I'll assume that
the -- that there was a question, and I'll try
and respond to it, Senator Paterson.
Let me start off by suggesting to
you, if I might -- and I know we've -- we
certainly have discussed this issue
previously, as you've noted -- that this bill
in effect, as a condition precedent to the
application being brought, requires the
applicant to state or recognize the importance
of counseling.
He or she, as I read previously,
must state that they've been offered
counseling, they've been advised of the
limitations of the information obtained
through a blood test, and a host of other
things that I referred to earlier in my
response to Senator Waldon's earlier
questioning.
I'm somewhat baffled, to be
2380
perfectly honest with you, because I guess by
nature, perhaps, I'm a bit more conservative
than many of the members on your side of the
aisle, and certainly I think with virtual
unanimity your side of the aisle prides itself
on issues of choice. And all we're saying
here is that a victim has the right to make a
choice. We're empowering victims.
Why would we assume that a victim,
after being counseled and having medical
information, why would we assume that they
would have a false sense of security? Why
wouldn't we assume that their God-given
intelligence or ability to comprehend would
say, "You know, that's not enough. I have to
pursue this further"?
Wouldn't we assume that, given that
power, they could appropriately exercise their
choice? Or don't we believe that people who
are provided with this wealth of information
and have a basic human intelligence are
capable of making those decisions?
I certainly do. I certainly do.
And I see no reason why we should be afraid of
it.
2381
I find it astounding to believe
that given the information that a victim would
have, or an applicant or petitioner would
have, that they would pause at the very onset,
regardless of the result of the test performed
on his or her assailant.
It wouldn't make sense, certainly
in light of the counseling. It wouldn't make
sense in light of the other information that
they're required to acknowledge as part of the
testing. Nor would it make sense in light of
the court's order in effect requiring medical
findings.
And I -- I'm truly puzzled that we
could assume that people could be so lacking
in basic -- in basic intelligence as to want
to protect them from themselves by not
enabling them to make a choice.
SENATOR PATERSON: Madam
President, if the Senator -
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: -- would
continue to yield.
THE PRESIDENT: Senator, do
you -
2382
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: All right. Go
ahead, Senator Paterson.
SENATOR PATERSON: Senator, I'm
not assuming anything about the victims. And
one of the reasons I'm not assuming anything
is I don't think this is a test of
intelligence. And I don't think this is a
test of a person's common sense, if you will.
When people are put in these types
of situations -- and I think a person who is
victimized in the fashion as set forth in your
bill, who runs the risk of contracting the HIV
virus from this source, is put in such a
highly emotionally charged situation, that I
don't want to assume anything about what they
would do. Nor would I care to really give any
kind of really secondhand judgment about their
choice.
What I'm saying is that the factors
that they are relying upon to make a choice
must be those which are scrupulously fair to
the victim. And certainly I would not blame
any victim, as much as I would urge them to
2383
the contrary, who would not be tested and
figuring that because the assailant tested
HIV-negative, that increases the possibility
that they themselves have not been infected
with the virus.
In other words, that is not an
illogical assumption. I don't think it would
the best course for the victim. But it is not
a decision that I think any of us would
actually challenge. It makes a certain amount
of sense. It would probably not be the best
decision for a person to make in that
particular situation.
So when we use the term
"substantial medical benefit," what I'm asking
you is, what is the substantial medical
benefit? If the agencies that regularly work
in this area don't see this as being related
to the protocol, then I want to know how you
find it related to the choice.
In other words, no one is saying
that the victim doesn't have a choice. What
we're saying is the victim has a right to know
this information. And I'm asking you, other
than changing the variables in the equation,
2384
what does this information give the
defendant -- give, I'm sorry, the victim that
the victim didn't have before the alleged
assailant took the test?
SENATOR SALAND: Well, I
appreciate you're certainly acknowledging, as
I believe you have, that you don't object to
the right of the victim having the ability to
intelligently arrive at his or her decision
and make a choice.
Let me suggest to you that the
genesis of this bill, which I introduced
probably some six or seven years ago in a
prior form, came from events occurring in New
York City reported in the media and in a law
journal. And the genesis of it was where
assailants had refused to cooperate in
providing any kind of HIV testing unless the
prosecutor or district attorney's office was
willing to give them a better plea bargain.
That, to me, is not necessarily the
way we want to meet the ends of justice.
While I understand your concern
about medical-benefit tests, it's interesting
to note that former Governor Cuomo had a task
2385
force on rape, sexual assault and child sexual
abuse which had a number of medical and
health-related personnel on it -- physicians,
registered nurses, psychologists, and other
people similarly expert in the area -- that
went on to recommend preconviction testing.
