Regular Session - May 24, 2000
3776
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
May 24, 2000
11:08 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
3777
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 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,
Tuesday, May 23rd, the Senate met pursuant to
adjournment. The Journal of Monday, May 22nd,
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.
3778
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
On behalf of Senator Kuhl, on page
number 15 I offer the following amendments to
Calendar Number 481, Senate Print Number 7002,
and ask that said bill retain its place on the
Third Reading Calendar.
THE PRESIDENT: The amendments
are received, and the bill will retain its
place on the Third Reading Calendar.
SENATOR MEIER: Thank you, Madam
President.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
I believe there's a privileged resolution at
the desk by Senator Dollinger. I ask that the
title be read and move for its immediate
3779
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Dollinger, Legislative Resolution 4368
celebrating the life and accomplishments of
Martha Matilda Harper upon the occasion of an
exhibit sponsored by the Rochester Museum and
Science Center to portray her courageous and
pioneering role in international business.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President. On the resolution.
First, I'd like to thank the Deputy
Majority Leader and the staff for bringing
this resolution forward today. There is an
exhibit in honor of Martha Matilda Harper, who
was the Ray Kroc of her time. This was a
woman who did for hairdressing and women's
fashion what Ray Kroc did for hamburgers,
except she did it about 75 years before he
did.
This is a pioneer of
entrepreneurial spirit who started in
3780
Rochester, New York. Her life, too often
ignored, is now being celebrated in a book
that's being published that's being signed off
on this week. This is really a remarkable
woman who long before her time brought the
concept of franchising to modern women's
style -- hairstyling and cosmetics. It was
really well before its time. It's a
fascinating story.
This resolution celebrates her life
and celebrates the opening of an exhibit
acknowledging her contribution to American
ingenuity and entrepreneurship long before its
time. It's a wonderful celebration of
Rochester, New York.
I would open the resolution to
anyone in the chamber who would like to be on
it. It comes relatively late in the process,
and therefore I'm going to make a special
offer to my colleagues from Monroe County to
join with me on the resolution as well.
Thank you, Madam President.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
3781
(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.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
233, by the Senate Committee on Rules, Senate
Print Number 5752A, an act to amend the
Insurance Law, in relation to salaries paid.
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, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
3782
467, by Senator Bonacic, Senate Print 4499A,
an act to amend the General Business Law, in
relation to advertising.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect 180 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 37.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
527, by Member of the Assembly Weisenberg,
Assembly Print Number 10112, an act to amend
Chapter 640 of the Laws of 1990 amending the
Public Health Law.
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, 37.
THE PRESIDENT: The bill is
3783
passed.
THE SECRETARY: Calendar Number
687, by Senator Leibell, Senate Print 6543, an
act to amend the Retirement and Social
Security Law, in relation to benefit
calculations.
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, 38.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
688, by Senator Leibell, Senate Print 7067, an
act to amend the Retirement and Social
Security Law, in relation to granting members.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 38.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: No.
THE PRESIDENT: All right. The
Secretary will continue to read.
THE SECRETARY: Calendar Number
768, by Senator Leibell, Senate Print 7546, an
act to amend the Administrative Code of the
City of New York, in relation to the
investment power.
SENATOR DOLLINGER: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1001, by Senator Stachowski, Senate Print
4173, an act to amend the Penal Law, in
relation to the definition of assault in the
second degree.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
3785
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, thank you,
Madam President.
I'd just like to point out that
there are those who believe, or at least they
say they believe, that an assault is just an
assault and a crime is just a crime. But here
we have a bill which increases penalties for
assaulting public health inspectors and
building inspection officials.
And I'm going to vote for this
bill. I think it's a terrific bill. But I do
want to point out that we still haven't passed
hate crimes legislation in this body, which
would increase penalties for crimes committed
against people because of who they are.
So I'll be voting yes on this, with
the hope that we'll be voting on hate crimes
before this legislative session is over.
Thank you, Madam President.
