Regular Session - January 24, 2000
310
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 24, 2000
3:15 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.
Will everyone please rise and
repeat with me the Pledge of Allegiance to the
Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
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,
Friday, January 21st, the Senate met pursuant
to adjournment. The Journal of Thursday,
January 20th, 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 Morahan,
from the Committee on Veterans and Military
Affairs, reports the following bills:
Senate Print 681A, by Senator
Larkin, an act to amend the Real Property Tax
Law;
1479B, by Senator Wright, an act to
amend the Real Property Tax Law;
4866A, by Senator Meier, an act to
amend the Town Law;
And 5842, by Senator Morahan, an
act to amend the Tax Law.
Senator Meier, from the Committee
on Social Services, reports the following
bills:
863, by Senator DeFrancisco, an act
to amend the Social Services Law;
3237, by Senator Farley, an act to
amend the Social Services Law;
5800, by Senator Morahan, an act to
amend the Social Services Law;
And 5853, by Senator Meier, an act
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to amend the Social Services Law.
Senator Hoffmann, from the
Committee on Agriculture, reports the
following bills:
1725, with amendments, by Senator
Kuhl, an act to amend the Agriculture and
Markets Law;
3541, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
4265, by Senator Hoffmann, an act
to amend the Agriculture and Markets Law;
And 6175, by Senator Hoffmann, an
act to amend the Agriculture and Markets Law.
Senator Farley, from the Committee
on Banks, reports the following bills:
3554, by Senator Farley, an act to
amend the Banking Law;
4704, by Senator Farley, an act to
amend the Banking Law;
And 5281, by Senator Farley, an act
to amend the Banking Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: All
bills will be reported directly to third
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reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
On behalf of Senator Maltese, I
move that the following bill be discharged
from its respective committee and be
recommitted with instructions to strike the
enacting clause: Senate Bill Number 4445.
ACTING PRESIDENT MEIER: So
ordered.
Senator Skelos.
SENATOR SKELOS: Mr. President,
on behalf of Senator Wright, there will be an
immediate meeting of the Energy Committee in
the Majority Conference Room.
ACTING PRESIDENT MEIER: There
will be an immediate meeting of the Energy
Committee in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Mr. President,
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if we could have the noncontroversial reading
of the calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
35, by Senator Hoffmann, Senate Print 4259A,
an act to amend the Penal Law and the Criminal
Procedure Law.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
37, by Senator Rath, Senate Print 5787, an act
to amend the Penal Law.
SENATOR SKELOS: Lay it aside for
316
the day, please.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
THE SECRETARY: Calendar Number
49, by Senator Lack, Senate Print 1143, an act
to amend the Labor Law, in relation to direct
sellers.
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, 48. Nays,
2. Senators Duane and Stavisky recorded in
the negative. Also Senator Montgomery.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
50, by Senator Stafford, Senate Print 1509, an
act to amend the Labor Law, in relation to
licenses.
ACTING PRESIDENT MEIER: Read the
last section.
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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, 47. Nays,
3. Senators Duane, Montgomery, and Stavisky
recorded in the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
52, by Senator Maltese, Senate Print 3704, an
act to amend the Labor Law and the Penal Law,
in relation to certain employment.
SENATOR DUANE: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
54, by Senator Alesi, Senate Print -
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
318
58, by Senator Johnson, Senate Print 1531, an
act to amend the Domestic Relations Law, in
relation to visitation rights to infant
grandchildren.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
60, by Senator Skelos, Senate Print 130, an
act to amend the Criminal Procedure Law, in
relation to evidence of identification.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
61, by Senator Volker, Senate Print 145, an
act to amend the Criminal Procedure Law, in
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relation to preclusion of evidence.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MEIER: The bill
is passed.
THE SECRETARY: Calendar Number
62, by Senator DeFrancisco, Senate Print 548,
an act to amend the Criminal Procedure Law, in
relation to applications.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the 30th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
ACTING PRESIDENT MEIER: The bill
is passed.
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THE SECRETARY: Calendar Number
92, by Senator Padavan, Senate Print 6274, an
act to amend the Education Law, in relation to
disciplinary procedures.
