Regular Session - March 13, 2000
1233
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 13, 2000
3:14 p.m.
REGULAR SESSION
SENATOR NANCY LARRAINE HOFFMANN, Acting
President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT HOFFMANN: The
Senate will come to order.
I ask everyone to rise and please
repeat the Pledge of Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT HOFFMANN: The
invocation today will be delivered by the
Reverend Peter G. Young, Blessed Sacrament
Church in Bolton Landing.
REVEREND YOUNG: Let us pray.
For our citizens of New York State
and all of the members and staffs of our
Senate body, that they will work in a most
dedicated manner for their constituents.
We pray for the sick and those
financially suffering or emotionally disturbed
and developmentally disabled who turn to their
Senators for answers to their trials and
tribulations.
We know that the disenfranchised
call with their many exhausting requests for
jobs, housing, health, and endless other
concerns. As Senators, may we be open to the
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call of help that we need to respond to.
Amen.
ACTING PRESIDENT HOFFMANN: May
we have the reading of the Journal.
THE SECRETARY: In Senate,
Friday, March 10th, the Senate met pursuant to
adjournment. The Journal of Thursday,
March 9th, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT HOFFMANN:
Without objection, the Journal stands approved
as read.
May we have the presentation of
petitions.
Do we have messages from the
Assembly?
SENATOR SKELOS: Madam President.
ACTING PRESIDENT HOFFMANN:
Senator Skelos.
SENATOR SKELOS: Have we received
the resolution from the Assembly establishing
a time for the election of members of the
Board of Regents?
ACTING PRESIDENT HOFFMANN: Yes,
we have received the resolution from the
1236
Assembly establishing a time for the election
of the members of the Board of Regents.
SENATOR SKELOS: Thank you.
ACTING PRESIDENT HOFFMANN:
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President.
On behalf of Senator Bonacic, I
move that the following bills be discharged
from their respective committees and be
recommitted with instructions to strike the
enacting clause. That's Senate Print 1733 and
Senate 4937.
And, Madam President, on page 25 I
offer the following amendments to Calendar
Number 360, Senate Print 2729, and I ask that
that bill retain its place on the Third
Reading Calendar. That's on behalf of Senator
Kuhl.
1237
ACTING PRESIDENT HOFFMANN: The
amendments are received. The bill will retain
its reading on the Third Calendar.
SENATOR SKELOS: Madam President,
are there any substitutions to be made at the
desk?
ACTING PRESIDENT HOFFMANN: Yes,
there are.
SENATOR SKELOS: Please make them
at this time.
ACTING PRESIDENT HOFFMANN: Yes.
The Secretary will read.
THE SECRETARY: Senator Farley
moves to discharge, from the Committee on
Labor, Assembly Bill Number 3947 and
substitute it for the identical Senate Bill
Number 2214, Third Reading Calendar 51.
ACTING PRESIDENT HOFFMANN: The
substitution is ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Civil Service and Pensions Committee in the
Majority Conference Room.
ACTING PRESIDENT HOFFMANN: There
1238
will be an immediate meeting of the Civil
Service and Pensions Committee in the Majority
Conference Room, Room 332.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
calendar.
ACTING PRESIDENT HOFFMANN: May
we take up the reading of the noncontroversial
calendar.
THE SECRETARY: Calendar Number
18, by Senator Rath, Senate Print 2948A, an
act to amend the Vehicle and Traffic Law, in
relation to mandatory suspension.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
1239
THE SECRETARY: Calendar Number
78, by Senator Marcellino, Senate Print 1323A,
an act to amend the Vehicle and Traffic Law,
in relation to the enforcement of the offense
of operating a motor vehicle with a suspended
license.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 45. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
134, by Senator Trunzo, Senate Print 4250A, an
act to amend the Highway Law and the Public
Authorities Law, in relation to transportation
facility emergency work.
ACTING PRESIDENT HOFFMANN: Read
the last section.
1240
THE SECRETARY: Section 6. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
235, by Senator Trunzo, Senate Print 2994A, an
act to amend the Vehicle and Traffic Law and
the Public Authorities Law, in relation to
authorizing cities.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 4. This
act shall take effect in 30 days.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
272, by Senator Goodman, Senate Print 1102, an
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act to amend the Transportation Law, in
relation to mandating that the Commissioner of
Transportation or the City of New York refer
violations.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
274, by Senator Marcellino, Senate Print 3616,
an act to amend the Vehicle and Traffic Law,
in relation to increasing penalties.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT HOFFMANN: Call
the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
296, by Senator Stafford, Senate Print -
SENATOR PATERSON: Lay it aside.