3786
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Ayes, 40.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1016, by Senator Lack, Senate Print 7652, an
act to amend the Criminal Procedure Law, in
relation to authorizing electronic court
appearances in the state.
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 PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: Thank you very
much, Madam President.
I'm going to vote against this
piece of legislation. I think it's
interesting that we have before us an
extension of a pilot program, but the pilot
program, as most of the pilot programs we see
3787
when we pass legislation in this body, has no
results.
So in the absence of having any
results of what the original pilot program
showed us, I'm going to vote no on this and
hope that someday we'll actually get the
results of a pilot program here.
THE PRESIDENT: You will be so
recorded as voting in the negative on this
bill.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 39. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1049, by Senator Seward, Senate Print 7381, an
act to amend the Parks, Recreation and
Historic Preservation Law, in relation to
requirements.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
3788
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1054, by Senator Stafford, Senate Print 1932A,
an act to amend the Alcoholic Beverage Control
Law, in relation to consumer tastings.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect 90 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 39. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1056, by Senator Goodman, Senate Print 4037,
an act to amend the Alcoholic Beverage Control
Law, in relation to giving the Division of
Alcoholic Beverage Control the power to seize.
THE PRESIDENT: Read the last
3789
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 40.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1057, by Senator Goodman, Senate Print 4038,
an act to amend the Alcoholic Beverage Control
Law, in relation to the issuance of temporary
permits.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: I'm going to vote
against this legislation.
And I do want to point out that I
have legislation pending which would eliminate
3790
the ability to serve liquor while a license is
being transferred pending approval of a new
licensee. This has become an enormous problem
in the district I represent, where a lot of
renegade activity goes on during these
in-between times.
So I think we should be going in
the other direction and absolutely not allow
these liquor licenses to be used during these
transfers. I'll be voting no.
Thank you, Madam President.
THE PRESIDENT: Senator Duane,
you will so recorded as voting in the negative
on this bill.
The Secretary will announce the
results.
THE SECRETARY: Ayes, 41. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1069, by Senator Goodman, Senate Print 7115,
an act to amend the Public Officers Law and
the General Construction Law, in relation to
the use of videoconferencing.
3791
SENATOR STACHOWSKI: Lay it
aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1097, by Senator DeFrancisco, Senate Print
7404, an act to amend the Executive Law and
the Parks, Recreation and Historic
Preservation Law, in relation to historic
maritime communities.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 8. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1150, by Senator Farley, Senate Print 4541, an
act to amend the Banking Law, in relation to
the regulation of agents and subagents.
THE PRESIDENT: Read the last
section.
3792
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1154, by Senator Farley, Senate Print 7692, an
act to amend the Banking Law, in relation to
the definition of traveler's checks.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect in 90 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1157, by Senator Maziarz, Senate Print 5372B,
an act to reopen the special retirement plan
available to certain police officers employed
by the Town of Gates.
3793
THE PRESIDENT: There is a home
rule message at the desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 44.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1160, by Senator Larkin, Senate Print 175, an
act to amend the Education Law, in relation to
expanding student aid programs for Vietnam and
Persian Gulf veterans.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the 120th day.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
3794
1170, by Member of the Assembly Eve, Assembly
Print Number 9951, an act to amend Chapter 31
of the Laws of 1985 amending the Education
Law.
SENATOR DOLLINGER: Lay that bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1171, by Senator Stafford, Senate Print 7074A,
an act to amend the Education Law, in relation
to the abolition of citizenship requirements.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1175, by Senator LaValle, Senate Print 7509,
an act to amend the Education Law, in relation
to the requirements of certification.
3795
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect 180 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 47.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1178, by Senator Rath, Senate Print 1290,
concurrent resolution of the Senate and
Assembly proposing amendments to Article 9 of
the Constitution.
SENATOR DOLLINGER: Lay it aside,
Madam President.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
1179, by Senator Volker, Senate Print 1912A,
an act to enact the Criminal Procedure Law
Reform Act of 2000.