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, 50.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Mr. President,
if we could take up the controversial
calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
52, by Senator Maltese, Senate Print 3704, an
act to amend the Labor Law and the Penal Law,
321
in relation to certain employment.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Maltese, an explanation has been requested of
Calendar Number 52 by Senator Duane.
SENATOR MALTESE: Mr. President,
this is an act to amend the Labor Law in
relation to certain employment of minors under
16 years of age. It is sponsored in the
Assembly by Assemblyman Seminerio.
The bill would prohibit the
employment of a minor under 16 years of age in
a performance in which the minor engages in
sexual conduct, as defined in the Penal Law,
which is harmful to said minor. It also makes
the possession or viewing of materials
containing obscene depictions of the nudity of
a child or of an obscene sexual performance by
a child a class E felony.
The bill follows the United States
Supreme Court case of Clyde Osborne versus the
State of Ohio in which the court ruled, in the
decision by Justice White, "Prohibition
against possession and viewing of child
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pornography complies with the First Amendment
and is not unconstitutionally overbroad."
The bill follows the definition
actually spelled out in the Penal Law of
"sexual conduct," which is actual or simulated
sexual intercourse, deviate sexual
intercourse, sexual bestiality, masturbation,
sadomasochistic abuse, or lewd exhibition of
the genitals. It also spells out the
definition of "harmful to minors," which means
that -- the quality of any description or
representation in whatever of nudity, sexual
conduct, sexual excitement, or abuse.
And I believe it complies with the
First Amendment according to the Supreme
Court.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Would the sponsor
yield to a couple of questions?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: Sponsor
yields.
SENATOR DUANE: I'm wondering why
plays and dances have been -- well, let me
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first say, before I ask the question, that I
certainly believe that the intent of this
legislation is laudable, and I don't disagree
with its intent. But I'm wondering why it is
that plays and dances were included.
SENATOR MALTESE: You're
wondering why what, Senator?
SENATOR DUANE: Plays and dances
are included in this legislation.
SENATOR MALTESE: Well, Mr.
President, in response, the -- I believe it's
because certain plays and dances -- and I
believe it also includes performances -- would
seek to shield themselves under the
constitutional protections that would be given
to performances or art.
It would be, I suppose, an attempt
to specifically exclude performances that
would be sexual in nature by children and that
they would be considered obscene by any
criteria.
SENATOR DUANE: If I may ask the
sponsor another question.
ACTING PRESIDENT MEIER: Senator
Maltese, do you yield?
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SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: Sponsor
yields.
SENATOR DUANE: Can you name any
dances that -- or plays in which this is
occurring now where children are dancing
obscenely? Or if there's a specific -- is the
Macarena potentially an obscene dance? I'm
just -- I'm not aware of these lewd children's
dances that -
SENATOR MALTESE: Mr. President,
neither am I. But probably the reason we're
not aware of them is because maybe some of the
producers were aware that this legislation,
when it was before the Senate in 1998, passed
unanimously. And they were perhaps frightened
that this would become law and they would be
engaging in an unlawful act.
SENATOR DUANE: Through you, Mr.
President, if I may continue to ask.
ACTING PRESIDENT MEIER: Senator
Maltese, do you continue to yield?
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: Sponsor
yields.
325
SENATOR DUANE: Just a
clarification, it didn't pass unanimously. I
voted in the negative.
But I'm wondering what plays and
children's dances precipitated this
legislation, then, in '98, since Senator
Maltese believes the problem has now been
solved. But I'm still trying to find what the
children's dances were prior to 1998 that were
causing this legislation to be put on the
floor.
SENATOR MALTESE: Mr.
President -- I'm sorry, Senator Duane, I
didn't hear the question.
I was corrected that you did in
fact vote in the negative in '99. I was
looking at the '98 roll call, when you were
not yet in the Senate. And that was 85 [sic]
to 0.
I'm sorry, could you repeat the
question?
SENATOR DUANE: I'm wondering
what was the children's obscene dance which
was occurring prior to 1998 -- though I know
you've solved the problem since then, but what
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was the problem before 1998? What was the
obscene children's dance that was going on?