In fact, they went on to recommend
preindictment testing.
And permit me to, if I can, read
from that report, which again is the report
submitted to Governor Cuomo in April of 1990,
a report which the Governor chose not to take
any action on. It reads: "While the results
alone may not be determinative, some victims,
after consultation with their physician or an
HIV counselor, may want to begin immediate
treatment with prophylactic drugs. Where the
assailant's first test is positive, the victim
may want to begin immediate drug therapy even
though she or he might not have been actually
infected. Even if the offender's first test
turns out to be negative, the victim may
nevertheless want to proceed with drug
therapy, since she or he may have been
exposed.
2386
"The question of how and when to
test the alleged sex offender remains. The
task force considered and rejected waiting
until an accused is convicted. While a
convicted defendant is no longer presumed
innocent and has fewer procedural rights,
there are two problems with waiting for
conviction. One, extensive delay is
inevitable, because it takes weeks for
conviction by plea and months for conviction
by verdict. And, two, there are a number of
acquittals and dismissals where the defendant
may have nevertheless infected the victim. In
either case, conviction is not an adequate
triggering event.
"For similar reasons, indictment is
not a good marker. Indictments can be
delayed, particularly when the defendant is at
liberty. Furthermore, a prosecutor may be
unable to obtain an indictment for reasons
unrelated to whether the accused is the true
perpetrator.
"The task force therefore suggests
that an efficient process be developed in the
civil court system to allow a victim to obtain
2387
court-ordered tests to obtain an alleged
offender's HIV status. Access to this process
should be available to all victims regardless
of their ability to afford the costs of
testing or other court-related costs. Under
this process, a victim might move for the
court order immediately after the rape or
sexual assault."
So I'm not alone. And certainly
there are victims' groups that are supportive
of this proposal. I'm sure, were we to
quantify, there are probably as many victims'
rights groups in support as you would recite
in opposition.
The U.S. versus Ward case made one
of the very points that I have made in
debating with you, informally with Senator
Leichter, about, really, the importance of the
state of mind of the victim, the mental
anguish the victim has had to endure. What do
we do to put the victim, as best as we can,
back in a situation in which she or he are
more closely able to return to functioning as
normal?
And again, it's part of that
2388
empowerment process that I mentioned to you
before, and the ability to give people choices
and the ability for them, armed with
appropriate relevant information, to make
intelligent choices.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SALAND: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Madam
President, Senator Saland raises an issue
which is really pretty outrageous. And it was
the attempt of assailants, accused assailants,
to barter their HIV test in exchange for a
favorable disposition of their case; in other
words, a favorable plea, maybe a reduction in
the charge.
And having worked in law
enforcement previously, I'm assured that what
2389
Senator Saland is saying is absolutely right.
This is something that defendants will do in
situations to try to create a plea bargain
that would be acceptable to the defendant.
It is -- it's absolutely wrong.
It's something that should be condemned. And
to whatever extent we can codify it, I think
Senator Saland's raising it should be a
message to all of us that perhaps some action
should be taken on our part.
But in many ways, that might really
be the catalyst for this type of legislation.
There is -- it's such a human instinct, and
it's certainly a permissible one, to really
want to make it clear to individuals that
would try to manipulate the criminal justice
system in that way that it's not going to be
tolerated. And I guess it's a certainly
reasonable conclusion that the way to address
it is just mandatorily to test them.
But what Senator Waldon was
pointing out earlier is I think what we need
to really understand. That in our anger at
them and in our frustration at the almost
inhuman contempt that they have for their own
2390
victims or those that they were accused of
victimizing that they actually go to this
length.
But we have to make sure, as those
of us that formulate policy in government,
that we don't go too far in our reaction to
them and establish a standard where they are
mandatorily tested even though they're
presumed to be innocent.
Now, the reason that the test is -
that the point at which the test is -- it
doesn't make a difference from a medical
standpoint is that your opportunity to receive
accuracy in the actual testing increases as
time goes on.
Now, the reason we would want to
conduct the test as soon as possible, as
Senator Saland points out, is so that the
victim can know as soon as possible. But
that's exactly what I'm objecting to. I'm
objecting to this test of the alleged
assailant playing too much of a role in the
decision-making process of the victim. At
which point the victim is now, as Senator
Saland used the term, empowered.