SENATOR DOLLINGER: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
3796
THE SECRETARY: Calendar Number
1180, by Senator Libous, Senate Print 2094B,
an act to amend the Vehicle and Traffic Law,
in relation to authorizing the maximum speed
limit.
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, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1182, by Senator Wright, Senate Print 3652B,
an act to amend the Vehicle and Traffic Law,
in relation to the maximum speed limit for
certain portions of highway.
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.)
3797
THE SECRETARY: Ayes, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1184, by Senator Volker, Senate Print 5877A,
an act to amend the Banking Law, the Civil
Practice Law and Rules, and the Criminal
Procedure Law, in relation to civil
forfeiture.
THE PRESIDENT: Read the last
section.
SENATOR DOLLINGER: Lay the bill
aside, Madam President.
THE PRESIDENT: The bill is laid
aside.
Senator McGee, that completes the
noncontroversial reading of the calendar.
SENATOR McGEE: Thank you, Madam
President. Is there any housekeeping at the
desk?
THE PRESIDENT: Senator
DeFrancisco first.
SENATOR McGEE: Would you
recognize Senator DeFrancisco, please.
THE PRESIDENT: Thank you,
3798
Senator McGee.
Senator DeFrancisco.
SENATOR DeFRANCISCO: Yes. Madam
President, I would request, with unanimous
consent, to be recorded in the negative on
Calendar Number 1001, Senate Print 4173.
THE PRESIDENT: Without
objection, you will be so recorded as voting
in the negative.
Senator McGee.
SENATOR McGEE: Madam President,
thank you. May we now have the controversial
reading of the calendar.
THE PRESIDENT: Thank you,
Senator.
The Secretary will read.
THE SECRETARY: Calendar Number
768, by Senator Leibell, Senate Print 7546, an
act to amend the Administrative Code of the
City of New York, in relation to investment
power of the Board of Trustees.
SENATOR DOLLINGER: Read the last
section.
THE PRESIDENT: Read the last
section.
3799
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 49.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
1069, by Senator Goodman, Senate Print 7115,
an act to amend the Public Officers Law and
the General Construction Law, in relation to
the use of videoconferencing.
THE PRESIDENT: Read the last
section.
SENATOR DOLLINGER: Explanation,
Madam President.
THE PRESIDENT: Senator Goodman,
an explanation has been requested.
SENATOR GOODMAN: Madam
President, would the bill number be read
again, please? I'm sorry.
THE PRESIDENT: The bill is 7115,
Calendar Number 1069, Senator Goodman.
SENATOR GOODMAN: Madam
President, this bill permits an agency to use
3800
videoconferencing for attendance and
participation by members of a public body as
well as authorizing teleconferencing for open
meetings of state agencies.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield just to a couple of quick
questions, Madam President?
SENATOR GOODMAN: Certainly,
Madam President.
THE PRESIDENT: The sponsor
yields. You may proceed, Senator Dollinger.
SENATOR DOLLINGER: What is the
intended scope of this bill as applies to
agencies? Would this include all agencies
that function in New York State?
SENATOR GOODMAN: Yes, it would.
This basically is a bill that recognizes the
advance of technology and the feasibility of
having people have distance meetings so that
it is the equivalent, really, of being present
if you have an opportunity to see them through
a television screen with a clear image and an
adequate sound system. It's permissive,
3801
therefore, to get business done even though an
individual may not be present in the room
where the meeting would otherwise transpire.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Goodman will
continue to yield.
SENATOR GOODMAN: Yes, of course.
THE PRESIDENT: You have the
floor, Senator Dollinger.
SENATOR DOLLINGER: Would this
apply to meetings of the Public Authorities
Control Board? Which is, as you know, a
somewhat unique public agency in that it is
comprised of elected officials who would
participate in this meeting.
SENATOR GOODMAN: Senator, as far
as I'm concerned, it should be universally
applicable. I think that's the desire and
certainly the necessity.
It would be extremely useful, it
seems to me, to permit this type of
conferencing. It in no way diminishes the
responsibility of public servants to their
constituencies in any way by having a
televised presence rather than an actual
3802
physical presence.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Goodman would just
continue to yield for one final question.