SENATOR SKELOS: Lay it aside for
the day.
ACTING PRESIDENT HOFFMANN: The
bill is laid aside for the day.
THE SECRETARY: Calendar Number
299, by Senator Skelos, Senate Print 907, an
act to amend the General Obligations Law, in
relation to exoneration of certain crime
victims.
ACTING PRESIDENT HOFFMANN: Read
the last section.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT HOFFMANN: The
bill is laid aside temporarily.
THE SECRETARY: Calendar Number
348, by Senator Saland, Senate Print 3268, an
act to authorize the apportionment of state
building aid to the city school district of
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the City of Beacon.
ACTING PRESIDENT HOFFMANN: There
is a local fiscal impact statement at the
desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
351, by Senator DeFrancisco, Senate Print
4385, an act to amend Chapter 912 of the Laws
of 1920.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
1244
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
372, by Senator Libous, Senate Print 3588, an
act to amend the Highway Law, in relation to
increasing the limitation on the amount raised
by taxes.
ACTING PRESIDENT HOFFMANN: There
is a home rule message at the desk.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: Calendar Number
374, by Senator Bonacic, Senate Print 6673, an
act to amend the Highway Law, in relation to
designating a portion of the state highway
system.
ACTING PRESIDENT HOFFMANN: Read
1245
the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 51.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
Senator Skelos, that completes the
reading of the noncontroversial calendar.
SENATOR SKELOS: Madam President,
before we go to the controversial calendar,
just for the members' planning, we have one
bill on the controversial calendar. Then,
when the Civil Service Committee completes its
mission, we will take up the one bill that's
on their agenda. And there will also be a
meeting of the Energy Committee once the Civil
Service Committee is over with.
So if we could go to the
controversial calendar now.
ACTING PRESIDENT HOFFMANN: The
Secretary will read.
THE SECRETARY: Calendar Number
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299, by Senator Skelos, Senate Print 907, an
act to amend the General Obligations Law, in
relation to exoneration of certain crime
victims.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT HOFFMANN: An
explanation has been requested.
SENATOR SKELOS: Madam President,
I look forward to giving Senator Paterson this
explanation on a yearly basis.
This bill amends the General
Obligation Law by bringing back the
"assumption of risk" doctrine in certain civil
lawsuits.
If the defendant shows that the
injuries sustained by the plaintiff arose
during the commission or attempted commission
by the plaintiff of certain enumerated crimes,
and that the actions of the defendant were
justified pursuant to Article 35 of the Penal
Law -- and that defines what acts are
justifiable -- then the plaintiff is deemed to
assume all risks of injury coming from the
encounter with the victim, and the proof shall
constitute a complete defense to the action.
1247
The defendant must furnish proof by
a preponderance of the evidence by showing,
one, that the plaintiff committed the crime,
and, two, that the defendant's actions were
justified.
Senator Paterson.
ACTING PRESIDENT HOFFMANN:
Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. Madam President, would
Senator Skelos -- I guess he's already yielded
for a question.
ACTING PRESIDENT HOFFMANN: Would
Senator Skelos yield for a question?
SENATOR SKELOS: Yes.
ACTING PRESIDENT HOFFMANN:
Senator Skelos yields.
SENATOR PATERSON: Senator,
assuming that you have a situation where a
good Samaritan enters a situation to try to
avert a crime from being committed but then
goes beyond what may have been necessary to
subdue the defendant, in spite of the fact
that those of us who are here would probably
have absolutely no sympathy for the defendant,
1248
are we not turning the comparative negligence
statute that was pretty much formulated in
1975 on its ear by creating a situation where
the defendant has no recourse at all, other
than the fact that they were committing a
crime and were now injured by a good Samaritan
who may have, in reality, been acting beyond
their authority or with excessive force?
ACTING PRESIDENT HOFFMANN:
Senator Skelos.
SENATOR SKELOS: First of all,
you could bring a federal civil rights action
if you so desired.
But also, you know, just to point
out that the crimes that we're dealing with
are serious crimes -- murder, robbery,
burglary, arson, forcible rape, sodomy,
kidnapping -- and the force that was used is
defined in the Penal Law.
