Regular Session - January 18, 2000
133
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 18, 2000
3:06 p.m.
REGULAR SESSION
SENATOR RAYMOND 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 to the Flag.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT MEIER: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, January 17th, the Senate met pursuant
to adjournment. The Journal of Saturday,
January 15th, was read and approved. On
motion, Senate adjourned.
ACTING PRESIDENT MEIER: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Volker,
from the Committee on Codes, reports:
Senate Print 130, by Senator
Skelos, an act to amend the Criminal Procedure
Law;
145, by Senator Volker, an act to
amend the Criminal Procedure Law;
548, by Senator DeFrancisco, an act
to amend the Criminal Procedure Law;
650, by Senator Maziarz, an act to
amend the Criminal Procedure Law;
676A, by Senator Rath, an act to
amend the Penal Law;
725, by Senator Volker, an act to
amend the Penal Law;
726, by Senator Volker, an act to
amend the Criminal Procedure Law and others;
2085, by Senator Libous, an act to
amend the Penal Law;
2191A, by Senator Maltese, an act
to amend the Penal Law;
2352, by Senator Velella, an act to
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amend the Criminal Procedure Law;
3421, by Senator Volker, an act to
amend the Criminal Procedure Law;
3537, by Senator Volker, an act to
amend the Criminal Procedure Law;
3719, by Senator Bonacic, an act to
amend the Criminal Procedure Law;
5583, by Senator Saland, an act to
amend the Criminal Procedure Law and the
Executive Law.
Senator Seward, from the Committee
on Insurance, reports:
Senate Print 968, by Senator
Skelos, an act to amend the Insurance Law;
3516, by Senator Seward, an act to
amend the Insurance Law;
And 5740, by the Senate Committee
on Rules, an act to amend the Insurance Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: All
bills will be reported directly to third
reading.
Reports of select committees.
Communications and reports from
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state officers.
Motions and resolutions.
Senator Libous.
SENATOR LIBOUS: Thank you, Mr.
President.
On behalf of Senator Volker, on
page 7 I offer the following amendments to
Calendar Number 22, Senate Print Number 103,
and ask that the said bill retain its place on
the Third Reading Calendar.
ACTING PRESIDENT MEIER: The
amendments are received and the bill will
retain its place on the Third Reading
Calendar.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, I move, on behalf of Senator
Santiago, that the following bill be
discharged from its committee and then be
recommitted with instructions to strike the
enacting clause: Senate 1461.
Thank you.
ACTING PRESIDENT MEIER: So
ordered.
Senator McGee, for a motion.
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SENATOR McGEE: Mr. President, on
behalf of Senator Maltese, I move to amend
Senate Bill Number 1638A by striking out the
amendments made on 12/14/99 and restoring it
to its original print number, 1638.
ACTING PRESIDENT MEIER: So
ordered.
SENATOR McGEE: Mr. President, on
behalf of Senator Saland, on page number 10 I
offer the following amendments to Calendar
Number 57, Senate Print Number 1031C, and ask
that said bill retain its place on the Third
Reading Calendar.
ACTING PRESIDENT MEIER: The
amendments are received and the bill will
retain its place on the Third Reading
Calendar.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
believe there's a privilege resolution by
Senator McGee at the desk. May we please have
it read in its entirety, and I move for its
immediate adoption.
ACTING PRESIDENT MEIER: The
Secretary will read.
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THE SECRETARY: By Senator McGee,
legislative resolution honoring the memory and
celebrating the life of the late New York
State Senator Jess J. Present.
"WHEREAS, State Senator Jess J.
Present, a member of the New York State
Legislature since 1965, unexpectedly passed
away at his Bemus Point home on August 8,
1998; and
"WHEREAS, A life-long resident of
Western New York, Senator Present graduated
from Jamestown High School in 1939 and
attended Allegheny College before serving with
the Eighth Air Force during World War II.
Upon completion of his tour of duty, he
received an honorable military discharge and
returned home a disabled war veteran; and
"WHEREAS, The death of Senator Jess
J. Present, a deeply respected and highly
regarded public servant who served under five
Governors and four Senate Majority Leaders,
leaves a tremendous void in the New York State
Legislature and in the communities he served
with such passion and devotion.
"Senator Jess J. Present
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distinguished himself by his sincere
dedication and substantial contributions to
the welfare of those he so diligently
represented for nearly 40 years. His
unprecedented record of service to the people
of Western New York leaves an enduring legacy
that few will surpass, yet many will emulate.
"Senator Jess J. Present was
elected to the Jamestown City Council in 1960
and served as City Council President from 1962
to 1963. He was elected to the New York State
Assembly in 1965 and to the New York State
Senate in 1968. At the time of his passing,
Senator Jess J. Present represented the 56th
State Senate District, which is comprised of
all of Allegany, Cattaraugus and Chautauqua
Counties and the Livingston County towns of
North Dansville, Nunda, Ossian, Portage,
Sparta, Springwater and West Sparta; and
"WHEREAS, Senator Jess J. Present
was a gentleman and a true gentle man who was
dedicated to his constituency and to the
belief that government can be a positive force
for improving people's lives.
"Senator Jess J. Present played a
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role in shaping every major State law that has
been enacted over the last 33 years by serving
as a member of several Senate Standing
Committees, as well as Chairman of the Senate
Committees on National Defense and Military
Affairs; Agriculture and Consumer Protection;
Local Government; Corporations, Authorities
and Commissions; Ethics; Education; and
Commerce, Economic Development and Small
Business; and
"WHEREAS, Throughout his
distinguished legislative career, Senator Jess
J. Present proudly served in many influential
leadership positions, including Senate
Majority Conference Chairman, Assistant Senate
Majority Whip, Senate Majority Program
Development Committee Chairman, Senate Deputy
Majority Leader for Legislative Operations,
and Senate Deputy Majority Leader for
Administration.
"In addition to the many committee
and leadership responsibilities he so proudly
fulfilled, Senator Jess J. Present was a
member of several important policy-making
groups, including the Temporary State
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Commission on Living Costs and the Economy,
the Temporary State Commission to Revise the
Social Services Law, the Temporary State
Commission on State-Local Relations, and the
New York State Commission on Child Support.
He also served as Co-Chairman of the
Legislative Ethics Committee, Vice-Chairman of
the Special Committee on Casino Gambling, and
the first Co-Chairman of the Administrative
Regulations Review Commission.
"Senator Jess J. Present used the
vast knowledge and experience he acquired as
proprietor of his family's retail jewelry
store and as past director of the Jamestown
Chamber of Commerce to stimulate New York
State's economy. In his most recent position
as Chairman of the Senate Commerce, Economic
Development and Small Business Committee, and
as a member of the Legislature's first Joint
Budget Subconference Committee on Taxes and
Economic Development, Senator Present worked
diligently to improve New York State's
business climate by fighting for major tax
cuts, regulatory reform, and incentives to
help businesses expand and create new jobs.
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"In addition to his well-deserved
reputation as a staunch champion for economic
development, Senator Jess J. Present was also
a compassionate advocate for the needs of
children, families, and the elderly; and
"WHEREAS, A loving father and
grandfather, Senator Jess J. Present believed
a strong family unit is crucial to a child's
development and success in school. As a
member and former Chairman of the Senate
Education Committee, he worked tirelessly to
enhance educational opportunities for students
throughout New York State; secure additional
State aid for public schools and libraries;
initiate the Youth-At-Risk and Community
Partnership Program to encourage students to
finish high school; expand pre-kindergarten
and all-day kindergarten programs; augment
services offered through area BOCES; and
create the Permanent State Task Force on
School/Community Collaboration to coordinate
the delivery of services for children and
families.
"Senator Jess J. Present's
sponsorship of laws that created the Tuition
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Assistance Program, the Liberty
Scholarship/Partnership Program, the College
Choice Tuition Savings Program, and the
Jamestown Community College Region has kept
the cost of a quality college education
affordable for more families. His commitment
to higher education opportunities was
reflected in his strong support of the public
and private colleges and universities
throughout his Senate District, including the
State University of New York Colleges at
Fredonia and Alfred, the New York State
College of Ceramics at Alfred University,
Jamestown Community College, St. Bonaventure
University, Houghton College, and Alfred
University; and
"WHEREAS, A quiet but effective
lawmaker, Senator Jess J. Present sponsored
numerous laws, including those which
established the STAR School Tax Relief
program, the Farmers Protection and Farmland
Preservation Act, and the E-911 emergency
system. Other important laws he authored have
strengthened the State's wine and grape
industry, provided special education to
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preschoolers with disabilities, expanded
insurance coverage for mammography services,
expanded access to rural health services,
created agricultural districts, abolished
New York's clothing sales tax, designated
New York State's POW/MIA Recognition Day,
established the Legislative Administrative
Regulations Review Commission, and reformed
New York's juvenile offender statutes.
"Senator Jess J. Present worked
just as hard in his district as he did in
Albany, and always made the needs and concerns
of the people he represented his first
priority -- whether that meant leading the
successful battle against turning West Valley
into a national nuclear waste dump or cutting
through layers of bureaucratic red tape to
resolve a State government problem on behalf
of a constituent.