THE PRESIDENT: Does the Senator
yield for a final question?
SENATOR GOODMAN: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: The Open
Meetings Law which requires that these
agencies meet in public, to what extent will
this bill, videoconferencing, change that
rule, in that a member will not -- several
members may choose not to attend and it may be
difficult for the public who attend the
meeting to figure out what the person who's at
the videoconferencing center is doing?
For example, he or she could be
sitting in the same room with lobbyists or
constituents that could influence the process,
and the public present at the meeting place
wouldn't know what those influences are
because they couldn't see them or observe
3803
them.
Senator Goodman, do you think -- is
that a problem? And if so, how does this bill
address that?
SENATOR GOODMAN: I find your
hypothetical suggestion rather too
conspiratorial to be realistic.
Essentially what this does is to
create a situation in which you have a meeting
of several people in different locations.
But, what, you're saying that a
lobbyist could be seated next to the
individual and perhaps doing some physical
arm-twisting?
SENATOR DOLLINGER: No. Well,
maybe not physical arm-twisting, Senator
Goodman.
But one of the advantages of the
Public Meetings Law and the Open Meetings Law
is that all these agencies have to meet in
public. And a constituent, one of mine or one
of yours, can walk in the room and see who's
in the room at the same time, who's sitting at
the sidelines, who's whispering, who's
talking, all those things that happen in the
3804
public dynamics of a meeting.
Much like here. Someone could sit
in this chamber and see those who are
filtering in and out, those who are sitting in
the audience.
Do we lose some of that public
involvement through videoconferencing?
SENATOR GOODMAN: Senator, it
seems to me if you put on one pan of the scale
your rather bizarre and exotic concern and on
the other pan the realities of the efficiency
which this produces in a technological age
where you really do have almost total visual
awareness of what's going on, that the pan of
the scale I suggest is the one that will weigh
down the heaviest is the latter, not the
former.
SENATOR DOLLINGER: Through you,
Madam President, just briefly on the bill.
I appreciate Senator Goodman's
explanation. I think I voted for this bill in
the past. I generally believe that this is
well-intentioned and will produce a public
benefit.
However, I would just caution
3805
everyone that whenever we have public meetings
and we allow videoconferencing, there's going
to be something missed by the camera's eye
that could be seen by an eye of a person in
the room.
And if we really believe that
public participation means you not only get to
see someone's face, listen to their words, but
you get to see them in the milieu in which
they're making their decisions, this bill
may -- as well-intentioned as it is, this bill
may detract from that public understanding.
And I hope, Senator Goodman, if my
bizarre and exotic, as you describe it,
hypothetical never comes to pass, this is a
great idea. If it does, we've got more work
to do.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. Will the sponsor yield?
THE PRESIDENT: Does the sponsor
yield?
SENATOR GOODMAN: Yes, Senator.
THE PRESIDENT: You may proceed,
Senator Duane.
3806
SENATOR DUANE: Thank you, Madam
President.
I'm wondering if the sponsor has
experienced videoconferencing.
SENATOR GOODMAN: Yes, I have
experienced it in a rather personal way.
We've created a videoconferencing room at
Teachers College at Columbia University which
permits the conferencing to occur on
educational matters with various institutions
all around the world.
I very deeply believe that
technology now is something which permits this
type of action to occur, and it's exceedingly
beneficial in many ways.
I think you'll find, for example -
if I may just go on for a moment more and
answer your question -- that in an age of
exceedingly high tuitions and in fact
unaffordable tuitions, that distance learning
will now become a very significant factor in
the whole American educational system.
Since what we're dealing with here
is essentially an exchange of information, the
effectiveness of that exchange will in no way
3807
be diminished by the fact that we're using
modern video technology to enable people to
communicate, and we'll have sufficient
opportunity to see them in action and to
respond in a two-way sense. Both their
statements as well as potential questions from
the floor will be permissible.
And this is exceedingly efficient
and much to be encouraged, in my judgment,
Senator.