SENATOR MALTESE: Mr. President,
I don't think this bill was in reply or in
reaction to any specific obscene children's
dance.
I think that it is obvious that
there is pornography circulating widely in
some parts of the United States, and in other
areas, that depicts children in obscene
performances. What this legislation seeks to
do is to stop such performances and
criminalize such performances and make it
obvious that perpetrators who would produce or
direct such performances would be in defiance
and in violation of the law and be subject to
criminal penalties.
This is not in reaction to some
specific performance, of which I am not aware
of. That perhaps Senator Duane would be aware
of. But I certainly would not be aware of it.
And this is not in reaction,
Senator, to any specific performance or any
specific dance. It's in reaction and as a
result of numerous outcries by parents and
327
educators all across the United States to
enact a law that would stop such performances,
which everybody, or all -- the vast majority
of people feel is obscene, is wrong, and a
perversion of children and minors who have no
right to make -- who do not have the ability
to make their own judgments.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Maltese -
SENATOR MALTESE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I understand, and
I believe that we all want to stop child
pornography. That's not what is at issue
here. And I -- I don't think anyone has even
raised the possibility that anyone in this
body would want to do anything but to try to
stop child pornography. It's a terrible
thing. I certainly salute your efforts to try
to stop child pornography.
That said, I am not aware, as you
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are not aware, of any obscene dances for
children going on. And my questions have had
to do with why dances and plays are included
in this, even though I can't imagine any kind
of venue where anyone would go to watch -
that there would be any audience for people to
watch children dancing obscenely or a play
which would include children behaving in an
obscene manner.
I'm concerned and want to know the
reasoning behind that, because in the absence
of having a good reason to include playing or
dancing -- plays or dances, it seems to me
that this could have perhaps a chilling
effect, in that it is such an overblown,
overdrawn, broad set of categories for
legislation -- which I certainly concur has,
you know, an excellent intent.
SENATOR MALTESE: Mr. President,
I believe the wording of the legislation was
in response to -- or taking into consideration
Section 263, Article 263, where not only the
definitions of sexual conduct are contained,
but also it specifically speaks of
performance, the definition of "performance,"
329
which includes, pursuant to statute, any play,
motion picture, photograph, or dance.
"Performance" also means any other visual
representation exhibited before an audience.
So I believe it was in -- not in
response to a specific performance or play,
but it's seeking to clarify the law so that it
would not include perhaps a play or
performance which would not in fact be obscene
and which would be protected by the First
Amendment.
SENATOR DUANE: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: Just in response
to the last comment, I think actually the
definition has not been made any clearer or
better, but in fact it's become way too
overbroad by including dance or play.
And though, again, I'll say again
that I think we all in this body, and
certainly I, share the goal of what this
legislation is. But I believe that we've put
too much into it and have instead perhaps
330
really not -- not drafted it in an appropriate
enough way to solve the problem which it seeks
to solve, and it in fact may have a chilling
effect in other areas.
So I'm intending again this year to
vote no on the legislation and hope that at
some point we'll see a more tightly crafted
piece of legislation to vote on.
Thank you, Mr. President.
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, 49. Nays,
2. Senators Duane and Montgomery recorded in
the negative.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Paterson.
SENATOR PATERSON: Mr. President,
on January 18th Senator Mendez passed a
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privilege resolution honoring the Duarte
Institute. And she couldn't get the Duarte
Institute here on that particular day. She
got them here today, but she's not here.
So on behalf of Senator Mendez,
although we never recognize anyone in the
chamber -- it's clear that I can't recognize
them from where I'm standing. But I do
recognize Assemblyman Espaillat, who is here.
And his district, along with Senator Mendez'
and mine, are areas that the Duarte Institute
operates. They're an affiliate of the
original Duarte Institute from the Dominican
Republic.
This is the 187th birthday of Juan
Pablo Duarte. We wish him continued good
health.
And we'd also like to point out
that John Sheppard, who is the president of
the Duarte Institute, along with other
members, is here today, and we welcome them to
the chamber.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Would you please
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take up Senator Alesi's bill.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 54.