2391
Now, what we can do to empower the
victim psychologically is one thing. But if
we -- in empowering victims psychologically,
making them feel better in the situation, as
overbearing as it is, in any way impacts upon
their medical safety, I have to vote against
it.
And so my final question to Senator
Saland is, can you state with medical
certainty that there is a significant medical
benefit that, rising above the threshold of
substantive, that now is -- is important that
the victim know, other than the fact that it
increases the odds that the victim will
probably not have the HIV virus?
SENATOR SALAND: Well, let me say
that I don't profess to be a physician and
can't tell you with medical certainty -- and I
do believe I've responded to that question -
it's been phrased differently -- a couple of
times previously.
And while I'm really reluctant to
continue reading, I think it's important to
read the bill. Some of us sometimes get away
from that. And I certainly don't mean you,
2392
Senator Paterson. And in my debate with
Senator Waldon, for purposes of brevity I
cited a couple of subsections and didn't read
them in its entirety.
But permit me, if you would, on
page 4, starting at line 29, to see if I can
somehow or other -- hopefully at the very
least to disabuse you of the notion that
victims may be perhaps victimized by this
process because they may have a false sense of
confidence about whatever it is that is the
end product of their application to the court.
I mentioned earlier -- and I'm
going to take the liberty of reading several
lines. And if anybody wants to follow, it's
lines 29 to 43 at those pages.
"In all such applications for
testing filed pursuant to this application,
the applicant must also state that the
applicant has been offered counseling by a
public health officer and has been advised,
one, of the limitations of the information to
be obtained through a blood test on the
proposed subject; two, current scientific
assessments of the risks of transmission of a
2393
disease from the exposure he or she may have
experienced; three, the need for the applicant
to undergo testing to definitively determine
his or her status with regard to any disease;
and, four, where the request is for a
transmissible disease test of a defendant, the
availability of prompt, readily accessible,
and scientifically recognized laboratory
testing of the applicant, including, where
appropriate, polymerase chain reaction -
PCR -- or other advanced testing technologies
for the diagnosis of transmissible diseases at
state expense, pursuant to subdivision 1(a) of
this section."
And I would merely point out that
in addition to this, there's also a provision
on the last page of the bill for self-testing
at state expense as well. And the bill
provides for reimbursement by the state where
possible and appropriate.
SENATOR PATERSON: Thank you,
Madam President.
Thanks, Senator Saland.
Madam President, on the bill.
There is a lot to be said for the
2394
work that Senator Saland has done on this
particular issue. I've debated him on this
issue a number of times in this chamber. I've
talked to him outside the chamber about this
bill. And every possible precaution that is
being taken to make sure that the victim is
given all relevant information is included in
Senator Saland's bill.
I just continue to have an
objection to the use of information about the
HIV status of the defendant, the accused
assailant, in order to establish any
presumption about the victim's HIV status.
Now, in most of this debate we've
been assuming the possibility -- which used to
be a reality, where it took a long time for
the HIV virus to present itself in victims.
We now have a much faster way of detecting
this than we did ten years ago. Ten years
ago, we would have had to have waited six
months. Now, within a matter of days, it can
pretty much be established that a person is
infected with the HIV virus.
But there always is the chance that
the victim's virus doesn't show up, and that
2395
the -- I mean that the defendant's virus has
not shown up yet, but the defendant does have
the virus, and so does the victim, and,
consequently, that hasn't shown up yet.
That's, I think, one of the fears about this
bill.
But before closing, Madam
President, I just want to give an example of
another way that the test could give a false
indication. In the January New England
Journal of Medicine, there's an article about
HIV testing in Kenya. And it turns out that
75 percent of individuals in Kenya who are
suffering from leprosy are testing
HIV-positive. They don't have the HIV virus,
but there's something about the leprosy virus
that causes the false-positive test for HIV.
And therefore, what I'm saying is
theoretically, even if the defendant tests
positive for HIV, you still don't know what
the status of the victim is going to be.
And my only argument on this
point -- because the mandatoriness doesn't
bother me, Senator Saland. And the issue of
how the defendant feels about it frankly
2396
doesn't bother me at all either. But what
bothers me is what happens to the victims who,
in this state of personal crisis, can have
their feelings to some degree assuaged, or to
some degree they can be excited by a prospect
that may not be accurate and that more and
more is not accurate.
And what I would just hate to see
is someone that would make a decision based on
information that, even with counseling, causes
them to take a position that could prove later
detrimental to them.
And that's the reason that I cannot
support the bill, Madam President.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill, if I may.
THE PRESIDENT: On the bill,
Senator.