SENATOR DUANE: Through you,
Madam President, if the sponsor will continue
to yield.
THE PRESIDENT: Does the sponsor
yield?
SENATOR GOODMAN: Yes, I will.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DUANE: Is the sponsor
suggesting that the technology he speaks of
that's being used at Columbia University is
the exact same technology that's being used by
state agencies?
SENATOR GOODMAN: I would say to
you that it's probably not, because state
3808
agencies would not require satellite
transmission. Whereas the thing I've
described to you is even more exciting, since
it permits intercontinental exchanges of ideas
in a very lively and direct fashion.
I merely mention that to show you
the extent to which this kind of technology
has advanced.
And for us to hold back on this I
think would be a great mistake. Because
what's at stake here is a chance for
government to function far more efficiently
and effectively, to achieve quorums with
people in different locations attending to
various significant pieces of state business
without actually having to disrupt their
schedules to go to a given place at a given
time when it may interfere with more important
duties.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
SENATOR GOODMAN: I will.
THE PRESIDENT: You may proceed,
Senator Duane.
3809
SENATOR DUANE: I'm wondering,
though, then if the sponsor has experienced
meeting use with a state agency in an official
capacity using -
SENATOR GOODMAN: I could not
have done that, because at the moment -
SENATOR DUANE: I'm sorry, I
didn't -- can I finish my question?
SENATOR GOODMAN: Oh, I'm sorry.
Please go ahead, Senator. I thought you were
finished.
SENATOR DUANE: -- that using the
state agency's videoconferencing technology?
SENATOR GOODMAN: I'm sorry, but
you were inaudible, Senator. Would you repeat
the question, please?
THE PRESIDENT: Senator, could
you repeat your question, please?
SENATOR DUANE: Yes, Madam
President. I'm wondering if the sponsor has
experienced, in an official capacity, using
videoconferencing using the state's
videoconferencing technology which is used by
a specific state agency.
SENATOR GOODMAN: That would not
3810
have been feasible, because at the moment such
a conference would be illegal, Senator. The
purpose of this bill is to make this procedure
legal and permissible.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Does the sponsor
yield?
SENATOR GOODMAN: Yes, I do.
THE PRESIDENT: Senator Duane,
you may proceed.
SENATOR DUANE: Is it the
sponsor's contention that the
videoconferencing that would be used by state
agencies is the same -- I can't hear. I can't
hear myself.
SENATOR GOODMAN: Senator Duane,
you may proceed with your question.
SENATOR DUANE: I'm having
trouble hearing myself, Madam President.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you, Madam
President.
3811
I'm wondering if the sponsor would
say that the videoconferencing that would be
used by various state agencies is the same
videoconferencing or same type of
videoconferencing equipment that's used by the
Department of Health for, for instance, the
AIDS Advisory Committee.
SENATOR GOODMAN: I'm not
familiar with that procedure. I'm sorry, I
can't respond, Senator.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would continue to
yield.
THE PRESIDENT: Does the sponsor
continue to yield?
SENATOR GOODMAN: Yes, I will.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DUANE: Does the sponsor
believe that part of the responsibility of
someone who's been appointed to a state
commission, whether it's with pay or without
compensation, should have as part of their
duties traveling to different parts of the
state?
3812
SENATOR GOODMAN: Let's take the
AIDS Advisory Council to which you just
referred. I happen to be familiar with the
agency generically, since I created it through
legislation that I sponsored.
If there is a doctor who is
involved in extensive treatment regimens with
respect to AIDS patients in a given city -
let us say a consultant who's called to Omaha
for the purpose of consulting on some
technique for assisting an AIDS patient, and
there is a meeting that requires his presence
in New York -- it would be a meeting that
might be of one hour's duration, and his
presence is required for a quorum -- the
teleconferencing proposal that I've suggested
we pass today is one which would permit him to
consider being available for the quorum as
well as performing this vital life-saving
function.
That's just one example in an area
which I know is of mutual concern to both of
us.
SENATOR DUANE: Through you,
Madam President, if the sponsor would yield.
