Regular Session - April 18, 2000
2462
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
April 18, 2000
3:15 p.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
2463
P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we each bow our heads in a moment
of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, April 17th, the Senate met pursuant to
adjournment. The Journal of Sunday,
April 16th, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
2464
Messages from the Governor.
Reports of standing committees.
The Secretary will read.
THE SECRETARY: Senator Balboni,
from the Committee on Water Resources,
reports:
Senate Print 4626, by Senator
Balboni, an act to amend the Environmental
Conservation Law.
Senator Padavan, from the Committee
on Cities, reports:
Senate Print 3473A, by Senator
Paterson, an act to authorize the United
Pentecostal Church to file an application;
5742B, by Senator Maltese, an act
to amend Chapter 164 of the Laws of 1907;
And 7148, by Senator Goodman, an
act to amend the Local Finance Law.
Senator Hannon, from the Committee
on Health, reports:
Senate Print 2302, by Senator
Hannon, an act to amend the Public Health Law;
5415A, by Senator Spano, an act to
amend the Public Health Law;
7287, by Senator Skelos, an act to
2465
amend the Public Health Law;
7300, by Senator Spano, an act to
amend the Public Health Law;
7301, by Senator Hannon, an act to
amend Chapter 483 of the Laws of 1978;
7367, by Senator Hannon, an act to
amend Chapter 505 of the Laws of 1995;
7368, by Senator Hannon, an act to
amend Chapter 884 of the Laws of 1990;
7373, by Senator Hannon, an act to
amend Chapter 904 of the Laws of 1984;
And 7374, by Senator Hannon, an act
to amend Chapter 314 of the Laws of 1984.
Senator Rath, from the Committee on
Local Government, reports:
Senate Print 24, by Senator Larkin,
an act to amend the Real Property Tax Law;
124, by Senator Rath, an act to
amend the General Municipal Law;
4841, by Senator Rath, an act to
amend the General Municipal Law;
5821A, by Senator Skelos, an act
authorizing the assessor of the County of
Nassau;
6356, by Senator Volker, an act to
2466
amend the Local Finance Law;
6546, by Senator Hannon, an act
authorizing the assessor of the County of
Nassau;
6835, by Senator Padavan, an act to
amend the General Municipal Law;
6850, by Senator Balboni, an act in
relation to authorizing the Ban Suk Korean
United Methodist Church;
6852, by Senator Balboni, an act
authorizing the assessor of the County of
Nassau;
6853, by Senator Balboni, an act to
authorize the assessor of the County of
Nassau;
6854, by Senator Balboni, an act
authorizing the assessor of the County of
Nassau;
6855, by Senator Balboni, an act to
authorize the St. Gregorios Malankara Orthodox
Church;
6869, by Senator Trunzo, an act to
authorize Glory Zone Ministries International;
7053, by Senator Velella, an act
authorizing the City of New Rochelle;
2467
7139, by Senator Libous, an act to
authorize the City of Norwich;
7215, by Senator Skelos, an act
authorizing the assessor of the County of
Nassau;
7331, by Senator Rath, an act to
amend the Local Finance Law;
7332, by Senator Rath, an act to
amend the Village Law;
And 7336, by Senator Hannon, an act
to authorize the Miracle Christian Center.
Senator Marchi, from the Committee
on Corporations, Authorities and Commissions,
reports:
Senate Print 5909B, by Senator
Morahan, an act to amend the Not-for-Profit
Corporation Law;
6829, by Senator DeFrancisco, an
act to amend the Public Authorities Law;
6894, by Senator Marchi, an act to
amend the Public Authorities Law;
And 7023A, by Senator Wright, an
act to amend the Public Authorities Law.
Senator Saland, from the Committee
on Children and Families, reports:
2468
Senate Print 965A, by Senator
Skelos, an act to amend the Domestic Relations
Law;
1257, by Senator Spano, an act to
amend the Social Services Law;
1828, by Senator Saland, an act to
amend the Social Services Law;
And 2976, by Senator Saland, an act
to amend the Social Services Law.
Senator Goodman, from the Committee
on Investigations, Taxation and Government
Operations, reports:
Senate Print 782A, by Senator
Goodman, an act to amend the Executive Law;
4036A, by Senator Goodman, an act
to amend the Public Officers Law;
4239, by Senator DeFrancisco, an
act to amend Chapter 679 of the Laws of 1992;
6368, by Senator Stachowski, an act
to authorize the Commissioner of General
Services;
7147, by Senator Bruno, an act to
authorize the Office of General Services;
7181, by Senator Trunzo, an act to
amend Chapter 719 of the Laws of 1982;
2469
7285, by Senator Libous, an act to
amend the Public Officers Law;
And 7286, by Senator Goodman, an
act to amend the Tax Law.
All bills ordered direct to third
reading.
THE PRESIDENT: Without
objection, all bills ordered direct to third
reading.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos, we have some
substitutions.
SENATOR SKELOS: Madam President,
if we can make the substitutions, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 14,
Senator Spano moves to discharge, from the
Committee on Local Government, Assembly Bill
Number 1939 and substitute it for the
identical Senate Bill Number 2013, Third
Reading Calendar 316.
2470
On page 15, Senator Morahan moves
to discharge, from the Committee on Veterans
and Military Affairs, Assembly Bill Number
2995 and substitute it for the identical
Senate Bill Number 5885, Third Reading
Calendar 380.
On page 20, Senator Fuschillo moves
to discharge, from the Committee on Consumer
Protection, Assembly Bill Number 7248 and
substitute it for the identical Senate Bill
Number 4744, Third Reading Calendar 468.
And on page 26, Senator Farley
moves to discharge, from the Committee on
Higher Education, Assembly Bill Number 4885
and substitute it for the identical Senate
Bill Number 2756, Third Reading Calendar 569.
THE PRESIDENT: The substitutions
are ordered.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could please adopt the Resolution
Calendar.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar signify by
saying aye.
2471
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution
Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
with Resolution 3780, which concerns Brain
Tumor Awareness Week, and 3797, Organ Donor
Awareness Week, with the consent of the
Minority, I'd like to open up those
resolutions for sponsorship by the entire
Senate.
If anybody wishes not to sponsor
them, if they could let the desk know.
THE PRESIDENT: Thank you,
Senator.
Any member who does not wish to be
included on these resolutions please notify
the desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
if I could just interrupt the proceedings of
the house, we have a very distinguished guest
with us today, Mr. John Anderson, a former
2472
Congressman, President of the World Federalist
Association, and former candidate for
President of the United States.
On behalf of Senator Bruno and the
Majority and the Minority, we welcome you.
And if you could extend your usual
cordial welcome to this most distinguished
guest.
THE PRESIDENT: Senator Goodman.
SENATOR GOODMAN: Madam
President, there are a number of us who over
the years have had enormous admiration for our
guest today, and I'd just like to add a word
of warm congratulations and welcome to a great
American whose sense of values has long been
an inspiration to many of those of us of
independent thought, which I think includes
everyone in the chamber.
John Anderson is now the President
of the World Federalists, indicating his
concern for world peace and comity, and we're
very delighted and honored indeed to have him
in the State Capitol today.
THE PRESIDENT: Thank you,
Senators.
2473
And as President of the Senate, on
behalf of the members of the Senate, I wish to
extend to you our warm welcome. It is an
honor and a privilege to have someone of your
caliber and your achievements join us here in
the chamber this afternoon. Welcome.
MR. JOHN ANDERSON: Thank you
very much.
(Applause.)
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privilege resolution at the desk by
Senator Stafford. May we please have the
title read and move for its immediate
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Stafford, Legislative Resolution Number 3859,
honoring Douglas Weaver upon the occasion of
his designation as the recipient of the New
York State 4-H Lifetime Achievement Award.
THE PRESIDENT: The question is
on the resolution. All those in favor signify
by saying aye.
2474
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
calendar at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
237, by Senator Rath, Senate Print 674A, an
act to amend the Family Court Act, in relation
to the definition of a "person in need of
supervision."
SENATOR DUANE: Lay it aside.
SENATOR DOLLINGER: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
408, by Senator Padavan -
SENATOR PADAVAN: Lay the bill
aside, please.
2475
THE PRESIDENT: The bill is laid
aside.
SENATOR PADAVAN: For the day.
THE PRESIDENT: For the day.
THE SECRETARY: Calendar Number
448, by Senator Marcellino, Senate Print 6387,
an act to amend the Environmental Conservation
Law, in relation to preserving lands.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
496, by Senator Seward, Senate Print 6643B, an
act to amend the Insurance Law, in relation to
qualifications for an insurance broker's
license.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
2476
act shall take effect 180 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
585, by Senator Stafford, Senate Print 735, an
act in relation to the lease or rental of
certain land in Warren County.
THE PRESIDENT: I'm going to ask
that the members take their conversations
outside the chamber, please.
There is a home rule message at the
desk.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
589, by Senator LaValle, Senate Print 1624, an
2477
act to amend the General Municipal Law, in
relation to creating the Town of Southampton
Community Development Agency.
THE PRESIDENT: There is a home
rule message at the desk.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
597, by Senator Kuhl, Senate Print 7061, an
act authorizing the County of Steuben to
expand.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
2478
passed.
THE SECRETARY: Calendar Number
607, by Senator Velella, Senate Print 6691, an
act to amend Chapter 383 of the Laws of 1991
relating to the incorporation of the New York
Zoological Society.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
644, by Senator Skelos, Senate Print 966 -
SENATOR CONNOR: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside, Senator Connor.
THE SECRETARY: Calendar Number
646, by Senator Balboni, Senate Print -
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
2479
aside.
THE SECRETARY: Calendar Number
670, by Senator Volker, Senate Print 6093A, an
act authorizing the Village of Lancaster, Erie
County, to convey certain parklands.
THE PRESIDENT: There is a home
rule message at the desk.
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
678, by Senator Marcellino, Senate Print 6929,
an act in relation to authorizing the town
boards of the Towns of Oyster Bay and North
Hempstead.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 12. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
2480
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
679, by Senator Johnson, Senate Print 7138, an
act to authorize the Trinity Evangelical
Lutheran Church to file an application.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53. Nays,
1. Senator Dollinger recorded in the
negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
689, by the Senate Committee on Rules -
SENATOR DOLLINGER: Lay it aside.