"Senator Present demonstrated his
strong commitment to enhancing the quality of
life in his district through his creation and
continuing support of the Southern Tier Drug
Task Force, establishment of the world-famous
Roger Tory Peterson Institute, completion of
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the Southern Tier Expressway, and initiation
of a dry-hydrant fire-protection program in
rural communities. And
"WHEREAS, Year after year, Senator
Jess J. Present supported an array of
projects, programs, and services throughout
his Senate district and provided special
funding for such educational initiatives as
Drug Abuse Resistance Education (DARE)
programs in local schools, Chautauqua County
School Board Association's Youth Summer
Enrichment Program, Cattaraugus-Allegany
BOCES' Kaleidoscope program, Olean High
School's STAR program, Bolivar/Richburg
Central School's Youth-At-Risk program, the
Chautauqua-Cattaraugus Public Library System,
the Southern Tier Public Library System, and
the International Museum of Ceramic Art at the
New York State College of Ceramics at Alfred
University.
"To hold the line on local taxes,
Senator Jess J. Present continually provided
support for public projects that would
otherwise be financed by property taxes,
including municipal building renovations, road
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and bridge repairs, emergency equipment
purchases, water treatment services, and
construction of the interactive Veterans'
Memorial at Jamestown City Hall; and
"WHEREAS, In honor of his
extraordinary career in public service,
Commissioner Bernadette Castro of the New York
State Office of Parks, Recreation and Historic
Preservation dedicated the Old Quaker Store
Museum in Allegany State Park in Senator Jess
J. Present's name. A bronze plaque erected in
tribute to Senator Present reads: 'His
untiring efforts to enhance the State Parks
within the Allegany Region will be appreciated
by visitors for many generations.'
"An esteemed pillar of his
community, Senator Jess J. Present was a
former director of the Jamestown YMCA, a
former Cub Scoutmaster, and a member of the
American Legion, Veterans of Foreign Wars, and
Lakewood Rod and Gun Club. His impressive
conviction, dedication, and commitment to his
fellow man was further reflected in his
service in the Masonic Fraternity as past
Master and 50-year member of Mt. Moriah Lodge
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Number 145, F.& A.M., 50-year and charter
member of Carroll Lodge Number 1147, F.& A.M.,
32nd degree Mason, Valley of Jamestown, AASR,
and member of Kharram Grotto; and
"WHEREAS, Senator Jess J. Present
is survived by his wife, Elaine, his sons,
Jeffrey and Randall, his brothers, William and
Leonard, his sister, Anna Rae, and his
grandchildren, Julie and Leanne and Patrick;
and
"WHEREAS, Loyal friend, trusted
advisor and ardent fighter for the causes in
which he so strongly believed, the
accomplishments of Senator Jess J. Present are
legend; he will be deeply missed and truly
merits the grateful tribute of this
Legislative Body; now, therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to honor the
memory and celebrate the life and
extraordinary achievements of Senator Jess J.
Present, recognizing the significance of his
exemplary record of public service and
dedicating ourselves anew to the causes and
people he served; and be it further
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"RESOLVED, That a copy of this
Resolution, suitably engrossed, be transmitted
to the family of Senator Jess J. Present with
the deepest condolences of this Legislative
Body."
ACTING PRESIDENT MEIER: Senator
McGee.
SENATOR McGEE: Thank you, Mr.
President.
Mr. President, it's the custom of
this legislative body to honor our colleagues
who have through the years served proudly in
this distinguished chamber. Knowing this, I
am pleased to offer a resolution honoring the
memory and celebrating the life of the late
Jess Present, my predecessor, a friend, and a
fine public servant.
It's important to note that, with
the late date of Senator Present's
memorialization, this tribute was scheduled
and postponed a number of times in an effort
to allow his family to travel to Albany to
attend. Coupling the long distance that would
need to be traveled and the health problems of
his wife, Elaine, the prospects of an event at
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an even later date in 2000 were great.
After discussing the
memorialization with the family, it was deemed
appropriate to hold our memorialization today.
Knowing this, I am requesting the Secretary of
the Senate to provide transcripts to the
immediate family detailing our thoughts on the
man that touched the lives of countless
people.
As tradition dictates, I encourage
everyone in this chamber to offer their
thoughts on Senator Present and how his public
work and life that spanned over three decades
has helped the citizens of the state of
New York.
As his successor, I can attest that
every town, every village, and every community
in the 56th Senatorial District felt his work
in Albany. His knowledge of the region and
his ability to work with the constituents and
the constructs of state government served the
56th District well.
Senator Present is widely credited
with shaping the policy now in place that
repeals the state's onerous sales tax on
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clothing.
He of course was also instrumental
in bringing to the fore the importance of
establishing public accountability and
legislative oversight for the state agencies'
rule-making process. His work, of course,
created the Administrative Regulation Review
Commission. Senator Present served as the
co-chairman of this esteemed legislative body
for many years.
Early in my career with the State
Assembly, Senator Present in many ways served
as my mentor. Jess, John Hasper, and I in
fact would meet on Mondays to discuss the
issues of the day as well as to address the
concerns of the constituents we both shared.
For his input, advice, and friendship, I am
grateful.
Senator Present is survived by his
wife, Elaine, as well as his brothers, William
and Leonard, a sister, Anna Rae, two sons,
Jeffrey and Randall, and three grandchildren,
Julie, Leanne, and Patrick.
To close out my remarks, I would
like to read a passage in the resolution
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offered today that struck me as a perfect
synopsis of his life and work in this chamber.
It reads: "Senator Jess J. Present was a
gentleman and a true gentle man who was
dedicated to his constituency and to the
belief that government can be a positive force
for improving people's lives."
Joining us today in the balcony,
Senator Present's brother Bill. And I know
that he feels the same as we.
And I thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Goodman.
SENATOR GOODMAN: Mr. President,
I had the high privilege of knowing Jess
Present intimately during his years in this
great body. And indeed, as I stand here
today, I'm reminded very much of the fact that
he and I sat together in this chamber during
virtually every one of his years of service
here. We entered together, we were
classmates, and we became very close and good
friends through his years of very high and
distinguished service to the State of New
York.
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You've heard a great litany of his
remarkable accomplishments, and it's truly
encyclopedic overview of the work of a true
statesman. I would like to take a moment to
reflect on some of his personal qualities
which I found extraordinarily meaningful and
memorable.
Jess Present, if you could conjure
in your mind the picture of what a perfect
Senator should look like, was that perfect
Senator. Tall, distinguished, with a shock of
white hair, handsome features, and a very,
very dignified manner always, he nonetheless
had a great twinkle and a marvelous sense of
humor. Often when I'd sit down and join him
in the chamber, he'd say, "Oh, what's the joke
of the day?" And we would have a moment of
chuckling before getting down to the serious
business of the Senate.
Jess was a warm and delightful
human being in every way, a companion who had
good judgment, real mature thought, and an
understanding of how this body should function
at its best. He believed deeply in the Senate
as an institution. And, as you've heard a few
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moments ago, he held many of the most
responsible positions of leadership in the
Senate itself.
Above and beyond that, however,
Jess Present was truly a gentleman, as my
colleague has commented upon a moment ago. He
was a man whose behavior I think set a fine
example for this body in every respect. He
was someone who, when he entered a room,
immediately attracted attention as a person of
stature and great dignity and great good
judgment.
And I'd like to say a word about
his legislative judgment. Together we sat
through some very turbulent times in the 1970s
when rioting occurred in the streets, when
there were some very serious budgetary
problems. And throughout all of that, Jess
was sort of a gyroscope. He understood the
difficulties of being a Senator, and at the
same time he rose to its challenges with great
effect.
Jess never allowed the
circumstances or the hysteria of any moment to
shake him up. He always had both feet on the
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ground and at the same time his eyes on the
stars, if I may say so, which is a very rare
quality among Senators.
Jess Present was the best of a
great -- I think a very great and important
group of people who have been entrusted with
the responsibility of stewardship for this
state. Having known him as well as I did and
having shared in his wisdom was to me one of
the great privileges of my service during 30
years in this body.
I'll miss Jess more than I can say,
and I take this moment to salute him from the
bottom of my heart, with the deepest esteem
and affection. He will linger in my thoughts
for many, many more years to come as one of
the true Senator's Senators of all of the
history of this great body.
Mr. Chairman, and Jess's brother in
particular, you have something to be very
proud of indeed in Jess. He showed us the way
on so many issues, and in his entire demeanor
he was the best of our breed and I think
someone who can certainly rise to the occasion
in our memories at this moment as one who was
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the very outstanding prototype of a true
Senatorial excellence.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Farley.
SENATOR FARLEY: Thank you, Mr.
President.
I rise to salute the life of Jess
Present. When I first came here 24 years ago,
he was my neighbor and mentor and advised and
helped me throughout my career, the entire
time I was here.
Jess was really a quiet, gentle
man, there's no question about it, but
somebody that could cut through all of the
chaff and so forth and arrive at the issue. I
know that for a fact he was perhaps one of
Senator Anderson's closest advisors, somebody
that he truly respected. As a matter of fact,
Senator Anderson once said to me the one
person with the greatest political judgment is
Jess Present.
He wasn't a person that made a lot
of noise. But I'll tell you, he cut through
and served in some of the highest levels of
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this chamber. We all think we do such
important things. Jess Present actually did
those things. Deputy Majority Leader,
Chairman of Education.
And, you know, he chaired Local
Government for many, many years. And this was
a man that read those many, many bills that
are there, made judgments on all of them.