3813
THE PRESIDENT: Does the sponsor
yield?
SENATOR GOODMAN: I'll continue
to yield on an open-ended basis until the
inexhaustible fountain of questions finds its
source dried up.
(Laughter.)
THE PRESIDENT: You may proceed
with your questions, Senator Duane.
SENATOR DUANE: Madam President,
I hope the sponsor is not tempting me.
(Laughter.)
SENATOR DUANE: Just to repeat my
question, I'm wondering if the sponsor
believes that part of the responsibility of a
person that's been appointed to a state
commission, whether it's compensated or not
compensated, is in part to travel to different
parts of the state for meetings and as a way
to get better knowledge of different parts of
the state.
SENATOR GOODMAN: Senator, I
think I just answered that. And I'll try to
answer it again to see if I can make my answer
a little clearer and more penetrating to your
3814
awareness.
Specifically, I said to you that in
my judgment, it's extremely beneficial and in
the public interest. If an individual may
have an obligation that involves, in the
example I gave you, the treatment of a sick
patient in another area which prevents his
being present if he were a physician and a
member of, say, the AIDS Advisory Council -
he could not physically be present at the
meeting of the council, but his presence was
desirable in terms of either creating a quorum
or having the benefit of his input -- to
enable him to continue his performing his
treatment skills at the same time as he could
take a few moments out to participate in this
meeting I think is eminently beneficial.
In short, this type of an
arrangement would permit a busy public
official to be in two places at once, if you
will, or virtually at once. Thus, the public
would benefit significantly.
SENATOR DUANE: Through you,
Madam President, I apologize for reasking the
question. I misunderstood when Omaha was
3815
raised, as that's not part of New York State.
But my final question is whether or
not the sponsor believes that Parole Board
hearings are well served by using
videoconferencing.
SENATOR GOODMAN: My response
remains the same. I think virtually any type
of hearing that I could imagine in the State
of New York's government would be amply served
by this type of teleconferencing. Parole
Board hearings would be included in my
response.
And you say this is your final
question. That's my final answer. And I'm
going to go for it. I don't think I'll use
any of my tools. I will not call any
relatives, and I will not ask for an audience
vote.
(Laughter.)
SENATOR DUANE: Thank you.
Madam President, on the bill.
Though I feel like I'm not dressed
appropriately for the final answer. Although
some days, I am dressed appropriately for it.
I do want to, though -- despite
3816
several requests, I have not been able to
experience Parole Board -- the technology
which the Parole Board uses for
videoconferencing.
I have experienced the AIDS
Advisory Commission's videoconferencing, which
is really incredibly inadequate. And I say
that having experienced it for the times that
it works, although it doesn't always work.
And you often can't see the person on the
other end, and I know that they can't see
what's happening around the conference table.
I believe that if people are
appointed to serve on government commissions
and bodies which have a statewide focus, which
most of them do, and particularly if they're
being compensated for being on these
commissions, that they have a responsibility
to travel to different parts of the state so
that they can experience that part of the
state.
I don't believe that
videoconferencing is in any way equal to the
actual human contact. If videoconferencing is
so wonderful, then I don't know why it is that
3817
we don't just phone it in here in this body.
Why do we even bother to come to Albany?
Except for, I suppose, Senator Breslin would
be able to be here. But we could all just sit
in front of our TVs and meet that way.
But, you see, I think that there's
a tremendous difference made in the actual
personal contact which people have with each
other. It's not just about our faces and what
our mouths are saying, it's also what happens
in the actual physical interaction that we
have with each other that makes a big
difference.
The last person which we appointed
to the Parole Board is someone who is a
certified social worker and family therapist
who worked in the field of addiction. And I
asked her the question, when she's working
with a client, whether she thought that having
a videoconferenced session with that client
was as good as having an actual one-on-one,
in-person session with a client. And she
said, "Of course, the one-on-one session is
much preferable."