SENATOR SKELOS: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
2481
THE SECRETARY: Calendar Number
690, by Senator Maltese, Senate Print 7418, an
act to amend the Election Law, in relation to
presidential primaries.
SENATOR CONNOR: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
Senator Skelos.
SENATOR SKELOS: Madam President,
on Calendar Number 690, is there a message of
necessity at the desk?
THE PRESIDENT: Yes, Senator,
there is.
SENATOR SKELOS: Move to accept
the message.
THE PRESIDENT: The motion is to
accept the message of necessity. All in favor
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The message of
necessity is accepted. The bill is laid
aside.
Senator Skelos, that completes the
2482
noncontroversial reading of the calendar.
SENATOR SKELOS: Madam President,
if we could go to the controversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
237, by Senator Rath, Senate Print 674A, an
act to amend the Family Court Act, in relation
to the definition of "person in need of
supervision."
SENATOR DUANE: Explanation.
THE PRESIDENT: Senator Rath, an
explanation has been requested.
SENATOR RATH: Thank you, Madam
President.
The PINS bill, as this one has of
course been called through the years, is one
that we have seen I believe every year for the
last six years. And the bill has wide support
as this Legislature every year looks at it.
It's one of course that no one
argues with the basic premise of the bill,
raising the age to 18 for both men and women,
in that -
THE PRESIDENT: Excuse me,
2483
Senator.
I'm going to again ask that the
members take their conversations outside the
chamber.
Go ahead, Senator Rath.
SENATOR RATH: -- in that we are
presently in an unconstitutional position,
where -- as we have different ages for men and
for women.
The bill has wide support, except
let me give you the group that is opposed to
it. And of course the phrase "unfunded
mandate" will come up, I assume, as some of
you would ask me the question, How are you
going to be able to pay for the costs that
will be incurred if this bill goes through?
And of course unfunded mandates are
anathema to me and to many of us in this
Legislature. And the idea here, and the
reason that the urgency of this bill has come
forward, is that in this year's budget there
is a provision for what has been called the
PINS study bill to go forward.
That will give us an idea, through
the study, of what we can expect to see
2484
demographically by way of additional people in
the PINS programs and in the jurisdiction of
the courts and the agencies. We will get some
sort of an idea about how many people that
will affect.
One of the greater issues here has
been that the idea of moving this up to age 18
will be a diversionary issue and keep a number
of young people out of the system in the first
place. Which is the idea behind all of this,
to give the system and the parents, in this
case, some jurisdiction and responsibility
over these young people age 16 to 18.
And as someone said to me today, a
lot of young people are going to get an awful
lot smarter between ages 16 and 18 than they
did before, because it's just a matter of
course. As they grow up, they realize that
some of the very disruptive behavior that
they've engaged in and some of the things they
think they can do at 16 they realize, by the
time they're 18, it's just not going to quite
work out that well for them if they go out to
the streets and try to make their own way.
So the bill has had wide, wide
2485
support by the police agencies, by parents. I
have a whole stack of memorandums if anyone
wants me to recite those.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you. Would
the sponsor yield, please?
THE PRESIDENT: Will the sponsor
yield?
SENATOR RATH: Surely.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: Thank you.
THE PRESIDENT: With questions, I
assume.
SENATOR DUANE: Yes, Madam
President.
It is true that during this year's
conference committees some of the TANIFF funds
are going to go for a study of the feasibility
on this concept of raising the age. Why did
you make the decision not to wait until we
find out the results of the study?
SENATOR RATH: The point goes to
the implementation of the bill, assuming that
we pass it, the Assembly passes it, and that
2486
the Governor signs it. Because then we get to
the point of, number one, needing to know the
costs.
And if we can move forward with
this TANIFF carve-out, as you point out, and
get the demographic information in quickly,
then we can get into implementation the
November after the bill is put in place, which
is what it provides for now.
And so there's no way, first of
all, that we will have the information
immediately, nor is there a PINS bill to get
information for until we pass the bill. So
it's almost the issue of the cart and the
horse. I mean, to get the PINS implementation
and study bill underway when there is no PINS
bill passed, it's, Well, then, why are you
studying a bill that you haven't passed yet
and trying to find out how much it's going to
cost?
So it's just a matter of moving
this along.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
2487
THE PRESIDENT: You have the
floor, Senator Duane. Go ahead.
SENATOR DUANE: I agree that this
is putting the horse before the cart.
But I think by not having the
results of this study before passing the
legislation, we're putting the cart before the
horse, not the other way around. For
instance, nothing in the legislation addresses
that we're doing a study or that
implementation of the legislation will start
after we get the results of the study.
And I also, though -- Senator, you
raise the issue of this being an unfunded
mandate. Either this will be an unfunded
mandate to the counties, or it will be done by
the state reimbursing the county for expenses.
The bill is silent on that.
I'm wondering what the sponsor's
position is on whether or not the county will
have to pay for this itself or whether she
believes the state will pay for this.
SENATOR RATH: My colleague
Senator Morahan, who has been very active on
this bill the last several months, has just
2488
said to me that maybe what we're trying to do
here is get the horse next to the cart,
because of the urgency. And I have to agree
with him.
There's an urgency here that
parents every year come to Albany, and I have
received countless letters on this particular
bill -- the urgency to have any more young
people falling into the criminal justice
system because this legislation isn't there,
it just seems irresponsible and unacceptable
not to move this forward.
And, frankly, without the bill that
we're going to implement it, the urgency to
get to the bottom line of the study doesn't
have quite the bang. And if there's anyone in
this Legislature who is death on unfunded
mandates, Senator, it is me. It is one of the
things that I have been involved with and
caught up with forever.
And I don't know exactly how we're
going to pay for it, but we'll find a way to
pay for it.
SENATOR DUANE: Through you,
Madam President, if the sponsor will continue
2489
to yield.
THE PRESIDENT: Does the sponsor
continue to yield?
SENATOR RATH: Certainly.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: I support raising
the age of persons in need of supervision to
18. I very much support that. And I do think
that's the responsible thing to do.
But what I think is irresponsible
is to not -- is for us as a body to not have a
position on whether or not the county or the
state will pay for this.
So I just want to ask my question
again: What is the sponsor's position or what
is her anticipation of how this will be paid
for? Because I don't think we should pass
legislation in the hopes that somehow we'll
find a way to pay for it. I think we should
know how we're paying for something as we're
passing the legislation.
So is it going to be by the
counties paying themselves, or will it be the
state reimbursing the counties?
2490
SENATOR RATH: Senator, at the
risk of sounding like a bleeding heart, I
would tell you that parents will tell you that
there is no cost that could be attached to the
loss of one of those children who falls into
the criminal justice system as a result of us
not providing the correct pieces of
legislation for the police and the criminal
justice system to use to save those children.
There are few pieces of assistance
that we can give to those agencies that would
mean as much as this. And frankly, as I said
in my opening remarks, I believe that it has
been well overblown in response to what the
thoughts of the costs are going to be.
And you may respond to me, Well,
even if it's $100,000 to large counties and
only $50,000 to small counties, we still need
to let them know how much it is going to be.
And I would suggest to you,
Senator, that we need to prioritize what's
important, then. If in next year's budget we
find that, yeah, it's costing the counties
some money and we need to help them out with
their costs, there isn't anything better that
2491
we could put our dollars into.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: You have the
floor, Senator Duane.
SENATOR DUANE: Thank you.
No one's heart bleeds more than
mine does. Mine is the bleedingest heart in
this body, I believe. That said, my personal
opinion is that the state should reimburse the
counties for these expenses. But I still
believe that we would be better off knowing
exactly how we're going to pay for this.
A PINS process allows the court
complete discretion to place the child outside
the home. That means that even more children
will be under the jurisdiction of the Family
Courts. And as it is, most Social Service
districts throughout the state are already in
crisis due to limited resources to provide
services for children and young adults. In
fact, they're already under incredibly
powerful restraints -- fiscal constraints, I
should say, by the child welfare block grant.
2492
And that means that a lot of services are
competing with each other for limited funding.
I'm wondering how the bill -- how
this bill will necessitate reexamination of
the block grant system of funding child
welfare, and where would I see that in the
bill.
SENATOR RATH: I think, Senator,
we will see that as the PINS study bill comes
forward and we get the information from the
study.
If you'd like to give us some input
by way of a memorandum as to what you think
it's important that's looked at in relation to
the costing out of the additional
responsibilities to the counties, I'd be
certainly happy to entertain that.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Does the sponsor
yield?
SENATOR RATH: Surely.
THE PRESIDENT: Go ahead, Senator
Duane.
2493
SENATOR DUANE: I assume that the
sponsor is familiar with Senator Saland's
bill, 5553. It was Calendar Number 938, which
passed the house earlier this year -- I'm
sorry, which passed this house in May of 1999.
That also increased the jurisdictional age of
PINS to 18 regardless of gender.
I'm wondering why this legislation
that we have on the floor today ignores that
legislation.
SENATOR RATH: Well, Senator, it
doesn't ignore it, but it stands alone and
gives us an opportunity to stand up for these
young people who need someone representing
them, at the request not only of the parents'
groups but of the police agencies.
SENATOR DUANE: And through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Does the sponsor
yield?
SENATOR RATH: Certainly.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DUANE: Right now, under
2494
the State Education Law, children are required
to be in school only up to the age of 16 years
old. What is the sponsor's vision of what the
Education Law should say if we raise the age
of PINS-eligible to 18?
SENATOR RATH: At this point,
this of course -- that of course that you
bring up, Senator, is not a part of this bill.
But I would hope that the Education Law would
be changed to reflect this.
SENATOR DUANE: Thank you.
Thank you, Madam President.
THE PRESIDENT: Read the last
section.
Senator Volker.
SENATOR VOLKER: Madam President,
I will speak fairly short on this.
I've been involved with this issue
for about -- I'm trying to remember -- about
25 years. I was a police officer back in
western New York when the court made the
decision that caused this issue to be before
us.
It's always been fascinating to me
that one of the ways in which the -- some of
2495
these Social Services agencies have tried to
avoid this issue was to say this is going to
cost millions and millions of dollars.