That's a very difficult committee, and he had
that for a lot of years and was very, very
knowledgeable in so many, many areas.
And I can often recall asking Jess
what he thought about a particular area of
expertise that I was lacking in, and he always
had a cogent answer that really cut right to
the chase.
Jess Present was a dear friend of
mine, somebody that I was shocked to see his
passing. He was a terrific asset to this
Senate chamber, a colleague that so many
people here will miss and somebody that truly
served this state so well.
He often said, as do you, Senator
McGee, how he was closer to the capital of
Ohio than he was to the capital of New York,
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Columbus. But I'll tell you, he did an awful
lot for New York State, and New York State is
going to miss him, as all of us are.
Thank you very much, Mr. President.
ACTING PRESIDENT MEIER: Senator
Maltese.
SENATOR MALTESE: I've known
Senator Present for more than twenty years.
And when I made the transition to becoming a
Senator, his attitude and demeanor toward me
never changed.
I think I have to commend Senator
Goodman on his recitation of the attributes of
our good colleague, Senator Present.
Certainly he included every attribute that the
Senator possessed. I think he especially, by
including the fact that Senator Present was a
Senator's Senator -- I think you couldn't help
but see him, whether it was in these chambers
or anywhere in Albany, and not realize he was
a Senator.
I had occasion to visit his
district a number of times during his
occupation of the office, and the esteem was
matched only by the affection of the people in
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the district. It's something that you don't
see very often, the respect and esteem that's
held by a public official. I think it was
evidenced in the funeral, it was evidenced
here in the chamber in his relationship with
his comrades and his colleagues. I know
myself I relied on his advice and counsel many
times, and his dry wit, his humor.
But above all, he was a gentleman
and everything that the word "Senator" -
every good thing that the word "Senator"
means. I was proud to know him, and he will
be sorely missed.
ACTING PRESIDENT MEIER: Senator
Hoffmann.
SENATOR HOFFMANN: Thank you, Mr.
President.
I was fortunate enough to have met
Jess before I arrived in the Senate. I was a
City Councillor in Syracuse, and occasionally
we would have meetings in different parts of
the state. And I remember how deeply
impressed I was with the stature and the
knowledge of Senator Present when I met him in
the early '80s, someplace out -- I think it
160
was in Jamestown or someplace else in his
district. He was there with his lovely wife,
Elaine.
And he was interested enough in
what we were doing at local government to have
taken time out of a busy schedule to sit and
visit with us. And by "visit" I mean he was
willing to find out what was happening in each
of our city councils or county legislatures,
what our dreams and visions were. And he had
a helpful word for everybody, based on his own
experience at local government and state
government.
Many of us receive such
invitations, and sometimes we attend. But not
often do we sit and relax and really engage in
the conversation the way Senator Present was
able to. It was as though he could shut out
all the rest of the world and give his
undivided attention and really provide some
genuine assistance to anybody else in elective
office who cared about their constituency.
And he had the ability to discern
whether people cared or they were just going
through the motions. And anybody who knew him
161
well knew that he would not hesitate to make a
comment about somebody who appeared a little
disingenuous. But somebody who was sincere
would have his undying respect and support,
and he would even find ways to reach across
the aisle to offer a gentle assist or a word
of encouragement to somebody for whom the job
was new or the burdens would seem very
difficult.
The very first day that I arrived
in Albany as a Senator was in December of
1984 -- I guess it was January 2nd. We didn't
have a special session. I had just been sworn
in in my district and was arriving here. I
stayed down at what was then the Hilton, two
or three name changes ago. And I walked up to
the Capitol and came rushing in here all by
myself, not sure where I was to go or what
would happen next.
And I saw the sign on the door out
there that said "Senators Only." And I walked
in and thought this might be a good place
where I could leave my coat and then walk into
the chamber. And I walked in, and there were
three very distinguished, gray-haired
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gentlemen, who were clearly Senators, seated
in the Senate lounge. That was Senator
Present, Senator Knorr, and Senator Floss.
I stood there in the door for just
a second, not sure what I was going to do, and
I said, "Is there a place where I can leave my
coat?" And they looked at me, and it was Jess
who said, "Oh, you must be Senator Hoffmann.
It can go right over here." And it was a very
warm greeting.
And from that day forward, I
counted Jess as one of my special friends in
this chamber. I will miss him. I'm fortunate
that several of the people who were trained on
his staff have joined my office. I know
they're here in the chamber today.
And I'd like to remind everybody
that it's the families and the members of the
staffs who enjoy this type of eulogy, and they
understand that we appreciate the hard work
that they put in to make their bosses do the
job successfully. Let us not forget that this
truly is a family, and that we represent all
of the people in this state.
And it takes more than one or two
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good speeches or a couple of great elections;
it's day in and day out, hard work without a
lot of glamor. And that's what Senator
Present was really all about.
I'm fortunate, and I know everybody
else in this chamber feels fortunate to have
had the opportunity to have served with Jess.
ACTING PRESIDENT MEIER: Senator
Rath.
SENATOR RATH: Thank you.
As my colleagues have pointed
out -- particularly, I think, Senator Farley,
when he spoke about Senator Present's
activities with the Local Government
committee -- of course I keep running into
them and remembering so many of the things
that he talked with me about when I first had
the opportunity to be the chairman of this
committee.
And the ARRC, the Administrative
Regulations Review Commission, my first
opportunity to serve in a position of
responsibility here in the Senate. He talked
with me at great length about that because I
was a very new Senator. And I was from
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western New York, so he took me under his
wing, as others have said that he did for them
when they came to this chamber.
But let me say a few other things
that many of you, I'm sure, would not know
about him, or you weren't there that day.
Senator McGee, you might have been there this
particular day. And let me draw a picture
about Jess Present in Allegany State Park.
If you've never been there, you
should visit. It's a huge, beautiful, wild
state park in the southwest corner of the
state of New York, Senator McGee's district,
formerly Senator Present's district. The
memorial at the Quaker -- formerly the Quaker
Store, when I was a little girl growing up and
we would go to the park -- of course, that was
so fitting and so wonderful that it is there
for Jess.
How he loved the park. And one of
my lasting memories of Senator Present will be
on a day when there was a celebration at the
Red House Lake, and we stood outside the
administration building and Jess was outlined,
with the shock of white hair, and looking very
165
senatorial, as he always did, with that
beautiful lake and the mountain in the
background. That will always be my
recollection of Jess Present, physically
standing there -- in his district, with his
friends, in that park that he had come to
protect and known so much about, more than
most people will ever know.
But speaking of protection, that
part of the state has a wonderful saying that
comes from the Indians who are so much a part
of our lifestyle in western New York. And the
Iroquois had a thing that they said about the
Senecas, and the Iroquois Confederacy and all
of the tribes and all of the nations that made
up the Iroquois Confederacy: the far western
end of the state, the Senecas were the keepers
of the Western Door. And Jess Present for
many years was in this Senate the keeper of
the Western Door of the state of New York.
The torch has passed to Senator
McGee as the keeper of the Western Door. Jess
would be proud of you.
And we thank Jess and his family
and all the people that helped make the
166
Western Door of the state of New York safe and
a wonderful place.
Thank you.
ACTING PRESIDENT MEIER: Senator
Volker.
SENATOR VOLKER: I guess that
probably among the members here, other than
possibly John Marchi, I've probably -- well,
maybe Roy. Although I knew Jess Present long
before I was in the Senate -- or the Assembly,
for that matter -- because Jess served with my
father in the Assembly before he came over to
the Senate, which is something I think that
most people know.
I always said that Jess Present -
and a lot of people have said that over the
years -- was that somehow he always looked
like a Senator. I mean, he had that stature
about him and that dignity. And yet he was
soft-spoken, a gentleman, who I also found out
over the years could be a tough guy when he
had to be, both on the floor and -- although
he could be tough and yet he always had the
ability to solve the -- or to assuage people
who sometimes came at him pretty strongly.
167
I think in later years Jess and I
spent a lot more time together talking about
joint district problems and our own, you know,
personal problems, by the way, because I think
it was no secret that he had some -- his
family had some health problems. And he
himself, I think, struggled with a number of
things over the years with his district. And
myself, with some health problems myself, and
he helped me out a great deal over those
years.
It's still hard to believe,
frankly, that the area doesn't have Jessie
around, because from the time that, as I say,
I was a small boy until his late death, Jess
was always there, a symbol, I think, of that
area. And a man, by the way, who not only
represented the area but -- and I know Pat
would agree with this -- but also really
represented the state of New York in a very
real way, because he understood the
differences between areas and yet also that we
that come from western New York or central
New York, or even New York City or
Long Island, recognize that this is a state -
168
and I tell people that they just don't realize
that there's no state in the Union as complex
as New York.
And I could go through the whole
spiel. And Jess used to go through that, and
Jay Rolison, by the way, who was his great
friend. And there was a short period of time
there, a brief couple of years or so towards
the end of Senator Anderson's career, when
Warren had Jess Present and Jay Rolison and
myself and several others who were doing a
great deal, let's just say, together in
running the Senate.
And we were always -- we had great
admiration for Jess's judgment and his ability
to understand where the state was going -- not
only where his region was going, but where the
state was going and what was the best
direction to go in.
I miss him very much. I think
the -- as I'm sure John Marchi would say, the
longer you're here, the longer you realize
that there are wonderful people that pass
through this place. And although it's sad to
think that they're gone, but Jess's memory
169
really will never, as long as we that knew
him -- will never leave this place, because he
remains a part of the tradition of this house.