I believe the same is true for the
3818
way that commissions should operate. And I
also believe that there's an enormous
advantage to be had by people actually
appearing in public in different parts of the
state, so that people who are interested in
the topic that's being discussed can actually
go and be in the presence of people who will
be voting or making decisions which might have
an enormous impact on them.
I'll tell you honestly, there are
several Senators on the other side of the
aisle, that from their television presence, I
have a completely different view of them than
what it's been like to actually be in person
with them and to interact with them in person.
And I actually think that's what
makes government work better, I believe that's
what makes commissions work better, is the
actual interaction which people have with each
other -- which is not only about business but
sometimes about banter and social things that
come up.
So I disagree with the philosophy
of using videoconferencing. I think there is
no substitute for the real thing. And I would
3819
encourage my colleagues to vote against this,
because otherwise we'll all just be sitting
around in our district offices chatting to
television screens instead of actually being
here and interacting with each other and
having an impact on each others' points of
view.
I'll be voting no on this, Madam
President.
THE PRESIDENT: You will be so
recorded as voting in the negative, Senator.
Senator Stavisky.
SENATOR STAVISKY: Yes. Will the
sponsor yield? Through you, Madam President.
THE PRESIDENT: Does the sponsor
yield?
SENATOR GOODMAN: Yes.
SENATOR STAVISKY: One very
simple question, which Senator Duane alluded
to. Madam President, in committee I raised
this issue. And that is, will this apply to
the State Legislature?
SENATOR GOODMAN: What, please?
SENATOR STAVISKY: Will the
legislation apply to the State Legislature?
3820
SENATOR GOODMAN: No, it does
not. It does not.
SENATOR STAVISKY: In other
words, can I stay home in Flushing and not
have to come to Albany?
SENATOR GOODMAN: I think that
would be an admirable result. If you wish to
stay home in Flushing and participate
remotely, I have no objection to that.
SENATOR STAVISKY: So it would
apply?
SENATOR GOODMAN: No, it would
not apply.
SENATOR STAVISKY: It would or
would not?
SENATOR GOODMAN: It would not.
Unless the State Legislature sought to have it
apply, in which case we're at liberty to pass
a law that would permit that to occur. Which
I don't imagine is in prospect, although it
might not be a bad idea.
In fact, let me take it one step
further and say to you I've long been an
advocate of televising these proceedings so
that the public can sense the full depth and
3821
perceptiveness of the members who are
presently involved in debates such as this.
You get a real feeling for how things work if
you can televise these proceedings.
In short, new technology offers
great new opportunities, and I think this is
just one area of such opportunity.
SENATOR STAVISKY: Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55. Nays,
1. Senator Duane recorded in the negative.
THE PRESIDENT: The bill is
passed -- the Secretary will announce the
results.
THE SECRETARY: In relation to
Calendar Number 1069, those recorded in the
negative are Senators Duane, Meier, and
Saland. Ayes, 53. Nays, 3.
THE PRESIDENT: The bill is
passed.
3822
THE SECRETARY: Calendar Number
1170, by Member of the Assembly Eve, Assembly
Print Number 9951, an act to amend Chapter 31
of the Laws of 1985 amending the Education
Law.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. I think there's an amendment at
the desk.
THE PRESIDENT: Yes, there is,
Senator.
SENATOR DUANE: And I would waive
its reading and ask to be heard on the bill.
On the amendment, rather.
ACTING PRESIDENT MORAHAN:
Senator Duane, on the amendment.
SENATOR DUANE: Thank you.
My amendment is actually my bill,
S7370, which establishes a criminal justice
loan assistance program. This fund would be
derived from a portion of the attorney's
biannual registration fee, and the fund would
go toward public defenders' and legal aid
attorneys' law school loans.
An attorney would have to devote at
3823
least 12 or more months in the field of
criminal defense before being considered for
the fund.
I think it's laudable that we do
loan forgiveness for medical doctors who are
willing to work in areas which sorely need
this sort of healthcare assistance. And I
also believe that we should provide an
incentive for people who are willing to defend
those who can't afford a lawyer in a criminal
defense proceeding.