SENATOR DUANE: Thank you very
much.
Rape is a terrible, terrible
crime -- heinous, awful, deserves to be
punished. I want to say, though, that as much
focus as we put in this body on punitive
2397
testing issues is time that we do not spend on
actual prevention of HIV.
I'm very, very concerned about
the -- giving the quality of predator to
people with HIV. And, sadly, this kind of
issue and this kind of debate I think adds to
that generalization about people who carry the
HIV virus.
You know, testing for HIV is not an
effective crime-fighting tool, and forced
testing is certainly not an effective public
health tool. Test results of accused
criminals tell us virtually nothing about the
health or the mental health condition of
someone who has been victimized by a sexual
assault or a rape.
And in fact, if we really wanted to
be immediately helpful, what we would do in
the State of New York is find a way to
immediately pay for prophylactic treatment for
someone who's been victimized by sexual
assault.
Crime victims' agencies across this
state now struggle to find the money to pay
for prophylactic treatments for rape victims.
2398
It's very expensive. And there is nowhere in
State government that prophylactic treatments
are immediately paid for for the victim of a
sexual assault.
So if we really want to do
something, let's find a way to pay for
prophylactic treatment, whether it's for rape
victims or persons who may be incarcerated or
those who are guarding people that are
incarcerated or, for that matter, anyone who
needs immediate prophylactic treatment in a
sexual situation.
You know, I know that some of you
think that I'm the one that makes HIV a
political issue. But let's really look at
what's happening here by raising this issue
today -- how is it that HIV is really being
made a political issue, and in what way.
Thank you.
THE PRESIDENT: Senator Goodman.
SENATOR GOODMAN: Madam
President, I once again feel constrained to
vote in the negative on this bill, and I'd
like to recap quickly the reasons why.
Let's assume for the moment that
2399
I'm standing on a street corner and all of a
sudden an assailant comes up, demands my
wallet, I raise my arm in defense, and he
bites my arm. And now I'm concerned that he
has HIV and I want to be protected.
I wanted to be protected. My
protection as a victim of a crime is the
predominant facet in this whole discussion.
The question is, what's the best
way to protect me? Is it to mandate that the
person who bit me have immediate testing so I
can determine if he's HIV-positive? The
answer is a dispositive no, it is clearly not
the best way. There's only one way to protect
me. That is to find out whether I have been
exposed by testing me.
Now, the AIDS Advisory Council was
created some years ago at my insistence. As
some of you may remember, it was I who took
the initiative in this whole matter, created
the AIDS Advisory Council, which was supposed
to consist of the best available medical
experts who could give the public in general
advice on this dread disease with its many
complexities.
2400
At the head of the AIDS Advisory
Council is Dr. Rosenfield, who is at Columbia
Presbyterian Medical Center. He is not gay.
He is totally objective as a medical observer.
And he has led this AIDS Advisory Council
repeatedly in a series of, in my judgment,
very sensible steps to try to acquaint the
public with what must be done to prevent the
spread of this disease.
Now, here I am the victim, I've got
this wound on my arm, there's a possibility
that my assailant was in fact HIV-positive.
Now we test him we find out that he is
HIV-positive. But we haven't tested me. Does
this give me the assurance that I have HIV?
No.
But let's reverse the circumstance
and say that we test the gentleman who bit me
and that he is not HIV-positive. Does that
assure that I'm not HIV-positive? Not
necessarily, because I might have come into
exposure from some other aspect of this means
of transmission.
The vectors of transmission are
many and varied, and this is a complex medical
2401
matter. We have the best possible available
medical advice consulting with us in the AIDS
Advisory Council. On a bill like this, we
completely brush it aside and ignore it.
Colleagues, I insist this makes no
sense. We are providing funds for the careful
research which this group does, and they've
given us a piece of advice which in substance
is this.
If you have any reason to suspect
that you are HIV-positive, then get yourself
tested. Do it promptly. Do it within the
first six hours, if possible, after the
incident which you may have thought brought
about exposure. Because there is every
medical means of preventing your getting the
disease if you do that.
That's the core thing, and anything
else -- the mobs are cheering me from the
outer chamber, but I don't want that to
influence anybody's thinking.
The fact of the matter is, good
friends, that we must try to understand what's
really going on here, which is that it's a
simple medical question. Do not be befuddled
2402
and confused by the fact that a victim should
be protected by going after the person who has
exposed him. This is not a way to find out
anything of any use to the victim, nor is it a
way to do it timely.