And he certainly will as long as I'm here.
And I think we should all, I think, admire the
way in which he handled himself.
And to his wife and brothers and
family and children, I guess I can only say we
do miss him, but we were much the better for
having had him here for all those years. Not
only was the Senate much the better, but so
was the Assembly and obviously the whole state
of New York.
ACTING PRESIDENT MEIER: Senator
Marchi.
SENATOR MARCHI: Mr. President,
it's with some pain that I speak to this
subject. I've been here a number of years,
and -- going back to the days of Arthur Wicks
and Senator Mahoney. I don't know if anybody
here can remember that far back. And the
institutional giants that we have had and are
still -- are still flowering in this house, on
both sides of the aisle, have fascinated me
tremendously and many times fills me with
170
nostalgia and sadness.
I see it on a generational basis.
I saw it in Senator Paterson's father and now,
I see it now. You heard from Senator Volker.
I remember his father very well -- not in this
house, but he was -- along with Joe Carlino,
Malcolm Wilson, Gene Bannigan, and a few
others were great people in their own house.
And we have had these institutional
giants coming across the years, the Walt
Mahoneys and the Earl Brydges, the Warren
Andersons. So many marvelous people.
Every day that Jess was here -- of
course, I preceded him by a number of years.
But he was a valued colleague, and I drew
great comfort from his wisdom. It goes beyond
intelligence, beyond knowledge of a subject.
But innate wisdom, where he would go
immediately to the heart of a problem, whether
it was legislative or in life's experience,
and he would go to it very quickly and
accurately.
And I remember the fact that he
would mention that Columbus, Ohio, was just a
few miles away, compared to Albany.
171
And I remember one day he was
chewed out -- and happily I won't mention by
whom, since that member is not here -- but on
the question of whether you could drive to
Albany and not exhaust your -- at least the
short -- the petroleum or gasoline that was in
short supply. And he was berated at one point
because he stopped off in Syracuse and then
made an exchange at a -- some sort of a depot
and then continued on. But driving all the
way from Jamestown -- can you imagine that,
Senator? -- all the way from there, in those
days, and then being berated for it as having
taken some unholy advantage.
But he was not complaining. He was
very tolerant and very understanding of human
nature. And we all learned valuable lessons
of life from him.
So you should indeed feel comforted
by the fact that he was such a comfort and
such a reliably good friend and someone whom
we trusted so completely and had earned our
affection and esteem over the years that he
served with us.
So I join my colleagues -- and
172
they're doing it with greater acuity than I
could possibly muster at this stage, late
stage in life, but they're doing it with the
acuity of contemporaneous judgment on events
and a person that they actually knew right up
until recently.
And so it's a painful exercise, but
one which I willingly embrace because it's
meant so much to me in terms of my own
satisfaction that I draw from my experience in
the Senate. Those giants, the likes of Jess
Present, have enriched my life beyond measure.
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Thank you, Mr.
President.
I know a lot has been said. I
heard some of it on the speaker in the office.
And it's hard to just add to so many good
things that are said about Senator Jess
Present.
But I was reflecting on the first
times that I met Jess, and it was long before
I came to the Senate. When I was on the staff
of Perry Duryea, as his administrative
173
assistant, I would hear the name Senator Jess
Present -- Senator Jess Present was doing
this, Jess Present was doing that -- from the
Assembly people there, talking about the
leadership that he was taking. And I don't
believe at that time he had been in the Senate
for five or six years.
He immediately accounted for
himself in such a way that others looked to
him as the leader. They did there in the
other house, and at that time it was
controlled by the Republicans -- amen -- and
they worked very closely together with the
Senate.
And I thought, when I met Jess, we
were talking about some things, how
knowledgeable he was, how concerned he was,
how committed he was, how dedicated he was.
And I thought -- and I remember it so
distinctly, and it was probably 27 or 28 years
ago -- he, it's been said, looked like a
Senator, he talked like a Senator, he acted
like a Senator. He acted like someone that
really cared about himself and what he was
doing and how he was relating to people.
174
You know, all of us that are in
this chamber and many that are in government
can just look to someone like Jess, who served
with such distinction for so many years. And
I have heard the litany of all the good things
that he did. And here we are, with Jess gone,
and he is now a memory to us. But he is not a
memory in that district. He is part of all
the life in that community, in that part of
the state, and he will always be remembered
here as part of the life in the Senate.
So his family -- I know his brother
Bill is here. I know Elaine couldn't be here,
she's ill. I know his children and his
grandchildren, his brother, everyone wants to
be part of the legacy of Senator Jess Present.
I, for one, have been fortunate and feel
blessed that I had an occasion to serve so
many years with Senator Jess Present.
And to his family, we can only keep
extending our condolences. But when we all of
us go on to play in that bigger Legislature
that's up there, we'll all want people to
remember us in our communities as they today
remember Senator Jess Present.
175
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
DeFrancisco.
SENATOR DeFRANCISCO: You know,
it's sort of an amazing phenomenon when you
listen to everybody speak and so many people
have said "I remember the first time I met
Jess Present."
Think about how many people you
could say that about. Most people you meet
you forget, you work with you forget, you deal
with you forget. But everyone here that's
talked said, "I remember the first time I
really got to speak with and I met Jess
Present." That says volumes about the man he
was. Not only that he looked like a Senator
and acted like a Senator, but he really and
truly cared for everybody he dealt with.
I sometimes have occasion to get
exercised about issues, if no one has noticed.
And I remember the first time I spoke on the
Senate floor, I was exercised about something
that probably was insignificant. And no one
seemed to raise to the issue and join my plea
for whatever it was. And I was sort of
176
disappointed, and I walked out of the
session -- one of -- my first session, I think
it was, session day, or maybe second.
Jess came up to me and said, "John,
you're right." He says, "But it will be
okay." Just calmly, "It will be okay. And it
will work out." And it was his way of telling
me that, you know, maybe I should calm down a
bit, maybe I should handle it in a different
fashion, but that he had confidence in what I
was saying, that I was saying the right thing.
And that's the type of man he was.
And many occasions I would look
back at him and he would smile at me, and I
know what he was thinking: It will be all
right. And that's the calming influence that
he had on everybody, I think, in the Senate.
A wonderful man, someone we were
all proud to serve with, and someone whose
memory will never be forgotten.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: I too would
like to join in the voices about Jess Present.
I had the good fortune when I first
177
got here, and for quite a few years, to have
an office right next door to Jess Present.
And it was always interesting to have the
chance to chat with him in his office. The
people were wonderful, as he was. He usually
had good people around him.
When I first got here, also I was
on Local Government and Agriculture, and I
used to look to Jess -- because when I first
got here, I didn't know a whole lot about
agriculture. And Jess, I would -- I would
vote with him most of the time. And, you
know, it's kind of strange for a Democrat to
say. But I knew that the one thing Jess
Present did in those two areas was do what was
best for the local people. And since his
district was out in western New York and very
similar to mine at the time, with the
exception of the piece of Buffalo that I had,
that I had no trouble following along his
lead, for the most part.
So it was good to have somebody
like Senator Present to rely on, that you know
he would give you good advice. And for those
things, you can never thank him enough.
178
And the fact is, like everybody
else said, he just looked senatorial. I mean,
you know, when you first met him, as everybody
said, you just had the impression, here's
somebody that walks, talks, and looks like a
Senator. I wish he hadn't smoked so much, but
then again, I wish Olga didn't smoke so much.
But you can't have everything.
I just join with everybody else in
passing along to his family that we miss him.
He has obviously left his mark not only in his
district but throughout the state, and he's
certainly left his mark in all of our hearts.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Senator McGee
would like to open up this resolution for
co-sponsorship.
I'm sure everybody would like to be
on the resolution for our good friend Jess.
If you wish not to be on the resolution,
please notify the desk.
ACTING PRESIDENT MEIER: Thank
you, Senator Skelos.
As is our custom, notify the desk
179
if you wish not to be on the resolution.
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 unanimously adopted.
Senator Skelos.
SENATOR SKELOS: If we could
return to reports of standing committees, I
believe there's a report at the desk. I ask
that it be read.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator
Goodman, from the Committee on Investigations,
Taxation and Government Operations, Senate
Bill 6231, by Senator Volker, an act to amend
the Tax Law.
Senate bill reported direct to
third reading.
ACTING PRESIDENT MEIER: Without
objection, the bill will be reported directly
180
to third reading.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could take up the noncontroversial
calendar at this time.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
3, 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, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
14, by Senator Marcellino, Senate Print 5401,
an act to amend the Environmental Conservation
181
Law, in relation to increasing the penalties.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. 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, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
15, by Senator Johnson, Senate Print 5916A, an
act to amend the Environmental Conservation
Law, in relation to extending the expiration
of the authority.
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, 55.
182
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
17, by Senator Kuhl, Senate Print 2765, an act
to amend the Highway Law, in relation to the
temporary discontinuance.
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, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: If I could
interrupt just for a moment, there will be a
meeting of the Crime Victims, Crime and
Corrections Committee in the Majority
Conference Room.
ACTING PRESIDENT MEIER: There
183
will be a meeting of the Crime Victims, Crime
and Corrections Committee immediately in the
Senate Majority Conference Room.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
18, by Senator Rath, Senate Print 2948, an act
to amend the Vehicle and Traffic Law, in
relation to mandatory suspension.