They've never been able to really verify that.
And, by the way, I passed this bill
when I was in the Assembly, a bill almost
identical to this, in 19 -- I think it was
1973. And I believe, in fact, we had it
within one vote, I think in the Senate.
Unfortunately, a Family Court judge
lost his nerve, and the Family Court judges
who were supporting it backed away. And as a
result, it didn't pass both houses. Because
we had the Governor poised to sign the bill.
Well, then a new Governor came in.
I believe we passed it through both houses
when I moved over to the Senate, and I believe
it was vetoed, if I'm not mistaken.
This has always been an argument
between agencies and parents, it is my belief.
And it's admittedly an urban/suburb/rural
issue. The prime people who support this are
in suburban and urban areas, because they're
parents who are trying to keep control of
their kids. In the urban areas, many of the
2496
agencies have had a tendency to feel as if
they know how to handle kids better than many
of the parents, and they're concerned,
admittedly, with some of the problems that
occur with abuse and other things. But those
kind of cases, by the way, can be taken care
of in other ways by the law.
I think this is an issue that
really needs to be dealt with. Senator Rath,
my personal feeling is that at a time now,
when we are poised with the change in the
welfare system, the Medicaid system, with
TANIFF and all the rest of the things that
we're ready to deal with.
I strongly suspect, however, if
this bill became law there wouldn't be a major
impact on the Family Court system, but I think
there would be a major impact on other parts
of the criminal justice system, partly. And
it's something I think that we're poised to
deliver, to deal with. Because with the rate
of violent crime declining and the rate of
crime in general, I think we'd be able to
handle it better.
I think this bill is a bill whose
2497
time has really come. I think its time
probably came about twenty years ago, but I
think it's come even more. And I think it's a
symbol, in my opinion, of the problems that we
have had in dealing with family problems over
the last twenty years because some judge
decided way back then that he didn't like the
way the constitutional provisions sat and the
result was that we developed a process that I
think has not been in the best interests of
children and certainly not in the best
interests of families.
I think this bill represents a move
in that direction, of improving the
relationship between parents and their
children, and it's something that long since
should have been done.
THE PRESIDENT: Senator Morahan.
SENATOR MORAHAN: Thank you,
Madam President.
I rise in support of this bill.
Senator Volker and Senator Rath have spoken so
eloquently on the merits of the bill, but I
wanted just to add a little bit to that.
We talk about the cost and what it
2498
may cost, may not cost. And this year what's
different is we're putting in a cost
resolution and a cost bill. What's different
this year is we have put in a resolution and a
carve-out of TANIFF to provide funds for that
study. What's different this year is we've
had good negotiations going on with the
Assembly, the other house, who has moved
somewhat towards our position, and hopefully
we can bring that to closure.
I think what's important here is
that there's children at stake and there's
families at stake. And the assumption that
this is going to cost a great deal is merely
that, an assumption. And arguments can be
made for both sides.
It seems to me, however, that what
this bill really does is it strengthens the
ability of the parents to have some control
and continued authority over their children.
I think more children will stay home, they
won't leave home. I think more will not try
to get away and confront their parents in a
manner that is demeaning to the parents,
destructive to the family.
2499
So I rise in support of this bill,
and I'm gladly going to support it with my yes
vote.
Thank you, Madam President.
THE PRESIDENT: Senator Larkin.
SENATOR LARKIN: Thank you, Madam
President.
When we talk about parental
responsibility, we also talk about children.
And too frequently we're looking to blame the
parents or hold parents responsible for
actions of our children.
If we're going to do that, this
piece of legislation, as Senator Volker had
said before, went on for many, many years.
Senator Rath has held hearings across the
state. Senator Morahan, Senator Bonacic and I
have met with many, many groups within our
district and outside of our district. And
every group that we've met with has said to
us, When you look at the family, you look at
the school, you look at all the surrounding
issues, there's only one way to resolve this
now, is to raise the age.
And what we need to do here is to
2500
send a clear message that when we're going to
charge parents with certain responsibilities,
we also want them to have some responsibility
over their own children.
We met with some families, and
parents were telling us stories of "My
daughter was going out the door at 10:30 at
night, she's a sophomore in high school. And
what was I doing?" The father said, "I said,
'You're not going. That's the rules of our
house.' She said, 'I'm of the age that I can
walk out anytime I want to. You have no
control.'"
He grabbed her, she went into her
room and called the police, and the police
showed up at his door. And he was brought
into court.
But yet if that child went out,
caused damage or destruction, they would be
coming back to the parents saying, You owe so
much money for the damage your child did.
What we're doing here today is
turning some control back to parents. We
can't always say the parent's responsible but
the child can do what they please.
2501
Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: Yes, Madam
President. Thank you.
My issue isn't particularly
unfunded mandates, though I'm opposed to
unfunded mandates. I prefer funded mandates.
And I think I actually made that clear during
my questioning. I think the state should pay
the cost of increasing the age for persons in
need of supervision.
What I'm concerned about -- because
we're not here today deciding how that's going
to get paid for -- is I'm actually afraid that
the horses might get run over by the cart. I
think that -- I mean, far be it from me to
lecture the body on responsible budgeting
2502
because I'm, you know, not exactly Mr. Tax
Cuts and let's-not-spend-on-programs. That's
not really my point of view.
But I do think it's fiscally
responsible for us to tell people how we're
going to pay for programs that we put into
place. For instance, increasing the age of
persons in need of supervision.
I think we're going to be cleaning
up this bill in the out years. So before we
overcongratulate ourselves on this, I think
that we should see how it's going to fiscally
impact the state. And if it's not going to
fiscally impact the state, it's certainly
going to be fiscally impacting the counties of
our state.
As it is, our court system, our
Family Court system is overburdened. We hear
that when we vote on nominations to the Family
Court, I know, from counties around the state.
I know it's a terrible problem in the City of
New York. Also, our Social Services are
overburdened. The people I talk to from the
counties say that there are already terrible
fiscal constraints imposed by the child
2503
welfare block grant, and certainly this
legislation is going to impact on that as
well.
So if you were to tell me that this
was a mandate which the state was going to
fund, I would have a lot more -- I would be
voting for it with more happiness. But that's
not the case here. So I one thousand percent
and always have supported increasing the age
from 16 to 18 for persons in need of
supervision. However, I think that we have to
put our money where our congratulations and
our mouths are and say how exactly it is we're
going to pay for it.
Thank you, Madam President.
THE PRESIDENT: You're welcome,
Senator Duane.
SENATOR DUANE: I'm voting yes.
THE PRESIDENT: How are you
voting, Senator?
SENATOR DUANE: Yes.
THE PRESIDENT: You will be
recorded as voting in the affirmative on this
bill.
The Secretary will announce the
2504
results.
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
644, by Senator Skelos, Senate Print 966, an
act to amend the Penal Law, in relation to
sentencing.
SENATOR MONTGOMERY: Explanation.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: Yes, Madam
President.
This legislation, which passed the
Senate in 1998 and 1999, will eliminate
discretionary parole for violent felony
offenders who have been convicted and
sentenced for three or more violent felonies.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I note that I did not vote on this
legislation last session; I was excused.
But I would like to ask Senator
Skelos if he would just yield for one
2505
question.
THE PRESIDENT: Do you yield,
Senator?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Yes, thank
you.
Senator Skelos, as I read the
legislation, it seems to me that this is
essentially a three-strikes-and-you're-out.
In other words, three strikes and you are -
SENATOR SKELOS: Excellent
definition.
SENATOR MONTGOMERY: Okay. All
right. Thank you.
SENATOR SKELOS: Well, three
strikes and you're in, actually.
SENATOR MONTGOMERY: And you're
in for life, yes. Thank you. Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
2506
November.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: I'm sorry. If
we could withdraw the roll call, with the
permission of Senator Skelos, I had a
question.
THE PRESIDENT: The roll call is
withdrawn.
Senator Skelos, do you yield?
SENATOR SKELOS: Yes, I do, Madam
President.
THE PRESIDENT: All right. Go
ahead, Senator Paterson.
SENATOR PATERSON: Senator
Skelos, what are some of the felony offenses
that would qualify someone to receive a life
without parole after three violations?
SENATOR SKELOS: Kidnapping,
first degree rape or sodomy, burglary, assault
or aggravated sexual abuse.
SENATOR PATERSON: Let's take
burglary, breaking and entering.
SENATOR SKELOS: I said
kidnapping, first degree rape or sodomy, first
or second degree robbery and burglary, assault
2507
or aggravated sexual abuse.
SENATOR PATERSON: Certainly most
of them I don't think you'll find anyone that
does not appreciate the fact that there are
individuals who, it would seem, after
committing such heinous crimes that one time
would be enough to convict them. So the fact
that it would happen three times shows a real
pattern and practice on the part of the
perpetrator.
But, Senator, burglary, that is the
type of a charge I don't know if it really
fits in the category that three offenses,
which could sometimes be committed by someone
before they're 21 or 22 years of age, would at
that point trigger a life without parole
sentence.
In other words, I'm just afraid
that we have a wider range of offenses in this
legislation than I'd prefer.
SENATOR SKELOS: Madam President,
if I could respond, that with these
individuals, they would have been convicted on
at least two previous and separate occasions
of the violent felony offenses, and the three
2508
violent felonies must have been committed
within ten years.
So I think basically you're dealing
with individuals who haven't gotten the
message and deserve nothing better than going
to jail for life without parole. And these
are probably our most dangerous criminals.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: If the Senator
would continue to yield.
THE PRESIDENT: Does the sponsor
continue to yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Senator, I
don't want to confuse the issue. I don't want
you to be disabled from passing a legislation
along these lines, because I think that you
have a very good idea and I think we'll all
feel a lot safer if the type of persistent,
violent felons you describe are taken off the
2509
streets. I think we have agreement on that
point.
I'm just asking you about some of
the offenses that you've included in the
legislation. For instance, when you said that
when the person is convicted the third time,
they've been convicted two previous times,
could it be three burglaries, like a cat
burglar?
SENATOR SKELOS: These are
persistent, violent felony offenses.
SENATOR PATERSON: Madam
President, if the Senator will continue to
yield.