So for that reason I shall once
again vote no on this. This has nothing to do
with one's philosophical view of issues
relating to gays and lesbians. It has nothing
to do with anything other than the best way to
protect the person who's been exposed.
If you're ever exposed -- and I
hope you won't be -- through any incident
whatsoever, don't fiddle-faddle around. Get
yourself to a clinic immediately and get
yourself tested. And that's the only way
you're going to know whether you need
protection or not. All the rest of this stuff
is irrelevant to that central fact.
That's my view, and I hope that
you'll consider it very carefully.
Thank you.
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
2403
Madam President. On the bill.
My thinking about this issue has
evolved a lot in the last year or two. And
I'm concerned that this well-intended piece of
legislation actually will work a serious harm.
Because much of the language that
we have in these memos and that I've heard
from Senator Saland's detailed explanations
refer to the victim's peace of mind. What I'm
afraid is we're setting up a situation where
people will have false peace of mind.
And as Senator Duane just pointed
out, the prophylactic treatments -- which are
the only thing you should do. Whether an
assailant tests positive or negative, you
should get the prophylactic treatment
immediately, and you should test yourself
regularly. They're expensive.
And I'm concerned that we're
setting up a situation where we reinforce a
stereotype and a prejudice that if the victim
tests positive, you've probably got HIV -
which is not true, because the odds of you
getting it are actually very small -- or if
the victim tests negative, you probably don't
2404
have it, which is also false.
Medically we know what you should
do. And the conduct should not change based
on that test. And I'm concerned that we are
going to have people in this state -- and I've
dealt with many crime victims. And some of
them are smart, and some of them are not so
smart, and many of them are emotional. And
I'm afraid we are going to encourage -- we're
setting up a structure that will encourage bad
decision-making.
What we should do is fund
prophylactic treatment for every victim that
wants it and ensure that they have testing
easily available. We know medically that's
the thing to do.
And I'm afraid that we're basing -
some of the information here seems to be based
on medical information and technology that is
somewhat old. If the medical technology that
was available five years ago was the state of
the art, there are a lot of people who
wouldn't be with us right now. It has
changed. It's evolved. They do have these
prophylactic treatments.
2405
And I think we are really sending
the wrong message to the public. And I'm
afraid this will result in people declining to
be tested and declining to take treatments
they should.
And that's why I'm going to vote in
the negative on this bill.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 406 are
Senators Breslin, Connor, Duane, Gonzalez,
Goodman, Markowitz, Montgomery, Nanula,
Paterson, Rosado, Sampson, Santiago,
Schneiderman, Smith, Stavisky, and Waldon.
Ayes, 44. Nays, 16.
THE PRESIDENT: The bill is
passed.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I would like unanimous consent to
2406
be recorded in the negative on Calendars 426
and 546.
THE PRESIDENT: Senator
Montgomery, you will be so recorded as voting
in the negative on Calendars 426 and 546.
Senator Oppenheimer.
SENATOR OPPENHEIMER: I wish to
be recorded in the negative on -- what was
this last vote? On the last vote. 406.
THE PRESIDENT: 406, Senator.
You will so recorded, Senator
Oppenheimer, as voting in the negative on
Calendar 406.
The Secretary will read.
THE SECRETARY: Calendar Number
545, by Senator Volker, Senate Print 2139, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to term of
imprisonment.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
2407
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: May I have a
brief explanation, please?
THE PRESIDENT: Senator Volker,
an explanation has been requested.
SENATOR VOLKER: Madam President,
I thought I was going to sneak this one
through.
Madam President, this is what's
known as "three times and you're out," for -
in fact, I was looking at last year's debate,
and Senator Montgomery is really the only one
in that debate that I believe is still here.
Senator Gold, Senator Leichter -- in fact, the
acting -- the acting president was Joe
Holland, and he's gone too.
I don't know what this all means,
but maybe it's an omen for me. I don't know.
(Laughter.)
SENATOR VOLKER: But anyways,
this bill passed the Senate last year 50 to
10. What it really is is -- and let me be
very honest with you. I was looking at the
memo. The memo is obviously a few years old,
because it talks about the rising crime rate
2408
and -- and ever-rising. Of course, that's not
true anymore. There's been a dramatic decline
in violent crimes in particular. And thank
God we've begun to get a handle on that.
But what this bill does is -- and
it is still pertinent, despite Jenna's Law and
some other things, because what it does is for
people who are persistent, violent felony
offenders -- in other words, this would be
three times or more. And there's various ways
where you could potentially have somebody that
could have more than three times, although
they probably would be a little up there in
age. What it would mean is that they would be
subject to 25 years to life in prison.