THE SECRETARY: Calendar Number
54, by Senator Alesi, Senate Print 4124A, an
act to amend the Workers' Compensation Law, in
relation to liability for compensation.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Alesi, an explanation has been requested of
Calendar 54 by Senator Paterson.
SENATOR ALESI: Thank you, Mr.
President.
This simply would allow that any
worker injured in the course of an illegal
act, if he or she were convicted of an illegal
act, would not qualify for benefits under the
law.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
I would ask if Senator Alesi would yield for a
question.
ACTING PRESIDENT MEIER: Senator
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Alesi, do you yield?
SENATOR ALESI: Yes.
ACTING PRESIDENT MEIER: Sponsor
yields.
SENATOR PATERSON: Senator Alesi,
obviously if someone were robbing the premises
at which they worked and during the commission
of the crime they fell down the stairs and
hurt themself, it would be ridiculous and
quite imprudent for them to then apply for
workers' compensation.
But I wonder if the legislation as
proposed by you is a little overbroad in its
interpretation, because I can think of some
examples, with which I wish you would comment,
where the employee's action might be illegal
in the sense that it's not lawful, but it
probably doesn't constitute any more than a
violation, and, when balanced against the
damage that might be accrued that would result
in workers' compensation, I wonder if it would
be fair.
For instance, an employee who's
smoking a cigarette in an elevator, which is
illegal, but then the elevator crashes and the
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employee is seriously hurt.
Or an employee, for instance, that
might come into a building late at night,
using their key, but it is a point where the
premises are closed, and so the employer might
say, in order to fight the workers'
compensation, that "We are going to charge the
employee with trespass," which technically
might be what the employee did, although it
might be a custom that people come in the
office with their keys after hours all the
time.
My question, Mr. President, is
whether or not these not speculative but
certainly possible examples might not defeat
the purpose for which the legislation has been
drafted.
SENATOR ALESI: Well, Mr.
President, I don't think that they would
defeat the purpose at all.
First of all, as you know, the
Workers' Compensation Board does have some
latitude in determining these cases.
And, secondly, it would be a
determination of the level of crime by the
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courts as far as a conviction would be
concerned.
But most importantly, I think that
you have to deal with the fairness of this
issue, and the fairness of this issue is
fairly plain to me. The Senator points out
that if someone came onto a workplace and
exploded a bomb, then he would embrace the
concept that's in this legislation. But if it
were something of a lesser nature, then he
would not. At least as far as what I
interpret his comments to say.
So I would simply say that anyone
who is caught and convicted of an illegal act
and injured as a result of that illegal act
should not qualify for compensation. But in a
case where it's a minor issue, then it would
be the Workers' Compensation Board's domain to
determine that, and that would probably
prevail.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President.
If Senator Alesi would continue to
336
yield.
SENATOR ALESI: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Senator, I
hope you would correct me if I'm wrong, but my
reading of the Workers' Compensation Statute,
and just perusal of the information there,
reveals to me that it would appear that the
same latitude that you described that the
Workers' Compensation Board possesses might be
used to defeat a cause of action resulting in
the granting of workers' compensation to a
convicted criminal. In other words, that we
have the dicta in the statute right now to
actually stop that.
And it would seem to me that
therefore, further legislation would open the
door to the examples that I was giving rather
than the one that you gave.
SENATOR ALESI: Mr. President,
was the Senator asking me to respond, or is he
making a statement?
ACTING PRESIDENT MEIER: You want
337
a ruling on that point, Senator?
Senator Paterson, do you have a
question for Senator Alesi?
SENATOR PATERSON: Senator Alesi,
what did you think of that?
(Laughter.)
SENATOR ALESI: I think we -
through you, Mr. President, I think we had the
same debate last year. So I'll try to give an
answer that's in the same vein.
I believe that if you look at the
disability portion of workers' comp, it
already would preclude anybody from collecting
under the circumstances that are described in
the bill. So this just brings that into a
parallel set of circumstances.