SENATOR DOLLINGER: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
26, by Senator Volker, Senate Print 809, an
act to amend the Penal Law, in relation to
aggravated harassment.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR MONTGOMERY: Lay it
aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
28, by Senator Wright, Senate Print 1232A, an
184
act to amend the Penal Law, in relation to
including possession.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. 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, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
30, by Senator Padavan, Senate Print 2005, an
act to amend the Penal Law, in relation to the
disposal of allegedly stolen motor vehicles.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
185
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
45, by Senator Alesi, Senate Print 4367, an
act to amend the State Administrative
Procedure Act, in relation to job impact
statements.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 9. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
56, by Senator Skelos, Senate Print 587B, an
act to amend the Domestic Relations Law, the
Family Court Act, and the Judiciary Law, in
relation to aiding parents.
ACTING PRESIDENT MEIER: Read the
last section.
186
SENATOR DOLLINGER: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: If we could take
up the controversial calendar, please.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
18, by Senator Rath, Senate Print 2948, an act
to amend the Vehicle and Traffic Law, in
relation to mandatory suspension.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. 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, 55.
ACTING PRESIDENT MEIER: The bill
is passed.
187
THE SECRETARY: Calendar Number
26, by Senator Volker, Senate Print 809, an
act to amend the Penal Law, in relation to
aggravated harassment.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: I believe
Senator Duane is at a committee meeting right
now, and he's asked if we could temporarily
lay aside Senator Volker's bill and my bill
until he returns so he can debate the bills.
So we certainly will extend him that courtesy.
ACTING PRESIDENT MEIER: All
right.
Senator Skelos, that is the entire
controversial calendar, if we temporarily lay
those aside.
SENATOR SKELOS: Is there any
housekeeping at the desk?
ACTING PRESIDENT MEIER: No,
there is not.
SENATOR SKELOS: Well, then,
we'll stand at ease pending the return of
Senator Duane.
188
ACTING PRESIDENT MEIER: All
right.
Both bills will be temporarily laid
aside, and the Senate will stand at ease.
(Whereupon, the Senate stood at
ease at 4:02 p.m.)
(Whereupon, the Senate reconvened
at 4:16 p.m.)
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: If we could
return to the controversial calendar now -
Senator Duane is back from the committee
meeting -- and call up Calendar Number 26,
Senate 809, by Senator Volker.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 26.
THE SECRETARY: Calendar Number
26, by Senator Volker, Senate Print 809, an
act to amend the Penal Law, in relation to
aggravated harassment.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Explanation,
189
please.
ACTING PRESIDENT MEIER: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Certainly.
Mr. President, this is a rather
simple bill. It adds to a legislation that
was passed in the last couple of years and
signed into law which would set up a class E
felony for aggravated harassment of an
employee by an inmate or employee of the
Parole Department and the Office of Mental
Health. It would add the Probation Department
to those provisions.
And currently, if an inmate, with
intent to harass, annoy, threaten or alarm an
employee of the Division of Parole or Office
of Mental Health, caused the employee to come
into contact with blood, seminal fluid, urine,
or feces by throwing this material, then that
person could be subject to a class E felony,
which is the lowest-level felony.
And as I say, this would add the
Probation Department to that group.
SENATOR DUANE: Would the sponsor
yield to some questions?
190
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: Senator
Volker, do you yield for some questions?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you very
much. Through you, Mr. President.
In this legislation, are we looking
into the thoughts of the inmate in terms of
what he's -- what the plan of his action is in
throwing feces?
SENATOR VOLKER: No, we're not.
It doesn't matter what -- really what his
thought is. It's -- the intent when material
is thrown at a person really is the criteria.
And let me point out, in keeping
with last year's debate on this, Senator, that
this is the lowest-level felony there is. And
these are inmates. And one of the things
that's been said is that maybe we should make
it a misdemeanor.
The problem with making felons
subject to misdemeanors is it doesn't work
very well. If you're going to charge or give
191
a crime to a person who's already convicted of
a felony, you almost have to have a felony.
And this is the lowest-level felony.
The reason I'm pointing that out to
you is I know that was part of the discussion
last year. One of the things about New York
City that we learned is if you charge a
misdemeanor in New York City, that's like -
it just doesn't work, because people don't pay
attention until you make it a felony.
So the answer is no, it's not a
matter of thought, it's a matter of action.
And the intent is shown by the action.
SENATOR DUANE: If the sponsor
would continue to yield.
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Why, certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm going to put
out a scenario and ask what would happen under
this legislation.
If an inmate threw his feces and
192
hit either just a member of the public who
happened to be in the probation office or
another inmate, the penalty would be less; is
that correct?
SENATOR VOLKER: That's true. It
would probably be considered to be harassment,
which would be a violation. But the chances
of that happening are very slim.
Maybe another inmate, that's
possible. Although the penalty for that might
be even greater than a class E felony, if you
know what I mean.
But what we're trying to do here is
deal with people that come in contact with
inmates on a regular basis. I almost got into
this category myself on several occasions.
Once I did duck, in fact, and -- and avoided
the embarrassment of that when I was in a
security cell.
But the answer is yes, generally I
suppose if it would happen, it would be simple
harassment. What we're trying to do is to
deal with this kind of a situation and make it
a more severe punishment to avoid it from
happening.
193
SENATOR DUANE: If the sponsor
would continue to yield, Mr. President.
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: We are saying,
though, through this legislation that certain
classes of people do need special
protection -- for instance, people who work as
probation officers.
SENATOR VOLKER: Special
protection? I think what we're saying is that
people that are likely to come in contact with
the types of people we're classifying -- not
thought, by the way. We're classifying actual
actions and trying to deter their actions.
And that's what -- because the other people
are not likely to even come in contact with
them. And that's why we're doing this.
SENATOR DUANE: Through you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT MEIER: The
194
sponsor yields.
SENATOR DUANE: But we are
creating a special penalty for a special
category of crime to a special group of
people.
SENATOR VOLKER: Not a special
category of crime. We're creating a special
penalty for people who are likely to come in
contact with people who are already felons and
who may create a problem that -- you might, by
the way, say that if there were people of any
different groups that came to the prison
system. That doesn't happen. We're talking
about people that actually come in contact
with these people.
And I know what you're getting at,
Senator, but it's an entirely different issue.
But the answer is yeah, they're a
special class, all right. They're the class
that actually goes into these types of
situations and is compelled, in a sense, by
law to do it. And therefore, we're trying to
protect them from this kind of harassment.
SENATOR DUANE: Through you, Mr.
President.
195
ACTING PRESIDENT MEIER: Senator
Duane, are you asking Senator Volker to
continue to yield?
SENATOR DUANE: Yes, please.
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Sure. Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
I acknowledge that what may look
like apples to me may look like oranges to the
sponsor. But if we can create a special
category protecting probation officers, then
I'm wondering how the sponsor feels about the
situation I'm about to put out.
Just this past year, at Skidmore
College, there was a hate crime incident in
which feces were smeared on the car of a
student who was perceived to be a lesbian.
And I'm wondering why it is that we are not
protecting them from this kind of incident.
SENATOR VOLKER: Senator, I don't
think that you can categorize -- and I don't
think you should categorize graffiti -- and
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that's part of the problem with the so-called
hate crimes, is the federal people use
graffiti as a hate crime, which is why the
numbers on hate crimes look bigger than they
really are.
Senator, I think everyone should be
protected. But unfortunately, there are some
people that have been involved in the
bias-crime issue that don't believe that. And
I think that's -- that's a problem.
But, Senator, it's a big difference
between actually throwing something that could
be very harmful to somebody and indicating
something that may even be a joke, by the way.
Although I don't think it is a joke, but some
people think it is. Because as you know,
graffiti in certain places is used for all
sorts of things. To harass, annoy, yeah,
maybe. But also to, in many ways -- and
that's where the thought comes in, because in
that case I suppose you would have to use
thought.
Throwing stuff directly at a person
is not -- it doesn't take any thought. It is
a -- and it can be a serious problem, in any
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case.
So I think the answer is it is a
different situation. And I think, frankly,
you could argue that maybe there should be a
higher penalty for anybody that's in that kind
of situation that you talk about.
But we have had some difficulty in
getting people in the other chamber to raise
the penalty for graffiti for years. This
house has passed legislation for years and
have had great difficulty with that, just as
we've had great difficulty with assault, with
upgrade of assault and a whole series of other
areas. That could be used, by the way, and
you could argue, to protect some of the very
individuals that you would like to protect.
SENATOR DUANE: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: Thank you very
much.
I believe that throughout the
session this year we'll just have a -- you
know, a huge number of feces and urine bills.
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And I've raised the issue of trying to combine
them all into one big omnibus feces and urine
bill so that we don't have to go through them
bill by bill. That's not really under my
control, so we'll just have to see them come
forward as they come forward.
But in a legislative body where we
debate issues like the throwing of feces -
which I also believe is a mental health issue
and not a criminal justice issue and should be
looked at in a mental health light and not a
criminal justice light, that we debate those
issues. And last year we debated the issue of
Buster's Law, which I was for, because I think
it's a terrible thing to torture animals.