Now, very quickly -- and Senator
Montgomery, since you asked me these questions
last year, and I read last year's -- what it
really does is for the offenses that are
primarily involved, it would raise the
minimum. There's already a life term,
essentially, for the most serious of the
violent offenders. What it would really do is
move the minimum from 20 to 25 years.
Now, I'm not saying that this is in
2409
all cases. But in the most serious cases, it
would move the minimum from 20 years to life
to 25 years to life. This is for three-time
violent felony offenders.
And that's basically what this
bill -- the other thing it does is it limits
plea bargaining for a third-time violent
felony offender. Although I have to admit to
you it would be hard to plead out of that
anyways. I mean, you'd have to plead to a
pretty serious offense anyways.
But it really is -- what this was
is it was sort of a middle ground between two
times and you're out. We had this debate
around here for years on "two times and you're
out" mandatory sentencing and so forth. And
this was a bill that actually, I think, Joe
Lentol and I put in that was kind of a minimum
ground at that time, which was three times and
you're out.
SENATOR WALDON: Madam President,
would the gentleman yield to a question or
two.
THE PRESIDENT: Senator Volker,
would you yield to a question?
2410
SENATOR VOLKER: Certainly.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Thank you very
much, Madam President.
Senator, I've visited a number of
prisons around this state, as I'm sure from
time to time you have, and I've noticed that
we have a growing population of senior
citizens.
And at one prison we went to, with
coverage by the TV media, we found a group of
septuagenarians and octogenarians, 70 and 80
years of age. Some were so frail from a
medical perspective that they could not fend
for themselves. They had to have a nurse lift
them from the bed, dress them, put the IVs in,
put them in the wheelchair or on the cart and
wheel them into the meeting.
Are we not creating a predicament
for ourselves in terms of our prison system by
putting these very heavy sentences
automatically on everyone who falls short and
becomes, as you said, the three-time violent
felony offenders?
2411
SENATOR VOLKER: No, I don't
think so, Senator. And let me just tell you
that -- yeah, in fact, I was -- some years ago
I visited a number of prisons and actually
went to meet with some of the very old
prisoners, because we were researching the
idea of doing medical parole.
And I remember what a big deal
medical parole was around here. And we made
an agreement with the Assembly. And medical
parole passed, because of course the
Governor -- as we pointed out at the time,
then Governor Cuomo could actually have done
it anyways. I mean, he could have -- there
was a way to do it even short of legislation.
We passed medical parole. The
number of people who have been paroled because
of medical parole -- I forget. I had the
numbers here someplace. It's like about 30
people or 40 people.
A big part of the reason was, when
we went to a number of the prisons -- and I
talked to one inmate, for instance, that was
85 years old. And I said to him -- a very
nice man, although, unfortunately, he had
2412
killed somebody when he was younger, and
that's of course why.
But I said to him, "Would you like
to get out?" And he said, "What would I do
when I get out?" I said, well -- you know, I
said, "You're -- you're ailing somewhat." And
he said, "Look, my wife is dead, my friends
are dead. I have nothing on the outside. My
whole life is here in this prison."
The other thing that was
interesting about it is that, as we found out,
if we had let this fellow out, he would become
a charge of the local county wherever he went,
rather than of the State of New York, under
the Medicaid rules.
It was amazing how many of the
older inmates we found either didn't really
want to get out or, for various reasons, it
was very difficult to get them out. Frankly,
the State of New York I think looks to some of
these older inmates and is frankly looking for
the possibility of getting some of these
people out.
Most of these people are not in
under our second violent felony offense, but
2413
they're in because they were in for very
serious offenses many years ago. They
exhausted, in effect, their parole, for one
reason or another. And very many of them just
don't want to get out.
And the funny thing about the
system is that the system is reluctant to
force anybody out of the system who doesn't
want to get out. Now, I'm not saying that
that's so in every case.
But I will tell you, one thing you
should remember is that when we're talking
about people who are three-time violent felony
offenders, these are pretty bad people.
Because they've had a lot of chances, and now
they have come to a point where they have been
out, quite clearly, and they have done
something extremely severe to get them into
that position.
So I guess my answer is yeah, we
don't want a lot of people in the prison
system who are extremely old if we can avoid
it. On the other hand, we don't want somebody
who commits a violent offense running around
society, in many cases despite their age.
2414
SENATOR WALDON: Madam President.
THE PRESIDENT: Senator Waldon.