THE PRESIDENT: You have the
floor, Senator Paterson. Go ahead.
SENATOR PATERSON: Oh. Oh, thank
you.
THE PRESIDENT: You're welcome.
SENATOR PATERSON: Then my
question to Senator Skelos is, where is there
necessarily violence in a burglary charge?
You see, what I'm afraid of is that on the
third conviction that the sitting judge has no
discretion at this point.
2510
And I am just very concerned that
the meaning of your legislation -- what you're
actually describing, I have absolutely no
problem with it. But I just want to make sure
that we're not creating lesser included type
of offenses.
In other words, where the person
might not have been violent but, because of
the delineation of the laws we put into
legislation today, that we might wind up
handcuffing the judge. In other words,
everybody will know that this person wasn't
really violent but they've been sent away for
the rest of their life.
That's all I'm trying to avoid, and
I just wanted some explanation on that point.
SENATOR SKELOS: These crimes
that we're talking about have been defined in
the Penal Law as violent felony offenses.
That means the Legislature at some point and
the Governor have agreed that they are to be
defined as violent felony offenses.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Mr.
President -- Madam President, I'm sorry.
2511
THE PRESIDENT: I'll accept that,
the latter reference.
SENATOR PATERSON: Any punishment
due upon me now, Madam President, I gladly
accept. And if I do it three times, I'll
leave here and I'll never come back for the
rest of my life.
(Laughter.)
SENATOR PATERSON: But if the
Senator would yield for one last question.
SENATOR SKELOS: Yes, Madam
President.
SENATOR PATERSON: On the same
line of questioning that I've been seeking,
Senator, what about an individual who is
convicted three times of assault because this
person goes into bars and has a few too many
and gets into fights with people? And
although they have not endangered their lives
per se, they're just the kind of person that
gets provoked.
And I think there are a lot of
younger people around the state who, you know,
don't learn their lessons and within ten years
can get into three types of altercations. And
2512
yet I don't know if I'm ready to send them
away the way I would want to send away a
first-degree robber, a rapist, a murderer.
You know, you've got -- you've
really put some very positive legislation
forward. And I just want to make sure that
some of the charges that you've put here at
the end are not confusing us with the type of
felon, the predicate felon which you, along
with the rest of us, would like to stop.
SENATOR SKELOS: Remember,
they've been convicted on two previous
occasions. And if they're going around in
bars, with the example you've used, beating up
people, I would say that if they haven't
learned their lesson, I'm not going to wait
until they murder someone.
SENATOR PATERSON: Thank you,
Madam President. On the bill.
Senator Skelos has, in my opinion,
an idea that, if executed properly, could
certainly increase the value of public safety
in the state and therefore increase the
quality of life in this state. And it is that
when you have violent felonies, when you have
2513
predicate felons, individuals who it wouldn't
matter how many times you try to rehabilitate
them, when they get out, they're going to harm
someone, it appears that incarceration has
absolutely no effect on their conduct, and we
give them a life without parole sentence, I
think we might all agree that this is -- that
they have left society no choice, as a matter
of public policy.
At the same time, we do not want to
start institutionalizing criminal justice to
the point that we don't need judges in the
courtroom, we just have a computer that spits
out data based on their prior convictions or
prior encounters with the law.
And because of that, I think that
we have to be scrupulously fair and take extra
care of those counts of the law that we
include in a battery of three consecutive
convictions within a ten-year period
triggering the life without parole statute.
And if we're going to do that, we
have to remember that in doing so, we don't
want to create an impression that we cannot
rehabilitate some people who at a time when
2514
they were younger and a little out of control
and did not understand the full meaning of
their actions, and none of the victims of
their crimes were so severely hurt, that we
want to have the kind of retribution that life
without parole brings. I think that we have
to limit the number of charges that we put in
this legislation.
And for that reason, I would urge a
no vote on this bill, with the proviso that if
Senator Skelos would take a second look at it
and just abridge some of the charges that he's
put in the legislation, I don't think this
problem -- this bill will have any problem
passing through the Senate and our
accompanying house, in the Assembly.
THE PRESIDENT: I'm going to
again ask the members and the staff to please
take their conversations out of the chamber.
Senator Markowitz -- Senator
Marcellino, excuse me.
SENATOR MARCELLINO: Thank you,
Madam President. It's an easy mistake. I've
often been mistaken for Senator Markowitz. He
spends a lot of time in restaurants in my
2515
district.
THE PRESIDENT: I must have been
to some of them.
SENATOR MARCELLINO: Undoubtedly.
On this particular bill, I've heard
the comments of Senator Paterson, a gentleman
I respect greatly.
However, let's remember, when we
talk about three violent convictions,
statistics have shown us that these
individuals who have been arrested and caught
three times probably have not been arrested
dozens of other times in between.
These are not people who have just
erred once or twice and gotten up and made a
mistake and -- these are people who have
developed a way of life. They have developed
a way of life of criminality. They violate
people's homes, they violate people's persons.
They injure, they maim, and they destroy.
Anyone who has had their home
broken into knows what it feels like, that you
don't feel safe ever again in that home. I've
had neighbors whose houses have been broken
into, and they tell me going home, going back
2516
to that home, has never been the same. They
feel violated. They don't feel safe. They've
put in burglar alarms and all kinds of other
mechanical devices to protect themselves, and
they still don't feel safe in their own home.
This is not something that we
should be tolerating. This is not something
that we can allow. We have to reach out, we
have to protect our citizenry, and we must
take these people who continuously and
continually repeat and repeat and repeat these
kinds of offenses.
This is some -- these are the
people we want off the streets. These are the
people who damage and hurt. And these are the
people who obviously, it's been proven, do not
learn. They simply do not learn. If they
could learn, there are so many programs out
there. We've talked about them many times.
There's program after program to rehabilitate,
to counsel, to encourage people onto the right
directions. They simply don't take advantage
of them. They don't want to, because they
have entered a life of crime and they like it.
And there's no other way to describe it.
2517
So I'm going to vote aye for this,
and I would encourage everyone in this chamber
to vote aye on this particular piece of
legislation. It's time we as a chamber, we as
a state stood up very, very strongly and said
this kind of behavior is intolerable, we will
not accept it, we will not allow it, and we're
going to put people away who continuously
enter into and continuously perform this kind
of behavior.
I vote aye, Madam President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Montgomery, to explain your vote.
SENATOR MONTGOMERY: Yes, Madam
President. Briefly, on the bill.
Notwithstanding Senator
Marcellino's admonition that we should all
vote yes on this, I'm going to vote no. And I
2518
think there are obviously a number of reasons.
But first and foremost is that
every criminal justice professional group,
organization in the nation -- in the world -
knows that our criminal justice system is an
abomination, especially as it relates to the
way that we have attempted, total failure, to
deal with the problem of drugs in our country.
We know that the largest percentage
of people who are incarcerated in this nation
are there because of drug-related activities.
I interviewed a person who said that the State
of New York spent well over a million dollars
to incarcerate him, and essentially he was not
able to rehabilitate himself until he received
drug treatment.
Once he received drug treatment, he
was on a path to recovery. And he's changed
his life, he's reorganized his family, he is
employed, and he is a productive citizen. But
it was not until after he received drug
treatment.
So we know that that's number one
in terms of the need to rehabilitate people.
A lot of this kind of crime that we're talking
2519
about that would be covered by this
legislation is crime related to drugs. And if
we treat drugs, then we're certainly going to
treat further or we're going to eliminate
further the problem that we have with crime.
We also know that we have taken
away incrementally, one by one, step-by-step,
any discretion of the judiciary. And to the
extent that we do that, we undermine the basis
of our Constitution and our government.
So I don't know why we're rushing
to now do something in New York State that has
already been proven to be totally unsuccessful
as it relates to reducing and addressing crime
at both the federal level -- and certainly we
have the example of California. It does not
work. Their penal system is exploding, and
larger and larger amounts of money are going
into that penal system. And it does not
address the issue that we claim to be
addressing.
So I'm voting no. I hope that my
colleagues will also vote no. Because this is
not in any way an answer to the crime problem.
We need to leave it more up to judges to have
2520
more discretion. I wish that we would go back
to that. We would strengthen our judicial
system as it relates to addressing this issue.
And let's try to figure out as a
legislative body how we can address the
problem of crime that is related to drugs in
this state.
I vote no.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President, to explain my vote.
THE PRESIDENT: You're welcome.
SENATOR PATERSON: I think that
Senator Montgomery covered most of the points
that I would like to address. But I just want
to restate my objection to the vagueness of
some of the charges that are included in this
legislation.
For instance, I won't even get into
the multiple types of counts for rape and
sodomy that exist in this legislation. But
one that I think would be easier for everyone
to understand would be the charge of burglary.
There are three different counts of
burglary that we have in our Penal Law. They
2521
draw the distinction between burglary
committed at a residence, burglary committed
at a business. They also draw the distinction
between violence that is committed during a
burglary and situations where maybe someone
breaks into an abandoned building or something
like that and there's no one even there.
But the legislation just says
burglary. It doesn't say which count it is.
Now, I don't think that my constituents will
mind if I vote against this legislation until
we have further clarification of those
elements that are in and those that are out,
particularly at a time when someone's life is
at stake.
So on the birthday of a great
freedom fighter, Senator Ada Smith, in her
honor I'm going to vote no on this legislation
and urge all my colleagues to do so.
THE PRESIDENT: Senator Paterson
and Senator Montgomery, you will both be
recorded as voting in the negative on this
bill.
The Secretary will announce the
results.
2522
THE SECRETARY: Those recorded in
the negative on Calendar Number 644 are
Senators Duane, Montgomery, Paterson, Sampson,
Schneiderman, A. Smith, and M. Smith. Ayes,
50. Nays, 7.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
646, by Senator Balboni, Senate Print 1481B,
an act to amend the Civil Practice Law and
Rules, in relation to prohibiting.
SENATOR DOLLINGER: Explanation,
please.
THE PRESIDENT: Senator Balboni,
Senator Dollinger has requested an
explanation.
SENATOR BALBONI: Thank you very
much, Madam President.
It is indeed an honor to follow the
brilliant debate by Senator Skelos. And I
hope to do at least as well as he did.