But I also think that it's a
terrible thing to commit hate crimes against
human beings based on their religion,
ethnicity, sexual orientation, et cetera, and
that if we can debate throwing of feces and
urine at different categories of employees, we
could certainly have a debate on this floor
about a bias-crimes, hate-crimes bill.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
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Montgomery.
SENATOR MONTGOMERY: Yes. Mr.
President, I would like to ask if the sponsor
would yield for a couple of questions.
SENATOR VOLKER: Sure.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Thank you,
Senator Volker.
I just wanted to ask you, one, how
many cases are we talking about? Do we have
some record of how frequently this occurs in
the 69 or 70 facilities throughout the state?
SENATOR VOLKER: I really don't,
Senator. But I do know, and from personal
experience, that it happens. And I think
there are several Senators here, by the way,
who can attest to that, because we've been
witness to it.
We are told that, unfortunately -
and quite a bit of it, by the way, is in the
secured areas; that is, the locked -
keep-locked areas. But it happens
occasionally, and it's just something that has
created some concern.
200
And this bill didn't come,
obviously, just from me. It came because the
Probation Department has asked for it and
because some of their people apparently have
been subjected to it.
I don't think it's in epidemic
proportions, but I think it's something which
is common enough to create a problem, and that
we're trying to deal with that problem.
SENATOR MONTGOMERY: And it does
not happen in the context of an inmate or an
inmate who is now on parole, it happens only
in the facilities?
SENATOR VOLKER: This is only a
facility bill. It has nothing to do with -
SENATOR MONTGOMERY: So these are
probation people who go into the facilities.
SENATOR VOLKER: Yes. Exactly.
SENATOR MONTGOMERY: Last year, I
think last session, I believe it was, or
probably a number of sessions prior, we did
legislation which in fact extended the time of
a person who was already incarcerated if there
was another charge against them.
How would that -- what would that
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mean to -- based on this bill, to an inmate is
charged with this particular -
SENATOR VOLKER: Well, Senator,
actually, that legislation, whether we did
that or not, it wouldn't matter. This -- if
you are convicted of a class E felony,
whatever your -- the charge is against you,
whatever, you know, your sentence is, that
would be added on to your sentence.
Of course, the judge could -- I
suppose the judge could run it concurrently.
And the reason for that, by the way, would
be -- I don't have to tell you that that would
impact on your parole.
The previous legislation would not
really matter. This bill is what matters. If
this became law, then a person who is
convicted of this action would be subject to
an additional sentence which could be run
concurrently, depending on the judge, or could
actually be run consecutively, which would
mean, obviously, that that would extend the
prison term of that person who was in jail.
SENATOR MONTGOMERY: Mr.
President, I have to accept Senator Volker's
202
explanation. However, it was my understanding
that it could not run concurrently, based on
the legislation that we passed. But I'm not
going to question that.
I have another kind of question,
however -
ACTING PRESIDENT MEIER: Senator
Volker, do you continue to yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT MEIER: Senator
Volker yields.
SENATOR MONTGOMERY: Thank you.
Senator Duane asked about what the
inmate might be thinking. It's my
understanding, based on the statistics of the
DOCS commissioners, that somewhere between 20,
25 percent of the inmates in our facilities
could be classified as mentally ill. If that
is in fact the case -- and we have also
included in your -- in this bill it includes
inmates or respondents -- which, as defined in
this bill, means a juvenile in a secure
facility.
SENATOR VOLKER: Mm-hmm.
SENATOR MONTGOMERY: So we're
203
talking about teens as well as older adults
who are in those facilities. Many of whom
may, very possibly, be mentally ill.
SENATOR VOLKER: Mm-hmm.
SENATOR MONTGOMERY: So the
legislation is not, in fact, to try to -- to
provide some sense of a way of treatment for
mental illness but, rather, simply to add on
an additional number of years of
incarceration; is that -
SENATOR VOLKER: No. If the
person is actually mentally ill -- although if
they're officially mentally ill, I don't think
that's what Corrections is saying.
Corrections is saying if they have some mental
illness, that doesn't necessarily mean -
because if they're actually mentally ill, they
shouldn't be in the corrections facility to
start with.
But you cannot convict someone -
this is statute. If the person is found to be
mentally incompetent or mentally ill, you
can't convict them of anything in this state.
So this bill, although it's a class E
felony -- I'll be the first to admit to you, I
204
guess it's one of the problems. If somebody
is arrested for this, obviously in prison, and
it's found that the person is mentally ill,
you can't convict them. Because our law would
take care of that.
So we're not talking about people
who, if they're declared to be mentally ill,
then they'll have to have mental treatment.
And I'll be the first to admit to you that
that's a problem. Because we do have mental
facilities connected with our prisons now, and
in fact people are treated as part of those
facilities.
So -- and the question was asked of
me, what happens if some of those people throw
something? Well, it's a big problem, because
I don't know how -- you probably couldn't
convict them. But at least you have the
threat of it there.
But for those people who are
either -- I wouldn't say mentally ill, because
if they're mentally ill, officially mentally
ill, they probably shouldn't be in that prison
to start with. But even mentally deficient
people, or with some sort of mental illness,
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in all honesty the likelihood of ever
convicting them is virtually nil, because
certainly that would be a defense.
SENATOR MONTGOMERY: Thank you.
Mr. President, briefly, on the
bill.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: I want to
thank Senator Volker for his patience.
I just want to say that I think
Senator Volker's vision of the criminal
justice system and the prison system is the
ideal situation which we would all hope that
exists, but we all, on the other hand, know
that it does not exist. And unfortunately,
there are a large number -- there's a large
percentage of inmates who are in fact mentally
ill -- though they may be criminally mentally
ill, they are. And especially as it relates
to young people.
And we know that we are seeing more
and more young people, young men and women,
going into prison at the age of 16, 17, 18,
faced with possible life imprisonment or very
206
long prison terms. And obviously it must be
very difficult to maintain sanity and to
maintain self-control and discipline if you
are a 17-year-old, young, primarily
African-American or Latino male faced with an
extended sentence based on a bad judgment that
you made when you were out.
And so certainly I don't want
Senator Volker or any other person to be
confronted with having feces or urine or
anything else thrown in their face. But I
certainly -- I don't want to -- I cannot
support this legislation because it doesn't,
in my mind, speak to what the problem really
is that drives this kind of behavior. And
until we do that, this bill really is not
going to help us.
So -- and I would urge that my
colleagues who have any sense of consciousness
about what is happening in the penal system in
our state and across the nation, I would urge
them to join me in voting no on this
legislation.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
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Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Through you, I have a comment
for the sponsor, if he'll yield graciously to
one more thing.
ACTING PRESIDENT MEIER: Senator
Volker, will you yield?
SENATOR VOLKER: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: I mean, I
support this legislation. I was very
concerned in your colloquy with Senator Duane,
though, about -- because I do believe we are
going to address the issue of bias-related
violence this session. I hope we will. I
believe we will.
And I just hope that -- I don't
know that I heard you correctly, but I think
that vandalism generally and graffiti in
particular are among the worst kinds of hate
crimes, because the punishment is so light.
And I would urge you to look at the situation
we're faced with in New York City, in Brooklyn
and Queens, where we have Catholic statues,
208
statues of saints being decapitated and
defaced. It's a completely different kind of
crime from having a fraternity prank where you
go do something to the statue of Horace
Greeley or Teddy Roosevelt, to decapitate a
statue of a saint and leave a note saying "The
Pope is Satan."
And I'd urge you that vandalism and
graffiti are -- do belong in a
bias-related-violence bill, and I hope that
you will bring that through the committee and
to the floor this year, and I hope that will
be in it.
SENATOR VOLKER: Mr. President,
can I just respond to that?
ACTING PRESIDENT MEIER: Senator
Volker.
SENATOR VOLKER: Mr. President,
very quickly, I don't think we need a
bias-related crime bill to do that.
The point I was trying to make is
that, on behalf of Senator Maltese, Senator
Padavan, myself, and a number of people who
have been sponsoring graffiti bills here for
years, you know, whether it's bias or whatever
209
the real reason for it is, it's outrageous.
And I agree with you, I think it's
time that we did something about that. The
problem is not then -- and I don't -- you
know, I'm not one of those people that points
around and plays games with issues. But the
fact is the fact. And that is, I agree with
you 100 percent that I think it's outrageous
what is going on with certain of the vandalism
that's going on and the graffiti. And I think
we should upgrade the penalties for that in
general, because I think that's the way to
deal with it.
The problem is -- the problem with
bias crime always has been and remains the
thought-police kind of thing, and you're going
to get into all kinds of problems. But I
don't want to argue that issue.
But I'm going to say to you that I
totally agree with you. I'm not going to tell
you that the graffiti -- and those bills, by
the way, are coming. I'll guarantee you.
Because we pass them every year, but we have a
devil of a problem with getting them through
the Assembly.
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ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. 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. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT MEIER: Senator
Duane, why do you rise?
SENATOR DUANE: Thank you, Mr.
President.
I was wondering if I could be
recorded in the negative on S2948 and S4367.
I was out of the chamber when they came up.
Due to the largesse of this body, I was
permitted to do that, so -
ACTING PRESIDENT MEIER: Senator
Duane, we have Senate 2948. What was the
other, please? 43 -
SENATOR DUANE: 4367.
ACTING PRESIDENT MEIER: Thank
211
you, Senator.