SENATOR WALDON: Would the
gentleman yield again?
SENATOR VOLKER: Certainly.
THE PRESIDENT: Senator Waldon,
go ahead.
SENATOR WALDON: Senator, I've
read, as I'm sure you have, many of the
reports, some from the Bureau and from other
sources, which speak to the issue of aging and
criminal behavior. And there comes a point in
time -- as with drug addicts, if you reach
around 40 years of age, people oftentimes,
cold turkey, just stop using drugs. No one
can explain why this happens, but we know it
happens.
We also know, from the information
over the years collected and reported, that
when people reach the ages of 45, 50, 55, the
likelihood of committing crime again, even of
a violent nature, is tremendously diminished
compared to when they were 18, 20, 25, 30.
So are we really accomplishing a
great deal by sentencing them to a minimum of
2415
25 to life versus 20 to life or 15 to life?
SENATOR VOLKER: Senator, let me
remind you that what we're talking about here
is someone who has already committed two
violent felony offenses, clearly has spent an
extended time in jail, now gets out again, and
now commits another violent felony offense.
Despite all those statistics, there are people
that do it.
And the question is, when you have
somebody who has had the opportunity, didn't
take advantage of it, what exactly do we do
with these people? Presumably they have had
all sorts of treatment, because generally
speaking that's true.
And if you're talking about drug
offenders, they've probably been through
programs and all sorts of things. They went
to prison for a drug offense, they've -
because that's true, that although drug
offenses could be part of the initial
offenses, very few people that are in age out
for drug offenses, don't just come out. Even
if they came out, they wouldn't be, under this
law, considered to be violent felony
2416
offenders. So they wouldn't be covered by
this.
So the truth is you're talking
about what would have to be considered a
pretty bad person, even if they're in their
50s or early 60s. Because they have now -
once they have two chances, they've now come
out and committed a very bad crime that puts
them back in there for a long period of time.
SENATOR WALDON: If I may, Madam
President. Would the gentleman yield one more
time.
THE PRESIDENT: Senator Volker,
would you yield to an additional question?
SENATOR VOLKER: Yes.
THE PRESIDENT: Go ahead, Senator
Waldon.
SENATOR WALDON: Senator Volker,
permit me to tell you a true story. Then I'll
ask a question.
I was a young cop working in
Brooklyn, the Brownsville area, and I turn a
corner and there's a huge crap game. I mean a
huge crap game. All the local hustlers.
Those are the guys who sell the numbers, who
2417
do the little things that are criminal
behavior but people somehow patronize them.
So you have the banker, you have
the runners, you have the guys who run the
Saturday night clubs, which are illegal. You
have the local loan sharks. And they're
having this huge crap game.
And so I, freshly out of the
academy, foolishly bust everybody. And they
were polite about my arresting them, but they
made a request of me. And the request, which
I couldn't give, was "We want you to let this
guy go. We were having the crap game to
celebrate his being released from Sing Sing
today." Not smart; right? Not smart at all.
SENATOR VOLKER: No.
SENATOR WALDON: I say that to
say this. Many of the guys that I'm sure you
ran into and I ran into as police officers who
got themselves into a violent felony
situation -- not all, but some would come home
on release and go to the bar, get into a
drinking situation, and then some macho young
tough would challenge them, or they would
foolishly challenge someone. And what would
2418
happen is you'd have a knock-down-drag-out
fight, somebody gets hit with a bottle.
Now you have a violent felony
offender which is a little different than the
guy who actually sticks up the bank, the guy
who murders someone, the guy who rapes and
sodomizes someone.
Can you see any -- not saving
grace, but any distinction between that kind
of violent felony offender versus the guy who
is an actual murderer, bank robber, you know,
a vicious assault person, serial rapist?
SENATOR VOLKER: I think the
problem, Senator, is -- and I understand what
you're trying to say to me. You're trying to
make a gradation of a violent felony offense.
In order to have a violent felony
offense, you would have had to have really
hurt this fellow, presumably committed
manslaughter, almost. Because, as you know,
in the assault area you've got to have a
pretty severe assault before you get into a
violent offense.
I think the answer is that's why I
guess you have minimums and maximums. That's
2419
why, by the way, despite the fact we limit
plea bargaining, there is the potential for
some plea bargaining.
I suppose there's always that
possibility, which is something the DA, I
think, would look into.
But primarily, if somebody is
stupid enough or negligent enough to get into
a situation where you're a two-time violent
felony offender and you subject yourself to
the possibility of a third violent felony
offender, you're somebody who is most likely,
if you ignore that, to get arrested again for
another violent felony offender, it seems to
me.