So both elements would have to be
found by a preponderance of evidence for you
to be barred from bringing the -- well, not
barred from bringing a civil lawsuit, but
being able to prevail.
SENATOR PATERSON: So in other
1249
words, in Section 35 you're saying that you've
established what are the grounds for
justification, and if those grounds are
actually met, then you can bar the suit?
SENATOR SKELOS: By a
preponderance of the evidence.
SENATOR PATERSON: Right.
Senator, if you would just yield
for one other question.
SENATOR SKELOS: Sure.
SENATOR PATERSON: Just to
specify this for everybody here, because it's
clear that you're talking about very serious
crimes. And quite frankly, I don't think
there's anyone in this chamber that's going to
disagree with you that we have seen, from time
to time, some court cases where individuals
were acting to try to stop a crime and then
got sued by the perpetrator of a crime, which
is astonishing, where an individual is, in
pursuit of some crime, harming others, perhaps
threatening their lives, and then they're the
first one to court with a lawsuit, when being
if -- that they had acted responsibly or
civilly themselves, we wouldn't be in this
1250
situation, there's a very compelling nature to
offering up a piece of legislation like this.
And I congratulate you for thinking it.
But what we're concerned about, and
what I'm raising to you is going beyond that
actual standard. So I give you the scenario
that with any one of the classifications that
you describe -- murder, rape, kidnapping -
the individual is now stopped. They've now
been tied up, let's say, by the good
Samaritan. And now, because it takes, let's
say, law enforcement a while to get there, the
good Samaritan, in a rage, takes it upon
themself and severely injures this person
while they were tied up.
You're saying, in a sense, that
other than a federal civil rights action,
you're not going to give the defendant any
rights in the court after that?
SENATOR SKELOS: I believe at
that point it wouldn't be justifiable, the
force that they used.
SENATOR PATERSON: Thank you,
Senator.
ACTING PRESIDENT HOFFMANN: Read
1251
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT HOFFMANN:
Senator Dollinger, why do you rise?
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly, to explain my
vote.
ACTING PRESIDENT HOFFMANN:
Senator Dollinger, to explain his vote.
SENATOR DOLLINGER: I've voted
against this bill in the past.
But as I understand it, the
inclusion of an affirmative defense on behalf
of the defendant that you were justified under
the Penal Law would mean that the only time
that a defendant would have that defense
available is if he was using force that was
consistent with the force brought against him
by the plaintiff.
A defendant, under the laws of this
1252
state, is not justified in using deadly
physical force, a gun or a knife, unless he's
threatened with that force. And so under
those circumstances, at least as I understand
this, we are taking a civil standard of
justification -- prove it by preponderance of
the evidence -- and if you are threatened with
deadly physical force, you may then respond
with deadly physical force and you cannot be
held liable.
This is different from the
situation in McCrimmons and other cases which
have come down from the Court of Appeals, in
which it was held that a defendant, you could
be sued civilly if you used deadly physical
force against someone who is fleeing a crime.
Someone who is fleeing a crime is not
threatening the defendant with deadly physical
force.
But as I read this, it says if
you're threatened with deadly physical force
and you respond, you cannot be held liable
because your conduct, under the Penal Law,
would be justified.
As I see it, that inclusion cures
1253
the problem that I saw in the bill and have
seen in the bill in the past, and I'm going to
vote in favor, Madam President.
ACTING PRESIDENT HOFFMANN: How
did you wish to be recorded, Senator
Dollinger?
SENATOR DOLLINGER: In the
affirmative. I'm changing it.
ACTING PRESIDENT HOFFMANN:
Senator Dollinger will be recorded in the
affirmative.
Senator Paterson, to explain his
vote.
SENATOR PATERSON: Thank you,
Madam President.
Senator Balboni seems stunned by
Senator Dollinger's change of heart, and so is
Senator Stachowski. And I'm also quite
impressed with Senator Dollinger's analysis of
this case.
But with Senator Skelos'
indulgence -- in fact, if he didn't have me
here to debate with over this bill every year,
I don't even think he would come here. So, so
as not to let him down, I'm going to vote no.
1254
Only for the reason that to establish what
would be a criminal burden of proof in a civil
trial in my opinion would be to create a trial
within a trial.