Without objection, Senator Duane
will be recorded in the negative on Senate
Bills 2948 and 4367.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
56, by Senator Skelos, Senate Print 587B, an
act to amend the Domestic Relations Law, the
Family Court Act, and the Judiciary Law.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Skelos, an explanation has been requested.
SENATOR SKELOS: Thank you, Mr.
President.
This bill, which passed the Senate
on the noncontroversial calendar in 1998, and
with one negative vote -- Senator Duane -- in
1999, is introduced at the request of the
Office of Court Administration, to create a
statewide program to permit -- and I underline
the word "permit" -- trial judges to provide
parents with information and education, as
they proceed through their separation and
212
divorce, on how it may impact children and
also what they can do to help their children
through this process.
A board will be set up to develop
curricula for parental education and awareness
programs, to certify such programs, and to
assure their continuing quality and
effectiveness.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Skelos would yield for
a few questions.
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Thank you, Mr.
President.
The Parental Education Awareness
Board which has been set up includes members
of the -- it has an appointment by the
Speaker, the Majority Leader, the presiding
judge of the Court of Appeals, but does not
have any provision for appointments by either
213
of the Minorities in the Legislature.
I wonder if Senator Skelos would
kind of think that over before the bill
finally gets passed.
SENATOR SKELOS: Well, this
was -- I guess the Office of Court
Administration felt that 13 board members
would be sufficient.
SENATOR PATERSON: Thank you, Mr.
President. If the Senator would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Skelos, do you continue to yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Well, one
point I would make, Senator, is right now it
probably would -- of the 13 board members, it
would provide for equal representation, since
the two major parties in New York State are in
the majorities in the two houses.
But if there were ever to be a
change and you had one party controlling both
214
houses, then the 13 board members wouldn't
really in any way reflect the opinions that
might be felt at least by voters around the
entire state. And so that's why we thought
that -
SENATOR SKELOS: I think the -
if you read the legislation in terms of the
type of individuals that we're looking to have
on this board, I think their desire would be
to come up with a curriculum that would be
positive in terms of educating children as
they go through the very difficult process of
their parents getting divorced.
SENATOR PATERSON: Very good,
Senator.
A question that I have related to
the actual choice that one might have to make
about these mandatory classes. For instance,
if the person is also mandated federally to
attend classes or to work as, say, part of a
workfare program, a number of these
individuals that would qualify could
theoretically be in that situation.
How do they make the choice between
the classes that the court is mandating that
215
they take and the fact that they could lose
basically their jobs if they don't go to them
under the workfare program?
SENATOR SKELOS: I think what
we're missing with this legislation is the
fact that discretion is given to the judge.
There's a great deal of discretion provided to
judges when we deal with child custody,
with -- during a separation or a divorce
proceeding.
And I believe that the judges that
we have in this state would use this
discretion wisely, not to hurt any one
individual, but rather to look at what is in
the best interests of the children that we're
all trying to protect.
SENATOR PATERSON: Thank you,
Senator.
Mr. President, if Senator Skelos
would continue to yield.
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Related to the
216
judicial discretion that you just mentioned,
how far-reaching is the discretion when it
comes to the parental education classes
where -- particularly in cases of domestic
violence, there might be some apprehension on
the part of the victim -- who we would presume
to be the woman -- about attending the same
class with the victimizer, who in many
respects, because of their losses in other
court proceedings, according to a number of
statistics that have been garnered through
study of these types of situations, that it's
the contact and the counseling that the
perpetrator is actually seeking by even
wanting to come to some of these classes,
whereas the individual who was previously
victimized is in a sense being further
subjected to confrontation with the same
individual that they escaped from by
divorcing.
SENATOR SKELOS: Well, on page 2
of the legislation I think it does handle that
by saying they would not necessarily be
required to attend these courses. And again,
we're using the discretion of the judge.
217
SENATOR PATERSON: Thank you.
Final question, if Senator Skelos
would be willing to yield.
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: But it's
exactly the judicial discretion that I'm
somewhat worried about, Senator. Because in
these particular cases, what we have installed
into the legislation is a punitive action, one
that actually seeks to diminish the
opportunity of one of the parties if they
don't attend these classes.
And I wondered that giving that
kind of teeth to this legislation -- in other
words, if you wanted to leave it to the
judge's discretion exactly what to do, that's
one thing. But here there's a deliberate
attempt to install an action that would inure
to the detriment of one of the parties if they
don't attend the classes, when the reason that
they might not attend the classes is the exact
same reason why they sought a divorce.
218
SENATOR SKELOS: Again, this is
discretionary on the part of the judge.
SENATOR PATERSON: Thank you,
Senator Skelos.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: The best
interests of the child is probably an
expression most used in a variety of
jurisdictions -- and one that's even being
played out on our national scene right now -
that often accommodates the needs, even on
both sides, of the agendas of individuals,
more so than really what the actual best
interests of the child is. And sometimes it's
hard to determine what the best interests are.
And last year Senator Duane was the
only member of this chamber to vote against
the bill, but he pointed out and really made
me think about this whole situation where we
impose certain actions on parties who have
already been through a very, very difficult
period in their lives. Putting them under
this kind of stress and tension might in many
219
ways move to the detriment of the same
children whose benefit it is that we seek to
protect.
And so I really am just admonishing
all of my colleagues that by voting for this
legislation, our intention may be to actually
heal the situation, but in many respects, and
if you talk to the National Organization of
Women and talk to some of the women that have
been involved in these types of situations, it
often further subjects them to really some of
the same mistreatment that put them in the
position of having to break up their marriages
in the first place.
Children certainly -- are certainly
in need of a functioning relationship between
their parents when their parents separate.
Those are always the best situations. The
most desirous would be that the parents not
separate at all. But if the circumstances of
life come to pass that that is the best end to
a particular situation, then we hope that as a
government that we would display the same type
of sensitivity toward these individuals that
we ask of them when it applies to their
220
children.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: I have
similar problems with this bill. I guess
maybe I wasn't in the chamber when it came up
last year, because I think I probably would
have voted against it at that time.
I also have a concern about having
a board that has 13 members, seven of which
are appointed by the Governor. I think there
could be a more even distribution between the
courts and the Legislature and the Executive.
The discretion of the judge is also
of concern to me. It's not that I don't
believe that the intentions are probably good,
to try and alleviate the fear of children in a
divorce setting. But it's -- the possibility
that there would be punitive measures against
one party because they couldn't appear and the
judge is the sole discretion here, it's -- it
is a concern.
And it is a concern also that
people who are seeking a divorce, they really
haven't done anything against society.
221
They've not commited a crime. I mean, for
them to be told that they must participate in
something, court-ordered, it makes it sound
like there's been a crime committed here. I
think it's punitive even though, as I said, I
think the alleviating of children's fears is
good.
If this was offered as some kind of
a community service rather than a
court-appointed -- I think it would be much
more acceptable to me. But I'll be voting no,
even though I do understand that there are
certain values that you are trying to uphold
here that are good.
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. I would just like to ask the
sponsor if you would yield for a couple of -
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield for a question?
SENATOR SKELOS: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: Yes, thank
222
you.
Senator Skelos, on this -- on page
2 of the bill, line -- starting at line 33, it
states "In the event that a person who is
required to attend a parental education and
awareness program fails to do so or fails to
complete such a program, the court may
consider that as a relevant factor when
determining whether the person is acting in
the best interests of the children, or (B) may
stay any relief to which such a person may
otherwise be entitled in the underlying action
or proceeding until such time as the person
completes the program, or (C) takes such other
action as may be authorized by law."
My question to you is, what does it
mean to stay any relief to which the person
may otherwise be entitled, and what are the
other possible actions authorized by law that
a judge may take against a person who is
unable to complete or participate in this
awareness program? Is this not mandatory?
Does this -- do these -- does this
section of the legislation indicate that it is
in fact mandatory? And, if so, if a person
223
does not do it, what do they lose and what
other actions are authorized by law?
SENATOR SKELOS: Well, again,
this is in the discretion of the judge. And
there will be a curriculum that's established
by the board. If the judge feels that that is
the best interests of the children, to have
the parents attend this course, then, for
example, if a father who has visitation rights
refuses to attend, the judge can say, "You
lose your visitation rights until you attend
this course."
And it could be taken into account,
as so many things can be taken into account,
as to what is the best interests of the child.
SENATOR MONTGOMERY: What does it
say to any financial issues related to the
underlying case, which is the divorce?
SENATOR SKELOS: Number one, it
wouldn't be child support. But it could be
temporary alimony or temporary support.
SENATOR MONTGOMERY: My
assumption is the underlying action is a
divorce. The divorce involves children.
SENATOR SKELOS: Right.
224
SENATOR MONTGOMERY: And the
divorce also, since it involves children,
would automatically -- my assumption is
naturally would involve financial support for
the children.
SENATOR SKELOS: Yes.
SENATOR MONTGOMERY: My question
to you is, is that part of what is considered
to be relief to which you would otherwise be
eligible?
SENATOR SKELOS: No. And it's
not the intent of OCA. It's certainly not the
intent of the sponsor.
SENATOR MONTGOMERY: And other
actions we're not -- these are -- this is
solely at the discretion of the judge, making
the decision?
SENATOR SKELOS: Yes.
SENATOR MONTGOMERY: My last
question, Mr. President, through you -
ACTING PRESIDENT MEIER: Senator
Montgomery, do you wish Senator Skelos to
yield?