But more importantly, I think if
you just simply look at the nature of this
bill and what it is designed to do, it is
recognizing that no one should be rewarded,
financially or otherwise, if they've been
convicted of a crime and they've been injured
as a result of the crime that they've been
convicted of.
SENATOR PATERSON: Thank you,
338
Senator Alesi.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: There are many
times in the law, Mr. President, where we are
forced to go back and restate the law.
Because even though it might exist in print or
interpretation under the existing statute,
there becomes a need, because of a lack of
adherence to the legislation, to then go back
and relegislate -- and we've done that many
times in history -- to make the point of
public policy that something is wrong and we
implore those who carry out the law to follow
it.
So I can understand why, if Senator
Alesi were to believe that there were a number
of crimes being committed and the victims were
seeking and receiving workers' compensation,
that we would have to go back and do this.
I don't think, with the exception
of one exception that was cited in this
legislation, that that has been a regular
occurrence, or even one that occurs so much
339
that it would even be disturbing. That did it
happen in a case where probably the ineptness
of the Workers' Compensation Board, more than
the legislation, contributed to it? I would
grant that it probably happened.
But what I think is more important
is Senator Alesi's answer to my last question
revealed a desire to make sure that people who
had committed crimes and were convicted as
such would not receive workers' compensation.
We heartily agree.
But this legislation goes beyond
that. It says "illegal acts." And I don't
always know what illegal acts are, or what,
just by the fact that something is unlawful,
would draw it into the ambit of what might be
classified as an illegal act.
There are a number of things that
people could be doing that are in a sense
wrong, or not right, under the statute, such
as the examples of smoking or if an employee
is driving a car that's not registered. It
might not have actually been registered under
the employer's negligence, but the employee,
because they are driving the car, could be
340
held culpable.
What about an employee who's
exceeding the speed limit by a couple of miles
an hour but then gets hit by another car?
They didn't cause the accident, but because
they exceeded the speed limit, that's an
illegal act.
And that's what my primary
objection to this legislation is, that it's
basically what we call overbroad. It covers
too many instances that would really be
appropriate for the legislation.
Let's just remember that in the
last few weeks a case was handed down by the
Court of Appeals relating to an incident in
Brooklyn where a rape victim was unable to sue
her employer even though the facility was -
had absolutely no safety or security, allowing
the rapist to come in and commit a horrible
act. She was unable to sue because, under the
Workers' Compensation Statute, you cannot sue
an employer for negligence on these types of
issues.
Well, the fact is that what's good
for the goose is good for the gander. If we
341
can't sue the employer for his or her
potential illegal acts, I don't think that we
should be able to hold the employee culpable
for those illegal acts unless they are a
conviction for a serious crime, which we think
the flexibility of the Workers' Compensation
Board provides for, as such, now.
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: Those recorded in
the negative on Calendar Number 54 are
Senators Connor, DeFrancisco, Dollinger,
Duane, Farley, Marcellino, McGee, Montgomery,
Onorato, Paterson, Schneiderman, Seabrook,
Smith, and Stavisky. Also Senator Kruger.
Also Senator Morahan. And also Senator
Stachowski.
Ayes, 35. Nays, 17.
ACTING PRESIDENT MEIER: The bill
is passed.
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Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. I'd like consent to be
recorded in the negative on Calendar 49,
Senate 1143.
ACTING PRESIDENT MEIER: Without
objection, Senator Schneiderman will be
recorded in the negative on Calendar 49.
Senator Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President. Without objection, I would like to
be recorded no on Calendar 35.
ACTING PRESIDENT MEIER: Without
objection, Senator Montgomery will be recorded
in the negative on Calendar Number 35.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
58, by Senator Johnson, Senate Print 1531, an
act to amend the Domestic Relations Law, in
relation to visitation rights to infant
grandchildren.
SENATOR MONTGOMERY: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
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Johnson, an explanation has been requested of
Calendar 58.
SENATOR JOHNSON: Mr. President,
this is a minor change in the law which would
extend the same opportunity to petition for
visitation rights to a step-grandparent as
those now enjoyed by a biological grandparent.
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes. Mr.
President, I just wanted to ask the sponsor if
he would yield for some questions.