This is a bill that has now been
through this chamber for its third time, Madam
President. And of course hope springs eternal
that this is the year that the State Assembly
2523
will pick this up and make this a part of the
laws of the State of New York. Because I know
that the Governor would sign this.
This bill would add a new section,
1411a, to the Civil Procedures Law, and -
actually, the Civil Procedure Law and Rules.
And essentially what it would say is if it is
found that a plaintiff's culpable conduct
results in a felony conviction, then that
plaintiff's culpable conduct is suitable for
the basis of a motion for summary judgment and
they would be barred from suing and receiving
monetary compensation in state court in New
York.
A more succinct statement I don't
have.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, will the sponsor yield to a
question?
THE PRESIDENT: Does the sponsor
yield?
SENATOR BALBONI: With delight.
THE PRESIDENT: You may proceed,
2524
Senator Dollinger.
SENATOR DOLLINGER: I'll ask with
delight as well, Madam President.
Senator Balboni, you and I debated
the merits of this bill last year. I want to
focus on just one procedural aspect of it. In
your proposal you amend the CPLR to create an
award of attorney's fees in the benefit of the
defendant and against the claimant. Is that
correct?
SENATOR BALBONI: That is
correct. That is on line 13 of Section 2.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Balboni would
continue to yield.
THE PRESIDENT: Does the Senator
yield? Senator Balboni, do you continue to
yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Through you,
Madam President.
Senator Balboni, if this proposal
2525
does become law as you wish, that will in fact
be the only instance in the CPLR where we
award attorney's fees against someone who
files a claim; is that correct?
SENATOR BALBONI: I do not know
that answer.
SENATOR DOLLINGER: Okay.
Through you, Madam President, if Senator
Balboni will continue to yield.
THE PRESIDENT: You have the
floor, Senator Dollinger.
SENATOR DOLLINGER: Are you
familiar with any other provision in the CPLR
which awards attorney's fees to the party
who -- or punishes a party for commencing an
action by awarding attorney's fees if they
lose?
SENATOR BALBONI: Attorney's
fees, no.
But I would draw your attention, as
I'm sure you're well aware, to the frivolous
lawsuit provisions of the CPLR, the citation
of which I do not have in my hands.
SENATOR DOLLINGER: Okay.
Through you, Madam President, that's a perfect
2526
segue. If Senator Balboni will continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: Go ahead,
Senator.
SENATOR DOLLINGER: Isn't it a
fact, Senator Balboni, that the only time
we've awarded attorney's fees as a matter of
course under the CPLR is when claims are
deemed to be frivolous under current law; is
that correct?
SENATOR BALBONI: Is that
correct? You know, this sounds so much like
cross-examination. We've been over this
before, Senator. This is not a courtroom, and
I don't have the citation. So I've answered
it before. Asked and answered. I do not
know.
(Laughter.)
SENATOR DOLLINGER: All right.
And I guess my final question, Madam
President, through you, is -- if Senator
Balboni will continue to yield.
2527
THE PRESIDENT: You have the
floor, Senator.
SENATOR DOLLINGER: Doesn't this
stand the notion of awarding attorney's fees
on its head? Isn't the rule both in federal
practice -- mostly in federal practice -- that
if a party substantially prevails, they are
entitled to attorney's fees?
This would be only instance I've
ever seen in which someone would say if you
don't prevail, you're punished with attorney's
fees. Are you familiar with any other
corollary for this in any other statute,
either on the state or federal level?
SENATOR BALBONI: Actually, I'm
not familiar with any corollary or any other
statute that would permit a convicted rapist
from suing the homeowner because he tripped
and fell over the skylight while trying to
enter the premises.
I'm not aware of any other state
statute that is so much of an outrage that
would allow someone who is trying to commit a
burglary to bring a lawsuit against the
homeowner. I'm not aware of any other
2528
statutes that would address the situation.
But I'll tell you this. This
situation is meant to provide a deterrent, not
only in terms of the result of the civil
action, and do it expeditiously, in the form
of a motion for summary judgment, but also as
a deterrent -- not only a deterrent in terms
of the lack of recovery, but a deterrent
against the individual who would seek to bring
the action in the first instance.
SENATOR DOLLINGER: Thank you,
Madam President. I have no further questions
of Senator Balboni. I'd like to be heard on
the bill.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: I appreciate
Senator Balboni's candor. I'm going to assume
that the last answer is translated most
succinctly as no, you're not familiar with any
other statute in which we turn the law of
prevailing parties on its head.
I debated the merits of this bill
with Senator Balboni last year. Nothing in
this bill has changed my mind about this being
a bad policy judgment.
2529
Senator Balboni, when he wrote this
bill, I'm sure had in mind convicted rapists.
I have in mind the innocent trespasser who
happens to trespass on a particular piece of
property for which they end up with a felony
trespass and all of a sudden they're entitled
to -
SENATOR BALBONI: Would the
gentleman yield for a question, please?
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Would the
gentleman yield to a question, please?
THE PRESIDENT: Senator
Dollinger, do you yield?
SENATOR DOLLINGER: I would be
glad to, Madam President.
SENATOR BALBONI: Are you
familiar with the concept of mens rea?
SENATOR DOLLINGER: Yes, I am,
Madam President.
SENATOR BALBONI: What is mens
rea?
SENATOR DOLLINGER: Is that a
question through the chair, Madam President?
SENATOR BALBONI: It's through
2530
the chair.
THE PRESIDENT: He was looking at
me.
(Laughter.)
SENATOR DOLLINGER: Would Senator
Balboni like me to yield to another question,
Madam President?
SENATOR BALBONI: Would you yield
to another question?
SENATOR DOLLINGER: Yes, I will,
Madam President.
SENATOR BALBONI: Are you
familiar with the concept of mens rea?
SENATOR DOLLINGER: Yes, I am,
Madam President. The answer is yes.
SENATOR BALBONI: Madam
President, through you, would you like to tell
the body what mens rea means?
SENATOR DOLLINGER: Mens rea
means that there is a state of mind or the
mental condition, the mental predicate
necessary for it to support criminal activity.
SENATOR BALBONI: Madam
President, through you, would the gentleman
yield to another question?
2531
THE PRESIDENT: Senator
Dollinger, do you continue to yield?
SENATOR DOLLINGER: Yes, Madam
President, provided this isn't the bar exam.
(Laughter.)
THE PRESIDENT: You may proceed,
Senator Balboni.
SENATOR BALBONI: Not yet it
isn't.
In your illustration you referred
to the crime of trespass. Is there a mens rea
element, to your knowledge, in that particular
crime?
SENATOR DOLLINGER: Through you,
Madam President, I'll go back to the Barberi
[ph] course in 1980, and I think the answer is
yes. But I stand to be corrected if I'm
wrong.
SENATOR BALBONI: Madam
President, one final question for the
gentleman.
THE PRESIDENT: Senator
Dollinger, do you yield for a final question?
SENATOR DOLLINGER: Yes, I will,
Madam President.
2532
THE PRESIDENT: You may proceed,
Senator Balboni.
SENATOR BALBONI: So then your
statement to us that there is an innocent
trespasser, is that a possibility, to be
convicted of a felony?
SENATOR DOLLINGER: Yes, Madam
President, it actually is. Because the crime
doesn't necessarily involved mens rea. That's
a crime where if you're on the property,
whether you intended to be on it or not, if
you are in fact on the property, you can be
convicted of a trespass. That's my
understanding of the criminal law.
And frankly, given the fact that
we've substantially increased the penalties
for most crimes in this state -- including, I
think, trespassing, in the time that I've been
here in the last seven years -- I have little
doubt that there are types of trespass where
mens rea is not a factor, it's simply that you
are on someone's else's property unlawfully.
And I don't believe there's a defense that "I
didn't intend to be there."
SENATOR BALBONI: Madam
2533
President, one last question, please.
THE PRESIDENT: Senator
Dollinger, do you yield for an additional
question?
SENATOR DOLLINGER: I would be
glad to, Madam President.
THE PRESIDENT: Go ahead, Senator
Balboni.
SENATOR BALBONI: Would you care
to tell me which criminal trespass is a felony
under the New York State Penal Law?
SENATOR DOLLINGER: Madam
President, through you, I don't know. I don't
have my Penal Law right here in front of me.
SENATOR BALBONI: Madam
President, I might just suggest to this
gentleman, by the way of the question, that he
might want to check the Penal Law. Because to
my knowledge, there is no such thing as a
felony trespass.
Thank you, Madam President.
SENATOR DOLLINGER: Thank you,
Madam President. I assume that was a question
to me as well, because I had the floor. I
agreed to yield to a question.
2534
THE PRESIDENT: Senator
Dollinger, you still have the floor.
SENATOR DOLLINGER: Thank you,
Madam President.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: I just -- I
want to go back. And we did discuss the
substance of this bill last year. And I
thought it was a bad idea then. I don't think
anything has appeared in this text which
convinces me it's a better idea this year.
But I want to just focus on the
attorney's fees provision. The law in this
nation is pretty clear. You are entitled,
under the attorney's fees statute -- and we
have statutes that grant attorney's fees
provided that you can prove that you are a
prevailing party. You only get them if you
can prove that you've substantially prevailed.
That's the general rule in the United States,
even in attorney's fees statutes under the
federal Civil Rights Law and others.
What this bill does, not only does
it appear to adopt the English rule -- the
English rule. Remember, we have the American
2535
rule, and we gave -- we adopted our own rules
because we didn't like the English rules. I
would point out to Senator Balboni that's what
the Revolution had to do with, was throwing
out English rules and substituting American
rules.
But we have an American rule that
says you can go to court and you don't have to
pay the other side's attorney fees unless -
unless -- one of the parties can show they
substantially prevailed.
This proposal stands that idea on
its head, because it says that the defendant
must prove -- that if the defendant does not
prove that he substantially prevailed, then he
has to pay attorney's fees. It completely
flips not only the notion of the substantive
award of attorney's fees, but it changes the
whole idea of what a prevailing party is and
when you're entitled to them.
I would submit that what this does
is this takes what is a bad policy judgment -
that is, stripping someone of their ability to
bring a civil action because they have engaged
in certain conduct, not only -- and there are
2536
plenty of ways that we protect against those
kinds of actions, through -- and Senator
Balboni is correct, through our sanctions for
frivolous cases.