I think there is the possibility of
what you're saying. And I think we do provide
some limitation. But the problem is that the
vast majority of these people -- it's like
saying, by the way, that you can never plead
in the Rockefeller drug law. We know that's
not true. I mean, if a judge and a DA want to
do something, they can do just about anything
they want. I mean, the system doesn't work
like that.
2420
Nor does the system, even in
violent felony offenders, work that way. And
I suppose I could envision the possibility
that somebody could fall into that category.
But it would be a very, very rare case, it
would seem to me.
And keeping in mind that we are not
talking about minor offenders. These are very
bad people who have repeatedly committed
crimes. And if the numbers are correct, if
they've been busted for two violent felony
offenses, they've probably committed ten or
twelve. Because, as you and I know, most
people who are convicted of these offenses
have committed other crimes that were never
detected, they were never arrested for or
whatever.
I think that's the difference
between you're talking about the fairly minor
offenders. History has shown, and the records
very often show, that these people have been
arrested dozens of times for offenses that
could be considered to be fairly violent
offenses, before they ever go to jail.
So I guess my answer is that we
2421
could try to find gradations, but a person who
is going to jail on the third violent felony
offense has got to be considered somebody
who's a pretty serious dude and a pretty
serious offender.
SENATOR WALDON: Madam President,
if I may, on the bill.
THE PRESIDENT: Senator Waldon,
on the bill.
SENATOR WALDON: Thank you, Madam
President.
Thank you very much, Senator
Volker. I believe what you're attempting to
do is somewhat meritorious. I just think it's
a bit too heavy-handed. I think we can
accomplish justice on behalf of the people in
regard to those folks who are characterized by
you, rightfully so, as violent felony
offenders.
And I think that what we're
creating is a problem in our prison system
whereby we're going to have to set aside
entire wings of prisons for those who are
senior citizens and frail and elderly and who
cannot do for themselves at all, and we should
2422
not burden ourselves with that kind of heavy
weight.
And I don't personally see a great
difference in accomplishing your goal when the
threshold is 20 versus 25 or even 15 versus
25. Because the persons who commit the
violent felony offenses as you're speaking
about are generally up in age. So we're not
talking about someone who, as a rule, is 18 -
and there are many of them who at 18 have
committed three -- are committing their third
violent felony offense.
But many of these people are at an
age where putting 25 years on them will have
them coming out of the prison when they are
far beyond even our stately ages, Senator
Volker. And I think that's a burden for the
State.
I thank you very much for your
dialogue.
Thank you, Madam President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
2423
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 545 are
Senators Connor, Duane, Montgomery, Paterson,
Santiago, Schneiderman, Smith, Stavisky, and
Waldon. Ayes, 51. Nays, 9.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
583, by Senator Johnson, Senate Print 1741A,
an act to amend the Civil Rights Law, in
relation to the right of privacy.
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
584, by the Assembly Committee on Rules,
Assembly Print 2103, an act to amend the Tax
Law, in relation to extending.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
2424
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Gentile recorded in the negative.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there's a report of the
Education Committee at the desk. I ask that
it be read.
THE PRESIDENT: Return to the
reports of standing committees. The Secretary
will read.
THE SECRETARY: Senator Kuhl,
from the Committee on Education, reports the
following bill direct to third reading:
Senate Print 5535, by Senator Kuhl,
an act to amend the Education Law.
THE PRESIDENT: Without
objection, the bill is reported to third
reading.
Senator Skelos.
SENATOR SKELOS: Madam President,
2425
is there any housekeeping at the desk?
THE PRESIDENT: Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
On behalf of Senator DeFrancisco, I
wish to call up his bill, Print Number 1153,
recalled from the Assembly, which is now at
the desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
137, by Senator DeFrancisco, Senate Print
1153, an act to amend the Parks, Recreation
and Historic Preservation Law.
SENATOR MEIER: Madam President,
I now move to reconsider the vote by which
this bill was passed.
THE PRESIDENT: The Secretary
will call the roll upon reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 60.
SENATOR MEIER: Madam President,
I now offer the following amendments.
THE PRESIDENT: The amendments
are received.
2426
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until Wednesday, April 28, at
11:00 a.m.
THE PRESIDENT: On motion, the
Senate stands adjourned until Wednesday,
April 28, at 11:00 a.m.
(Whereupon, at 4:37 p.m., the
Senate adjourned.)