ACTING PRESIDENT MEIER: Senator
Johnson, do you yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MONTGOMERY: Yes, thank
you.
Senator Johnson, your bill would
open up the visitation rights or the standing
of grandparents to step-grandparents to
petition the court for visitation rights?
SENATOR JOHNSON: That's right.
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SENATOR MONTGOMERY: And for what
reason are we providing this opportunity for
step-grandparents? Do grandparents already
have this right to petition?
SENATOR JOHNSON: Grandparents
do. But one of the grandparents may be dead,
that grandparent may have married someone else
who raised this child who is now the parent of
the grandchild and so forth, but they have no
rights.
I mean, right now some courts
permit step-grandparents to visit as well as
grandparents. But some courts have not, have
misinterpreted the law to say if you are not a
biological grandparent, you have no right to
petition for visitation.
We're just saying that as a
step-grandparent who's essentially been part
of the family for probably decades, that this
step-grandparent stands in the same place as
the biological grandparent who is no longer
there.
Nothing -- nothing radical about it
at all.
SENATOR MONTGOMERY: So now,
345
Mr. President, if Senator Johnson would
continue to yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: Sponsor
yields.
SENATOR MONTGOMERY: It is my
understanding, Senator Johnson, that there is
a case currently before the Supreme Court,
Troxel versus Granville, in which the court
has to decide whether or not grandparents -
even grandparents, biological grandparents -
have this right.
They have -- so if your bill is
passed, would it not possibly be that based on
this decision, it could be ruled
unconstitutional?
SENATOR JOHNSON: Well, I think
this is a difficult case for the court. But
actually, that case you referred to provided
that anyone who has any interest in visiting
the child without any relationship at all may
also petition the court for those visitation
346
rights.
I think Wisconsin, which had a
grandparents law, went too far when they
passed a law like this saying essentially
anybody can visit the child who chooses to do
so.
All this would say is whatever
rights grandparents would have in our state,
the step-grandparent would have the same
right.
SENATOR MONTGOMERY: Mr.
President, if Senator Johnson would continue
to yield for just one last question.
ACTING PRESIDENT MEIER: Senator
Johnson, do you continue to yield?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR MONTGOMERY: Senator,
could you give me a specific scenario example
of how your bill would work and under what
circumstances? I'm trying to figure out what
would -- why would a step-grandparent be
forced to or interested in going into court to
347
get visitation rights for a child.
SENATOR JOHNSON: Well, I mean,
there are many circumstances. As you know,
many children have stepparents now, due to the
fact of divorce, and that's a great number of
our people.
Now, if that is the family that
really raised the child -- and suppose that,
for argument's sake, the father dies, the
stepmother who raised the child would like to
visit, but under the law it could be
interpreted that she could not visit. I'm
saying if she essentially raised the child who
marries and is the parent of another child,
they have the same right as if the family had
stayed together, there had been no death in
the family. She would have the same right as
an existing biological grandparent.
I think it's appropriate, and it's
only in response to some cases where some
judges have interpreted it to mean only
biological. I'm saying any grandparent that's
really a legitimate grandparent, whether
biological or by marriage, could have that
same right to visit.
348
And all we're doing is letting them
petition the court. The court doesn't have to
grant it. As you know, Wisconsin is a radical
case, where they say anybody who wants to
visit this kid can just file papers to the
court and maybe visit the child. That may be
someone not really acceptable to the family at
all. But a relative would, I think, most
times be acceptable. But that's for the court
to decide, not us.
We're just saying whatever rights
remain after the Supreme Court case for
grandparents would also remain for the
step-grandparent. That's all.
SENATOR MONTGOMERY: Okay, thank
you.
Mr. President, briefly, on the
legislation.
ACTING PRESIDENT MEIER: Senator
Montgomery, on the bill.
SENATOR MONTGOMERY: Thank you.
I'm just reminded, as Senator
Johnson is talking, that we now have a classic
grandparent -- biological grandparent versus
people who are not as closely related to a
349
child, in the Elian Gonzalez case. That the
father would like to have that child returned
to him, the biological grandparents on both
sides would like to have that child returned
to them. But in fact, it's relatives who are
much further removed from that child who are
petitioning to in fact retain custody of that
child.