This says that even if you have a
nonfrivolous case, and even if under Basso
against Miller, which is the trespass statute
or the trespass case in the Court of Appeals
that set up the reasonableness test of the
conduct of plaintiffs and defendants -- but
this says you can have a nonfrivolous case in
which you happen to engage in a felony, a
felony trespass, and if you lose, you have to
pay attorney's fees.
It seems to me that this jumbles
again the law of this state. This would only
create greater confusion, not only as a
substantive matter but as a procedural matter,
and sets a dangerous precedent for the
punitive use of an attorney's fee award
against someone who may be trying to change
the law of this state in a reasonable and
cogent way.
I suggest that this is not only bad
policy, this is bad procedure as well.
2537
THE PRESIDENT: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. I'd like to speak on the
bill, knowing that Senator Balboni will
interrupt to ask questions if it's necessary.
(Cell phone ringing.)
SENATOR SCHNEIDERMAN: Sorry.
It's Norman Adler.
(Laughter.)
THE PRESIDENT: That's not
Senator Balboni.
SENATOR SCHNEIDERMAN: It's not
Senator Balboni.
On the bill, I must say I
appreciate the -- some of the concerns about
people appearing to recover from their own
misconduct. However, I really do find this
particular piece of legislation to be
offensive in a very fundamental way, because
it is so hostile to our civil justice system,
which in my mind is really one of the great
jewels of our constitutional structure.
We already have a common law
doctrine that if you go to trial, all the
2538
criminals you're talking about in your
ludicrous and grotesque and horrendous
examples would lose. They'll lose under the
law of the State of New York now. They're
going to lose. That's the problem.
It's not a bad thing for people to
be able to seek redress for their injuries in
court. And the combination of the substantive
provisions and this attorney's fees provision,
this is a just a very -- a bill that's very
hostile to the civil litigation system.
And I have to tell you, having
spent time in other countries that have other
systems, we pay a price for the civil
litigation system. We pay a price for having
people go to court. People are outraged about
trial lawyers. I suppose that's a word that
resonates the way that "welfare cheats" did
once. It's just something that's a hot
button.
But civil litigation is a very good
thing in this country, people having their day
in court to prove their case. And, you know,
there are examples, outrageous examples on
both sides presented in the memos to this
2539
bill. Obviously of some concern to some of us
in New York City is recent police misconduct,
is that if someone is apprehended for, you
know, stealing a coat and the police cause
serious injury to that person, then this would
immunize the police from any sort of civil
liability.
I don't think that's good as a
matter of public policy. I think the law as
it stands now already prevents criminals from
recovering under the circumstances that we're
most concerned about. And I don't really see
the reason for this sort of hostility to the
ability to have your day in court.
So I vote no, and I encourage
everyone else to vote no.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
I had some notes about some issues
I wanted to cover in this legislation, and now
I see why Senator Schneiderman was over here
at the desk a little while ago. He took my
notes and said everything that I was going to
say.
2540
But I will just add that in the
federal system the only place that I notice
that attorney's fees are awarded were the
attempts to get lawyers to take civil rights
cases. So the attorney fees were granted to
encourage lawyers to take those cases because
there was a presumption by the federal court
that there would not be the interest in taking
those types of cases.
In the present case, the attorney's
fees are being used as almost a penalty for
bringing this type of a charge. And although
it would seem egregious for the perpetrator of
a crime, someone who has committed a felony,
to then be suing when in fact they are the one
who raised the specter of danger by engaging
in this type of activity, to then go to civil
court and sue the victim or the police or
anybody who injured them seems preposterous.
But you know whose jurisdiction it
is to tell us that it's preposterous? The
court. And in that one case, the McCummings
case, the court didn't. They awarded $4.2
million in damages to the victim -- sorry, to
the felon who committed a crime against a
2541
victim, who was then shot and received this
award.
I don't think we need to legislate
the exception, Madam President. I encourage a
no vote on this bill.
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Madam
President, if I might, just to respond.
And let me just take a minute and
tell you how gratifying it is to be able to
stand on the floor of a chamber and at least
talk about this issue. In the other house I
had introduced this bill for many, many years
and never even got it to the floor. Could
never have a discussion on any aspect of it -
not amendments, not motions to discharge. You
think our rules are tough, you should see
their rules. They make us seem like an open
and free society.
So this is the first time we can
stand here and we can talk about the concepts
that accompany this bill. And what always
becomes so frustrating to me is that this is
not rocket science, this is common sense. And
it's not common sense because of my
2542
constituents who are Republicans who want
this; it is common sense for all of your
constituents too. It's for your seniors that
we're doing this, perhaps the ones who live in
not-so-good neighborhoods. They're nervous
about people coming to their house at night
and worried about the ability to have justice.
We hear that all the time, justice.
You know what justice is predicated on? An
understanding that the law as applied to each
and every individual is fair. That's all this
bill seeks to do. And every time we try to
attack the provisions of this bill, all we're
doing is trying to make up examples that don't
fit. But in doing that, we gloss over the big
picture.
Senator Schneiderman, you said that
the felon loses his day in court and that
offends you because that's offensive to our
civil justice system. Are you aware of the
fact that under Section 79 of the Civil Rights
Law, the individual loses their right to vote?
It's called civil death. And under the
provisions of the Penal Law -- this is a
rhetorical question.
2543
SENATOR SCHNEIDERMAN: Oh, I
couldn't distinguish it from the earlier
question.
SENATOR BALBONI: -- under the
Penal Law, that the convicted felony forfeits
their property?
The convicted felon, ladies and
gentlemen, that's who we're talking about.
We're not talking about a litigant here.
My whole attempt here is to single
out the convicted felon and strip them of
their ability to come back in and laugh at all
of us. They're laughing at us, ladies and
gentlemen. They're laughing. They're saying,
Your civil system stinks, because I'm going to
go out there and I'm going to commit a felony
and be convicted of it and then I'm going to
come back and use your courts and then stick
your nose inside of it.
That's what's happening. And
that's how the public understands it. But yet
what we always do here, we come back and we
say, No, no, no, that's not the point. The
point is we're going to find some technical
exclusion that doesn't fit the process. Well,
2544
ladies and gentlemen, all we do, every year we
try to do this, is we ignore the fact that the
Court of Appeals has already ruled on this,
guys. We've never overturned it.
Barker versus Kallash. The Court
of Appeals has already enunciated what the law
of the state is, but yet the courts won't
apply it, because they don't have a statute.
I know that from personal experience. The
trial courts need guidance. That's our only
reason to be here.
And you don't lose your day in
court. That's a bunch of baloney. Because in
the real world -- because the thing that
wasn't mentioned today is police brutality.
That's always been the issue that people have
talked about. But in reality, police
brutality is effectively handled through the
initiation of a civil rights 1983 action in
federal court, and through a conviction of a
felony of the police officer. That's done
with brutality. That's the most effective
deterrent, not a civil lawsuit in state court.
That's ridiculous.
And I'll say this again. Any civil
2545
rights plaintiff's attorney who brings a
police brutality case in civil State Supreme
Court is not worth their salt. Because any
practitioner knows that the federal case -- in
federal court you have a board of discovery,
it's more expeditious, and you get attorney's
fees. So you're doing your client a
disservice.
So all this bunk about how we're
taking away the civil ability in this state is
wrong. It's just plain wrong. And you know
what, I will say this also. There is too much
litigation in this state. And there is too
much in this nation. You compare our country
with other countries -- and I'm a trial
attorney -- there's too much litigation.
And what I dislike is -- yes, our
right is sue is very precious and it's a part
of our Constitution. But don't ever say that
when we go and we start a case that you're not
setting something in motion that costs money,
costs people's time in hours. Just go ask the
juries that sit in Supreme-Nassau,
Supreme-Manhattan, Supreme-Ulster. Go ask
about their time.
2546
And now you're going to bring a
case where a convicted felon, because of their
culpable actions, are now going to try and sue
and seek damages? That's what they're going
to sit there and listen to? It's an outrage.
It's been an outrage since we introduced this
bill, since the appellate division affirmed in
the McCummings case.
And what we never do -- and this is
my last point -- is we never talk about the
victim. We never talk about the victim in
this chamber. Do you know what happened to
Sean Dunphy? His head was bounced off the IRT
subway platform ten times. Suffered a cranial
contusion. He was hospitalized. And what was
his crime? He was standing on the IRT subway
platform. That was it, nothing else. We
never talk about him, because he's not sexy.
Well, we'll talk about Bernard
McCummings, that punk, that punk who goes and
gets this guy with his friends, throws him
down, victimizes him, and then has the
unmitigated gall to use our civil justice
system to bring a suit, and then our court
system sustains it and affirms it and gives
2547
him $4.3 million.
Ladies and gentlemen, that's wrong.
I don't care what district you live in, I
don't care what constituency you represent,
that is wrong.
We should pass this bill today, and
we should send this to the Assembly and say,
You got objections? Fine, let's work them
out. Let's make this the law.
Thank you, Madam President.
THE PRESIDENT: Senator Nozzolio.
SENATOR NOZZOLIO: Thank you,
Madam President and my colleagues.
As chairman of the Crime Victims,
Crime and Corrections Committee for a number
of years, I carried this legislation. For a
number of years this house, virtually
unanimously, passed it and sent the message
clearly to the criminals of this state that
they, stepping beyond the bounds of our
criminal justice system, must bear the
consequences and can't use that system for
their own exploitation.
Senator Balboni, upon coming to
this chamber, is very, very passionate, as you
2548
can see and hear, on this issue. It's an
issue that he believes so strongly in and
should be congratulated for going above and
beyond in researching, in looking into the
legal nuances of this issue.
But it all boils down to the simple
statement that those who step outside the
bounds of our criminal justice system, who use
it to exploit, to steal, to rob, to hurt,
should not be allowed to come back into that
system to utilize it against the very victim
that they have victimized in the first place.
It's a measure of common sense.
It's a measure that's laughable outside this
chamber to think that we as a state do not
forbid this type of heinous behavior.