So what I would be willing to do is
to take a look at this, because Senator Skelos
certainly has put something into the
legislation that is quite persuasive. And
perhaps next year I can come back and see it a
different way.
ACTING PRESIDENT HOFFMANN:
Senator Paterson will be recorded in the
negative.
Results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 299 are
Senators Connor, Duane, Montgomery, Padavan,
and Schneiderman. Ayes, 49. Nays, 5.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
THE SECRETARY: In relation to
Calendar Number 299, Senator Paterson is
recorded in the negative, Senator Padavan in
the affirmative.
ACTING PRESIDENT HOFFMANN: The
1255
bill is passed.
The chair recognizes Senator
Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
committees, I believe there's a report of the
Civil Service Committee at the desk. I ask
that it be read.
ACTING PRESIDENT HOFFMANN: We
have completed the controversial calendar.
Are there any other communications at the
desk?
The Secretary will read reports of
standing committees.
THE SECRETARY: Senator Leibell,
from the Committee on Civil Service and
Pensions, reports:
Senate Print 6009A, by Senator
Balboni, an act to amend the Retirement and
Social Security Law;
And Senate Print 6846, by Senator
Leibell, an act to amend the Retirement and
Social Security Law.
Both bills ordered direct to third
reading.
1256
ACTING PRESIDENT HOFFMANN:
Senator Skelos, what's your preference?
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Energy Committee in the Majority Conference
Room.
ACTING PRESIDENT HOFFMANN: There
will be an immediate meeting of the Energy
Committee in Room 332.
SENATOR SKELOS: Madam President,
if we could please take up Calendar Number
392, Senate 6846, which was just reported from
the Civil Service and Pensions Committee.
ACTING PRESIDENT HOFFMANN: The
Secretary will read.
THE SECRETARY: Calendar Number
392, by Senator Leibell, Senate Print 6846, an
act to amend the Retirement and Social
Security Law, in relation to the participation
in and member contributions to the 25-year and
age 55 retirement program.
ACTING PRESIDENT HOFFMANN: Read
the last section.
THE SECRETARY: Section 9. This
act shall take effect immediately.
1257
ACTING PRESIDENT HOFFMANN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
ACTING PRESIDENT HOFFMANN: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
I believe we have to wait for the Energy
Committee to meet, so we'll stand at ease.
ACTING PRESIDENT HOFFMANN: The
Senate will stand at ease, awaiting the report
from the Energy Committee.
(Whereupon, the Senate stood at
ease at 3:34 p.m.)
(Whereupon, the Senate reconvened
at 3:39 p.m.)
SENATOR SKELOS: Madam President.
ACTING PRESIDENT HOFFMANN:
Senator Skelos.
SENATOR SKELOS: 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 HOFFMANN:
1258
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Wright,
from the Committee on Energy and
Telecommunications, reports:
Senate Print 6481, by Senator
Wright, an act to amend the Public Authorities
Law.
Said bill ordered direct to third
reading.
ACTING PRESIDENT HOFFMANN:
Without objection, the bill will be reported
directly to third reading.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
ACTING PRESIDENT HOFFMANN: Yes,
there is some housekeeping at the desk.
The chair recognizes Senator
Marcellino.
SENATOR MARCELLINO: Thank you,
Madam President.
I wish to call up Senator Rath's
bill, Senate Print Number 6173A, recalled from
the Assembly, which is now at the desk.
ACTING PRESIDENT HOFFMANN: The
1259
Secretary will read.
THE SECRETARY: Calendar Number
179, by Senator Rath, Senate Print 6173A, an
act to amend the Criminal Procedure Law and
others.
SENATOR MARCELLINO: Madam
President, I now move to reconsider the vote
by which this bill was passed.
ACTING PRESIDENT HOFFMANN: The
Secretary will call the roll on
reconsideration.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT HOFFMANN:
Senator Marcellino.
SENATOR MARCELLINO: Madam
President, I offer the following amendments to
the bill.
ACTING PRESIDENT HOFFMANN: The
amendments are received.
SENATOR MARCELLINO: Thank you.
ACTING PRESIDENT HOFFMANN:
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business to come before
1260
the Senate, I move we adjourn until Tuesday,
March 14th, at 3:00 p.m.
ACTING PRESIDENT HOFFMANN: The
Senate stands adjourned until Tuesday,
March 14th, at 3:00 p.m.
(Whereupon, at 3:41 p.m., the
Senate adjourned.)