And I think in all of this, the
basic interests of the child gets lost. And
so I voted no in committee, I'm going to
continue to vote no. I think there is a
question of the best interests of a child.
And I'm not always sure or clear
that grandparents or cousins or uncles or
aunts or et cetera have absolutely the best
interests of the child in -- whenever they
decide that they would like to enter into the
child's life.
And also, there's the question of
constitutionality.
So I'm going to continue to vote no
on this bill, Mr. President.
SENATOR JOHNSON: Mr. President.
ACTING PRESIDENT MEIER: Senator
350
Johnson.
SENATOR JOHNSON: Just so that no
one is confused here, we're not talking about
custody. We're merely talking about
visitation granted at the wishes of the judge
who entertains the petition.
So I don't think it's identical at
all to anybody trying to take a child from the
parents at all. It's merely visitation. I'd
just like to clear that up.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
just a point of clarification, if Senator
Johnson would yield.
ACTING PRESIDENT MEIER: Senator
Johnson, do you yield for a question?
SENATOR JOHNSON: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Senator, is
the step-grandparent the parents of the
stepparent? Or is the step-grandparent where
the stepparent's stepchild then has children?
351
SENATOR JOHNSON: You'd better
off that stair stepper, that's all I can tell
you. You're getting too confused here.
We're talking about, if you'd like
an answer, the person who is now a member of
the family, by marriage, of the child who has
had a child or has been the father or mother
of a child. We're not getting too far
removed.
Like your grandpa married somebody
else, that's your step-grandmother. If you
don't want to see her, that's okay with me.
Are you okay, David? Senator?
SENATOR PATERSON: All right, let
me try that again. If the grandparent
remarries, that's the step-grandparent?
SENATOR JOHNSON: Yes. But the
grandparent may not remarry when he's a
grandparent, he may have married when he was
only a parent. And this person may have been
part of the family 10, 20, 30, or 40 years.
SENATOR PATERSON: Right.
SENATOR JOHNSON: Just subsequent
to the birth of the child who's the parent of
the child in question for visitation.
352
SENATOR PATERSON: Then I can
simplify the question to this. If you were a
stepparent and that child grows up and then
has a child, are you now a step-grandparent?
Or are you removed?
SENATOR JOHNSON: I guess you
are.
I think you've clarified it, yes.
It's perfectly clear. Everyone understands
it, and it's a good bill. I hope you support
it.
SENATOR PATERSON: Well, now
we've all learned something. Thank you,
Senator.
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, 51. Nays,
2. Senators Montgomery and Morahan recorded
in the negative.
ACTING PRESIDENT MEIER: The bill
353
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Energy Committee at the desk. I ask that it
be read.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Senator Wright,
from the Committee on Energy and
Telecommunications, reports the following
bills:
Senate Print 188, by Senator
Trunzo, an act to amend the Public Authorities
Law;
2421, by Senator Wright, an act to
amend the Public Service Law;
2422, by Senator Wright, an act to
amend the Public Service Law;
2423, by Senator Wright, an act to
amend the Public Service Law;
And 3900, by Senator Wright, an act
to amend the Public Service Law.
All bills ordered direct to third
354
reading.
ACTING PRESIDENT MEIER: All
bills directly to third reading.
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: Yes, we
have a motion, I believe.
Senator Morahan.
SENATOR MORAHAN: Mr. President,
I offer the following amendment on Calendar
Number 107, Senate Bill 5842, and I ask that
the said bill retain its place on Third
Reading Calendar.
ACTING PRESIDENT MEIER: The
amendment is received and the bill will retain
its place on the Third Reading Calendar.
Senator Skelos.
SENATOR SKELOS: Mr. President,
there being no further business to come before
the Senate, I move we adjourn until tomorrow,
Tuesday, January 25th, at 11:00 a.m. sharp.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Tuesday, January 25th, at 11:00 a.m.
355
(Whereupon, at 4:00 p.m., the
Senate adjourned.)