Senator Balboni, you are to be
congratulated and thanked for the passion you
bring to this issue, for the detail of which
you have undergone research. And I think it's
certainly something that we need to have as
our -- in our criminal code, in our civil
code. Thank you very much, Senator Balboni,
for your efforts on this issue.
And, Madam President, I certainly
2549
urge our colleagues to support it.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator
Dollinger, to explain your vote.
SENATOR DOLLINGER: Madam
President, may I just explain my vote?
I have three quick points of
disagreement with Senator Balboni. One, you
got this bill to the floor of the Senate,
Senator Balboni. I congratulate you. It's
too bad that ideas in both houses of the
Legislature don't make it to the floor on
their merits, they make it almost exclusively
on the basis of your political party. I would
like to see that changed. I think that would
be a good change.
Secondly, Senator Balboni, I
couldn't disagree with you more that there's
too much litigation. I'm sick and tired of
hearing these people with 1950 views of the
2550
world that suggest we all live in this
wonderful world where we buy safe products,
where everything that's produced is fine,
where we make contracts with our friends with
handshakes.
That isn't the world in which we
live, Senator Balboni. It's a world in which
there are disputes, people don't -- people are
making contracts with people in other nations.
That's what litigation is all about. I'm
proud to stand here and say that more and more
people are asserting their rights. That can
only be a good thing.
And last, let me conclude with
there's one piece of litigation, Senator
Balboni, that should have been brought that
would have addressed this problem. There's
one piece of litigation that you left out -
why Sean Dunphy's lawyer didn't sue McCummings
for beating his head against the Long Island
Railroad track. And when McCummings got the
judgment against the City of New York,
Dunphy's lawyer could have attached it, and
then he would have been paid in full.
That's the kind of good lawyering
2551
that we need. That's the kind of litigation
we ought to bring so that justice is done. I
would just suggest that rather than too much
litigation, in Sean Dunphy's case there wasn't
enough. If he'd had the right lawyer, he
would have been paid instead of McCummings.
THE PRESIDENT: Senator
Dollinger -
SENATOR DOLLINGER: I vote no.
THE PRESIDENT: How do you vote,
Senator?
SENATOR DOLLINGER: I vote no.
Thank you, Madam President.
THE PRESIDENT: You will be so
recorded as voting in the negative.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President, to explain my vote.
I join Senator Nozzolio in
respecting Senator Balboni's passion and
commitment to this issue. I think that his
passion is misplaced in this case, but I
respect it nonetheless.
I would like to make two brief
points. One is to say that I don't -- you
2552
know, I think it's nice that we're debating
this bill and it's to the floor in this house.
I'm sorry for his negative experiences in that
other jurisdiction. You talk sometimes like a
refugee from Cuba, but I appreciate the
traumatic effect it had on you.
However, in this house, sir -
through you, Madam President, I guess -- there
are bills we should be bringing to the floor
this year. And if our concern is for victims,
well, let's deal with the concern for victims.
I've been just handed a press
report today, two tenants in a senior citizens
apartment were shot to death by a fellow
resident after they criticized his
inappropriate language.
The bills that don't come to the
floor in this house are bills to get guns off
the streets and out of the hands of the wrong
people. And I urge Senator Balboni to put his
considerable energies, talents, and
intellectual ability to bring those to the
floor before this session ends.
I vote no.
THE PRESIDENT: Senator Paterson.
2553
SENATOR PATERSON: Madam
President, I vote no.
THE PRESIDENT: You will be so
recorded, Senator Paterson.
Senator Balboni.
SENATOR BALBONI: I apologize if
I got a little too passionate. This is
something I really believe in.
And the last point I'd just like to
make in response to Senator Dollinger -- this
is not debate, but we can sit here in these
hollow chambers and we can talk about what
should have been done. The reality was
Bernard McCummings was judgment proof on the
day that he committed this crime. He was
judgment proof a year later when the statute
of limitations ran for a civil lawsuit. So,
so much for the big talk about attaching
anything.
This is the real world, ladies and
gentlemen. We should prevent these suits from
happening.
Thank you.
THE PRESIDENT: You will be so
recorded as voting in the affirmative, Senator
2554
Balboni.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 646 are
Senators Connor, Dollinger, Duane, Markowitz,
Mendez, Montgomery, Paterson, Rosado, Sampson,
Schneiderman, A. Smith, M. Smith, and Senator
Stavisky. Ayes, 46. Nays, 13.
THE PRESIDENT: The bill is
passed.
Senator Mendez.
SENATOR MENDEZ: Madam President,
I'm requesting unanimous consent to be
recorded in the negative on Calendar Number
644.
THE PRESIDENT: Senator Mendez,
you will be so recorded as voting in the
negative, without objection, on Calendar 644.
SENATOR MENDEZ: Thank you.
THE PRESIDENT: The bill is
passed.
The Secretary will read.
THE SECRETARY: Calendar Number
689, by the Senate Committee on Rules, Senate
2555
Print 6178, an act to amend the -
SENATOR SKELOS: Lay it aside for
the day.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
690, by Senator Maltese, Senate Print 7418, an
act to amend the Election Law, in relation to
presidential primaries.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Maltese,
an explanation has been requested.
SENATOR MALTESE: Madam
President, this bill is an act to amend the
Election Law in relation to presidential
primaries.
Briefly, the bill would reform the
process by which the Republican Party conducts
its presidential primary in New York State by
opening the ballot to all presidential
candidates who qualify by three alternative
methods. The first, those who qualify for
federal matching funds; second, those who are
nationally recognized; and third, those who
are able to gather petitions with at least
2556
5,000 signatures from registered party members
throughout the entire state.
This act also provides for the
casting of votes directly for the presidential
candidates rather than the delegates, and that
has previously been the case with the
Republican Party.
Next, the act calls for the
adoption of a winner-take-all for the awarding
of convention delegates.
And, lastly, the act provides for
the opening of polling places throughout the
state for presidential primaries from
6:00 a.m. to 9:00 p.m.
The bill adds new sections calling
for the selection of delegates from New York
State. They shall be -- it shall be -- well,
let's do it this way.
SENATOR CONNOR: Explanation
satisfactory.
(Laughter.)
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Thank you, Madam
President.
I have an amendment that I'll offer
2557
in a minute. But let me say what -- the
position I'm taking on this is incumbent upon
me as the Democratic leader by the national
rules of the Democratic Party.
What we've had on the books for
many, many years is a permanent law dealing
with the selection of national convention
delegates. Some twenty-some years ago,
because of Democratic national rules, the
Democrats in this Legislature and the
then-Governor obtained -- and what we've done
every four years is adopted a law applying to
that year. There's one in effect for the year
2000 for the Democratic Party on delegate
selection and ballot access and so on.
By and large, over the years the
Republicans in this state relied upon the
permanent law with some changes. In fact,
there were some changes, good changes to the
permanent law adopted last year at the behest
of the Republican Party, making the number of
signatures less, for example, making it easier
to get on the ballot. Although regrettably,
as we saw, not easy enough to get on the
ballot.
2558
I certainly applaud the Governor
for this proposal and for his message
necessitating an immediate vote so we can be
ready for year 2004 as soon as possible.
The problem is what Senator
Maltese's bill is doing is it's substituting
this bill for the permanent law. And this
bill, in a couple of respects, is offensive to
Democratic Party national rules. And in fact,
were we to elect our delegates under this law
as proposed by Senator Maltese, our delegation
could be challenged and not seated at the
convention in 2004.
Now, the answer, Madam President,
may be, Oh, well, we can do legislation in
2003. Well, the way things work around here
is we've generally done legislation for the
Republicans and for the Democrats at the same
time. It's a deal. It's an understanding.
It would ill-behoove Democrats in this Capitol
to adopt into law this provision,
apparently -- I don't think it solves all your
problems, but apparently solving all the
problems of the Republican Party, and leave
our needs go for a couple of years and come
2559
begging and saying we need legislation just
for us.
That wouldn't be fair. I don't
know why we would want to do that. I don't
know the Democrats in this Legislature in both
houses would want to pay any price then, you
know, exchange bills, whatever understanding,
whatever deals, to get what we need. We ought
to be getting what we need now, even as the
Republican Party is getting what it needs.
Now, what's particularly offensive
to Democratic Party rules in this bill is the
at-large system -
THE PRESIDENT: Excuse me.
Senator Maltese, why do you rise?
SENATOR MALTESE: Would Senator
Connor yield for a question?
SENATOR CONNOR: Yes. Certainly,
Madam President.
THE PRESIDENT: You may proceed,
Senator Maltese.
SENATOR MALTESE: Madam
President, through you.
Senator Connor, did the ranking
Democrat on the Elections Committee and your
2560
other staff advise you that this bill was on
the committee agenda yesterday?
SENATOR CONNOR: Yes, they did.
SENATOR MALTESE: Did the ranking
member, Senator Hevesi, advise you that at
that time when he made some similar
objections, although not the same one, that I
advised him that that was a matter that should
be taken up with you and with the Democratic
leadership in the Assembly and that we would
consider it and that Senator Bruno had
indicated that he would consider it at this
time?
SENATOR CONNOR: No, Madam
President. What we want is a commitment. Not
that it will be considered, we need a
commitment that the Republicans in this house
will accord us the same courtesy we give them.
That's not the same as saying, Oh, present
your things and we'll consider it.
SENATOR MALTESE: Madam
President.
SENATOR CONNOR: Madam President,
if Senator Maltese, on behalf of Senator
Bruno, will make a commitment -- because, by
2561
the way, my amendment does not substitute for
yours. My amendment doesn't touch your
provisions. It just adds our provisions as
another alternative. Because fair is fair.
SENATOR MALTESE: Madam
President.
THE PRESIDENT: Senator Maltese,
why do you rise?
SENATOR MALTESE: Would Senator
Connor yield for a question?
THE PRESIDENT: Senator Connor,
do you yield?
SENATOR CONNOR: Certainly, Madam
President.
THE PRESIDENT: You may proceed,
Senator Maltese.
SENATOR MALTESE: Senator Connor,
have you had the opportunity to discuss your
proposal with Speaker Silver?
SENATOR CONNOR: I have discussed
the matter with the Speaker. But my
conversations with the Speaker, as you may
appreciate, I'll be happy to share you with in
another forum.