SENATOR MONTGOMERY: Yes. Yes, I
do.
225
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield for a question?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Senator
Skelos, Senator Oppenheimer has talked about
the Governor having seven appointees. I want
to ask you -- and I raised this in the
committee, I raise it again with you -- that
the Governor has seven appointments, the
Legislature has four appointments. So it
occurs to me -- and the judges -- the Chief
Judge has two.
SENATOR SKELOS: OCA has two
appointments.
SENATOR MONTGOMERY: So we have
only two representatives, two votes out of the
13, that reflect the people who are actually
going to be involved in making these
decisions. And the rest of them are basically
political appointments.
SENATOR SKELOS: Well, I think
that you're looking at this perhaps from a
226
partisan point of view.
SENATOR MONTGOMERY: Yes, I am.
SENATOR SKELOS: Whereas I don't
think it should be looked at as a partisan
point of view.
When it comes to the best interests
of children and protecting children, I don't
believe, whether in this house or in the other
house, that it's a Republican or a Democrat
issue. It's an issue of what's in the best
interests of the children.
And I believe that no matter who
the Governor is, who the Chief Judge is,
presently having been appointed by Mario
Cuomo, they will do, in establishing this
board, what is in the best interests of the
children.
SENATOR MONTGOMERY: All right.
In relationship to that -
ACTING PRESIDENT MEIER: Senator
Montgomery, do you wish the sponsor to
continue to yield?
SENATOR MONTGOMERY: Yes, please,
Mr. President.
ACTING PRESIDENT MEIER: Senator
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Skelos, do you yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: With this
board that we have created here, with these
appointments, notwithstanding the political
aspect of that, what goes into the curriculum?
What kind of curriculum are we talking about?
Is there -- does the bill in any way establish
some kind of standards as it relates to what
we're going to see forthcoming from this
board?
SENATOR SKELOS: The curriculum
will be established by the board.
SENATOR MONTGOMERY: By the
board, okay.
SENATOR SKELOS: By the board.
SENATOR MONTGOMERY: Okay. All
right.
Thank you, Mr. President. Just
briefly, on the bill.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
228
SENATOR MONTGOMERY: Yes. I
think there's a lot of -- I understand the
intent of this, and obviously we all are very
supportive of any measures that we can come up
with to preserve families. And I know that
that's what Senator Skelos' intent is, and to
protect the interests of children when
families are unable to continue as a unit.
However, I do have some concerns
that there are some loopholes here where we
could very well end up with a situation where,
depending on the temperament of the particular
judge, we could have financial support
withheld. That's not exactly specified
specifically in this legislation. And I'm
just very uncomfortable with that.
The other issue that I'm very
uncomfortable with, and as Senator Skelos has
confirmed, we have a board that is essentially
a politically appointed board. Because we
have the Governor's appointees, over half, and
basically most of the rest of the appointees
are also political appointees, because they
come out of either this house or the other
house.
229
And so we can't back away from the
fact this this is a politically appointed
board. But in the hands of this board we have
put the authority to develop a curriculum
which is supposed to counsel families in very
difficult situations. So I have a major
problem with that.
And for those reasons primarily, I
voted no in committee and I will vote no on
the floor today.
Thank you.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: I have one
question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STAVISKY: On page 2,
Section 3, lines 24 to -- well, 24 and beyond,
it says "In determining whether to require
persons to attend a Parental Education and
230
Awareness Program, a court shall consider all
relevant factors."
What is there to determine -- what
is there with a judge determining the relevant
factors as compared to another judge making
the same determination?
SENATOR SKELOS: Every
determination a judge makes is different. So
the judge, from his experience or her
experience with this case, may say, "I feel
it's in the best interests of the child that
parents go to this course." I mean, it's what
the judge thinks would be in their best
interest.
SENATOR STAVISKY: Will that be
the same in each jurisdiction?
SENATOR SKELOS: Well, the board
is a statewide board which will establish the
curricula for the entire state.
SENATOR STAVISKY: Mr. President,
I have one more question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you continue to yield?
SENATOR SKELOS: Yes.
ACTING PRESIDENT MEIER: The
231
Senator yields.
SENATOR STAVISKY: The memo says
that the measure will "permit" trial judges.
Could you tell us the difference between this
permissive section and the requirement? I
know what "permit" means, I -
SENATOR SKELOS: It allows them
to do it in their discretion.
SENATOR STAVISKY: In other
words, it does not have to be the same in
other -- in all cases?
SENATOR SKELOS: No, it means
that a judge in one case may decide it's
appropriate and in another case may decide
it's not appropriate.
SENATOR STAVISKY: Thank you.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Mr.
President, if the sponsor would yield to one
question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield?
SENATOR SKELOS: Yes.
ACTING PRESIDENT MEIER: The
232
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
My understanding under this bill is
that the board will be empowered to establish
a process for the certification of parental
education and awareness programs.
My question is, would any
preexisting program that may have been
operating -- as is referenced by the memo of
the Family Service Agencies, that some groups
have been trying to start programs like this
previously -- would these programs all have to
get certified under the board under the system
set up?
SENATOR SKELOS: The board would
have to certify it.
SENATOR SCHNEIDERMAN: Okay.
Thank you.
Thank you, Mr. President. On the
bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: We've
been -- I've been somewhat conflicted about
this legislation because I know the intent is
233
very good and I think there are programs, such
as those supported by the Family Service
Agencies, that provide a great service here.
My concern, though, is about moving
from the level at which we have good community
agencies setting up voluntary programs that
judges recommend that people participate in to
the situation where we all of a sudden have a
Parental Education and Awareness Board that's
kind of like the Big Brother of what you
should do once you're divorced.
I mean, having gone through this
difficult process myself, I assure you there's
some very weird ideas some people have, from
my point of view, about what you should do
with your kids once you're divorced. And some
of my ideas they may perceive as weird.
Having a Big Brother agency that would
essentially constrain the existing programs I
think should be a big concern.
I would much rather see something
to provide more resources and encourage the
development of the programs referenced in the
Family Service Agencies memo than have
something that constricts the creative
234
abilities and the flexibility of this program.
Because the -- we keep talking
about the discretion of the judge. The one
thing the judge will lose discretion on under
this legislation is you will not be able to go
outside of the curriculum certified by this
Big Brother board that will control our, you
know, teaching about what it is to be a
divorced parent in this state.
And I think that this is an area
where there's sufficient differing points of
view that that's something we should be very
concerned about. And I know that, you know,
those of us who are against Big Government
dictating ideas and morals to people are often
concerned about those sorts of issues.
So I'm constrained to vote no under
those circumstances.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, just -- would the sponsor yield to
just one question? One thing occurred to
me -
ACTING PRESIDENT MEIER: Senator
235
Skelos, do you yield for a question?
SENATOR DOLLINGER: -- during the
course of the bill, and I just want to clarify
it.
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: I think you
told Senator Montgomery that nothing in this
bill would interfere or be interpreted to
interfere with the requirements of one parent
to make their child support payments. If, for
example, a spouse who had custody of the
children and was the recipient of the child
support, if they failed to attend this board
program, the other spouse wouldn't be allowed
to suspend their child support.
My concern is that -- and I'm
not -- I know there are a lot of people
troubled by the board and what this curriculum
would be. That doesn't trouble me as much.
My only concern is that I would hate to think
that a noncompliant parent would be able -
would in essence lose their child support,
236
which is for the benefit of their children,
because they're noncompliant with going to
these programs.
I'm just concerned -- I thought you
told Senator Montgomery -
SENATOR SKELOS: They would not
lose child support.
SENATOR DOLLINGER: Okay. I just
want to make that clear.
Through you, Mr. President, on the
bill.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I voted for
this last time. I understand the concern of
my colleagues about the board. I'm not quite
as concerned about who the Governor is and who
they appoint. I assume we have to come up
with some reasonable program.
I think the Family Service Agencies
support this. And I think Senator Skelos -
I'm going to vote for this, but I just wanted
to be absolutely sure and he's given me his
assurance that there's nothing that the
noncompliant parent will do that will
237
interrupt the stream of child support
payments. Because those payments, although
they may be directed in the hands of a
noncompliant parent, nonetheless, they are for
the benefit of the children.
And the one thing I don't want is
that if there's a dispute after a divorce and
one of the parents who has custody of the
children decides they're not going to attend
the program even in the face of the court
order, or they abscond or just are
noncompliant, I don't want their children to
be punished.
As I understand the bill, it won't
allow that under those circumstances. I'm
going to vote in favor of it.
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 56 are
238
Senators Duane, Goodman, Meier, Montgomery,
Oppenheimer, Paterson, Rosado, Schneiderman,
Smith, and Stavisky. Ayes, 46. Nays, 10.
ACTING PRESIDENT MEIER: The bill
is passed.
SENATOR SKELOS: Mr. President,
is there any other housekeeping at the desk?
ACTING PRESIDENT MEIER: The desk
is clean, Senator Skelos.
SENATOR SKELOS: Mr. President,
in name and in memory of Senator Jess J.
Present, there being no further business to
come before the Senate, I move we adjourn
until Wednesday, January 19th, at 11:00 a.m.
ACTING PRESIDENT MEIER: In name
and memory of Senator Jess J. Present, the
Senate stands adjourned until Wednesday,
January 19th, at 11:00 a.m.
(Whereupon, at 5:05 p.m., the
Senate adjourned.)