SENATOR MALTESE: Well, Madam
2562
President, did you get the approval of the
Speaker and the members of your house to
afford this proposal as far as to -- and the
chairman of the State Democratic Party for
this proposal?
SENATOR CONNOR: Madam President,
my proposal is in conformance with Democratic
national rules, and that's why I'm offering
it.
The fact is, you see, there's a
provision in the national rules that obligates
Democrats in an elected office to either
implement the national rules or resist any
legislation that might bind the Democratic
Party and be offensive to the rules.
So bringing this out in its present
form obligates us to a party vote in the
negative, because in theory it binds us and it
is an affront to our national rules. And the
only way we preserve our good standing is even
if we lose and this becomes law, we have to
use all of our power to implement it.
Now, we won't lose, because I don't
think the Speaker, who is a Democrat, is going
to go against national party rules either and
2563
adopt something that could bind us that's
offensive to our rules.
What I suggest, Madam President -
and by the way, this amendment was okayed by
the executive director of the Democratic State
Committee. I've spoken to the Speaker earlier
about it. Besides being the Minority Leader,
people often talk to me about election law in
my party.
I assure Senator Maltese, Madam
President, that the amendment I'm proposing,
which only binds our party, is in addition to
Senator Maltese's provisions for the
Republican Party, will not be -- it's what we
want. And it matches our rules.
I would say that the one -- the
legislation itself, whether it covers us or
not, is in for some real rough sledding at the
Justice Department. The at-large provision -
the at-large provision, winner-take-all, the
winner-take-all provision, is retrogressive as
it applies to Congressional districts in the
counties of Kings, New York, and the Bronx
which are covered by the Voting Rights Act,
and this legislation would have to be
2564
precleared before it would take effect. No
one has any doubt that winner-take-all will
dilute the influence of minority voters in
those three counties.
I would only point out that while
Governor Bush seems to have done well in most
districts, that Senator McCain won all the
delegates in a number of those Congressional
districts in those three covered counties. He
clearly was the choice in the minority
Congressional districts of the minority
voters, yet under this system that choice
would have been wiped out and Governor Bush
would have won all the delegates.
So, look, it's the Republican
Party's business, Madam President. I think if
you adopt this, you may solve some of your
problems, certainly about ballot access, but
you're going to not get cleared by the Justice
Department to implement the winner-take-all.
But that's your problem.
Our problem is we cannot acquiesce
in passing this to the extent that it purports
and will be the only statute on the books upon
which Democrats -- to which Democrats can look
2565
unless we get future legislation. And so as
it stands now, we have no choice.
I offer my amendment not for a
vote, but really as a friendly amendment to
Senator Maltese. This is what we need. We
need a commitment to do this so that both
parties are on equal footing.
So, Madam President, at this time I
call up my amendment, waive its reading, and I
think I've explained it. I'd just like to put
it to a vote so that, in conformance with our
national rules, Democrats can be on the record
here as upholding what binds us.
THE PRESIDENT: On the amendment,
all in favor signify by saying aye.
SENATOR CONNOR: Party vote in
the affirmative.
SENATOR FUSCHILLO: Party vote in
the negative.
THE PRESIDENT: Senator Goodman.
SENATOR GOODMAN: I'm going to
speak to the bill, Madam President, so I'll
wait just a moment.
THE PRESIDENT: The Secretary
will announce the party vote.
2566
(The Secretary called the roll.)
THE SECRETARY: Ayes, 23. Nays,
36. Party vote.
THE PRESIDENT: The amendment is
defeated.
Senator Goodman, you wish to be
heard on the bill?
SENATOR GOODMAN: On the bill,
Madam President.
Madam President, when this
presidential issue arose in Manhattan, we
considered very carefully its implications.
And may I say to you that I'd like the record
to clearly show that in Manhattan, as the
Republican county chairman, working with my
executive committee, we did issue an order to
the effect that no candidate should be
excluded from the ballot on the basis of any
technical grounds, and we refused to go along
with the concept of the elimination of Senator
McCain from the ballot. That, in the fullness
of time, was subsumed in the decision of the
court to put him on the ballot.
But merely as a matter of historic
record, I think it's interesting to note that
2567
in this area, in which I happen to have some
direct interest as county chairman, we refused
to undertake an arrangement whereby there
would be an arbitrary exclusion.
May I say that I think for the most
part this bill carries with it excellent
reform particulars. There's no question that
the arrangements to determine -- to prevent
ballot exclusion in the fashion in which it
was done recently are first-rate. I
compliment Senator Maltese to that effect.
And as to the matter which Senator
Connor has raised, it's quite evident that
this would be a one-house bill and that in the
fullness of time there will be a conference
between the two houses to iron out the problem
to which you referred.
But I think it's very important
that we go on record in full support of this
significant step being taken by the Republican
Party through the Majority's offering of this
bill to indicate that there are difficulties
in the recent past which need to be clearly
remedied, and in this case will be if this
portion of the bill eventually becomes law.
2568
So let it be said that anytime that
a candidate has the backing that Senator
McCain demonstrated, it's entirely appropriate
that a decision to include that candidate on
the basis of his capacity to qualify for
matching funds is very desirable. And also in
the event that that alone does not do it, a
decision by a majority of the commissioners of
election would also serve this purpose. So
that I think we do eliminate some of the more
noxious aspects of the situation which we
recently experienced.
THE PRESIDENT: Senator Maltese.
SENATOR MALTESE: Just on the
bill, Madam President.
This is an issue that attained
nationwide attention. This is an issue that
the Governor took note of, and this is a
Governor's program bill. This is an issue
that has been a source of discussion since
four years ago, where changes were made to the
petitions and changes were made that were, I
think, salutary changes.
As a matter of historical record,
echoing my good colleague Senator Goodman, I
2569
have been involved in petitions and election
law since 1962, with the formation of the
Conservative Party. And in those 38 years, I
never first challenged another candidate's
petitions. So I think as far as ballot access
and as far as fairness, I can say that I will
not yield to any person.
This bill is in answer to a great
deal of comment, a great deal of criticism, a
great deal of concern. The Majority Leader
has indicated his support a hundred percent.
Senator Connor has indicated that
he feels that this would apply equally to the
Democratic Party and the Republican Party, and
he speaks with many, many years of election
law and senatorial experience.
At the same time, relying on that
experience, he well knows that the eventual
finished version of this bill, this good
government bill, this warm and fuzzy bill,
will achieve the purposes of both the
Democratic Party and the Republican Party.
We in the Republican Party are not
presuming to dictate to the Democratic Party.
We're following decades of precedent and
2570
submitting a bill that (A) binds the
Republican Party and then, because this is a
multiparty state, enables other parties to opt
in if they wish. So the Democratic Party, if
it so chooses, could opt in.
We all know as a matter of
practical experience that this is not going to
happen. At this time and in this place,
Senator Connor indicates and I fully take his
representation that he has consulted with
Speaker Silver and that he has consulted with
the state chairperson of the Democratic Party.
At the same time, sometimes there's many a
slip 'twixt the cup and the lip. We've all
heard of the negotiations and consultations
between the Majority Leader and the Speaker
and the Governor and the Speaker where the
final result is somewhat different as
represented from the parties during the course
of the negotiations.
At this time we have a bill before
this house. It's a great bill. It's a bill
that has ballot access, it's a bill that is
fair, it's a bill that has taken into
consideration, as I say, not only criticisms
2571
but concerns of all parties, including the New
York Times and other newspapers all across the
state.
Madam President, I urge all in this
house not to defer judgment, not to hide
behind a position that something would have to
be done. We all know that something can be
done in negotiation between the parties and
between the houses, and we all know that this
is a vast improvement on the prior situation.
And we should all vote aye.
THE PRESIDENT: Read the last
section.
SENATOR CONNOR: Madam President.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: To close for the
Minority.
You know, I certainly have no
quarrel with this bill, and it certainly is a
vast improvement. Our position simply is
constrained. I'll be delighted to vote for
these provisions when they come back with an
alternative that's conforming to the
Democratic national rules. But until that
time, since it does -- while Senator Maltese
2572
points out the Democrats could opt in, if this
bill became law the way it is, either the
Democrats could opt in or have no national
convention process whatsoever. See?
So to pass this as a permanent law
and say it's for the Republicans but any party
can opt in, well, we need another option. We
need our option that conforms to our rules.
That said, we must as a party vote
against this. As I say, we'll all be
delighted to vote for it when it comes back
and the second half of it is the Democratic
Party's option.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
SENATOR CONNOR: Party vote in
the negative.
SENATOR FUSCHILLO: Party vote in
the affirmative.
THE PRESIDENT: The Secretary
will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 36. Nays,
2573
23. Party vote.
THE PRESIDENT: The bill is
passed.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, is there any housekeeping at the
desk?
THE PRESIDENT: Senator, that
completes the reading of the controversial
calendar.
And yes, we have substitutions at
the desk.
SENATOR FUSCHILLO: Please read
the substitutions.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: On page 13,
Senator Padavan moves to discharge, from the
Committee on Cities, Assembly Bill Number 9489
and substitute it for the identical Senate
Bill Number 6479, Third Reading Calendar 312.
THE PRESIDENT: The substitution
is ordered.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
2574
President, there will be an immediate meeting
of the Majority in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Majority in the
Majority Conference Room.
Senator Fuschillo.
SENATOR FUSCHILLO: Will you
please recognize Senator Paterson, please.
THE PRESIDENT: I will be happy
to.
Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
There will be an immediate meeting
of the Minority in the Ada L. Smith Room, also
known as the Minority Conference Room, Room
314, 314. Or 31415925, which we've renamed
our room in honor of pi.
THE PRESIDENT: There will be an
immediate meeting of the Minority in the room,
the Minority Conference Room.
Senator Fuschillo.
SENATOR FUSCHILLO: Madam
President, there being no further business to
2575
come before the Senate, I move we adjourn
subject to the call of the Majority Leader,
with intervening days being legislative days.
THE PRESIDENT: On motion, the
Senate stands adjourned until the call of the
Majority Leader, intervening days being
legislative days.
(Whereupon, at 5:05 p.m., the
Senate adjourned.)