Just as an aside, I also believe
that we should cover DAs in this. I just
don't have a piece of legislation -- another
member does -- on that.
But I think that this is a trend,
providing loan forgiveness, which we should
build upon. And I would therefore request
favorable consideration of adding loan
forgiveness for people who go into criminal
defense of the indigent.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: On the
amendment, all in favor say aye.
(Response of "Aye.")
3824
ACTING PRESIDENT MORAHAN:
Opposed, nay.
(Response of "Nay.")
ACTING PRESIDENT MORAHAN: The
amendment is defeated.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
1178, by Senator Rath, Senate Print 1290,
concurrent resolution of the Senate and
Assembly proposing amendments to Article 9 of
the Constitution.
SENATOR DOLLINGER: Explanation,
Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Rath, an explanation has been asked
for.
SENATOR RATH: Thank you, Mr.
3825
President.
This bill would put in place an
opportunity for an amendment to the
Constitution of the State of New York in
relation to unfunded mandates. The bill would
help determine what an unfunded mandate was
and make it possible to be voluntary for local
governments, school districts, special
districts, et cetera.
We, I think, all have agreed that
unfunded mandates in the State of New York
onto the local governments are something we
want to avoid. And this would put this into
law and make it possible for a council -- that
is also one of the provisions of the bill -
to determine what an unfunded mandate was.
ACTING PRESIDENT MORAHAN:
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, will the sponsor yield just for a
couple of quick questions?
ACTING PRESIDENT MORAHAN:
Senator Rath, do you yield?
SENATOR RATH: Surely.
SENATOR DOLLINGER: Senator Rath,
3826
is this the same mandate-relief constitutional
amendment that we've debated in the past on
the floor?
SENATOR RATH: Right here. Would
you like to read it?
SENATOR DOLLINGER: Same one? I
think I've probably got last year's edition.
SENATOR RATH: I do. We need a
new one. Could it be a little thicker,
please, take up some time?
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
yield.
ACTING PRESIDENT MORAHAN: Do you
continue to yield, Senator Rath?
SENATOR RATH: Surely.
SENATOR DOLLINGER: This bill
would have prevented us from passing the HCRA
bill we passed last December which put an
$800 million cash mandate on the counties; is
that correct?
SENATOR RATH: That's right.
SENATOR DOLLINGER: And I
think -- through you, Mr. President, if the
sponsor will continue to yield -- you and I
3827
both voted in favor of that bill, didn't we?
SENATOR RATH: That's right.
SENATOR DOLLINGER: Okay. Just
on the bill, briefly, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: This is
bumper-sticker legislation, Mr. President.
This is a wonderful idea. This is a fabulous
idea. This is the idea that I think Senator
Rath and I have talked about a number of times
and said wouldn't it be absolutely great if we
could ever come up with a way that we in
essence decided that we would no longer pass
huge cost mandates on other levels of
government.
Where we would actually do things
like when people send us a home rule message
from the City of New York that says they don't
want changes in their pistol permit process,
we would actually abide by that home rule
mandate. We wouldn't tell them what to do.
We would say to them, No, we're not going to
pass it over your objection.
There's a bill that we did in the
3828
Codes Committee yesterday which says that
officers in the hospital system -- the City of
New York says, We don't want them to have
guns. The hospital system says, We don't want
them to have guns. And we're going to give
them guns.
All those things in which we tell
other levels of government that we're going
to -- we know what's right, we're going to
tell them what to do.
Senator Rath, I appreciate your
leadership on this. I know where this is
going to end up. I know it's going to be in
the newsletters of every member of this house.
Lord knows it will end up in my newsletter,
because I want to be against unfunded
mandates.
But as a very practical matter,
we're like those terrible addicts who say, I
know I'm addicted to alcohol, but I can't pass
up one more drink. And every time that drink
comes across our table, whether it's in the
HCRA bill or the gun bills or in all those
little bills -- I look at Senator Marchi,
who's probably voted for more unfunded
3829
mandates than any man in the history of this
Legislature. I don't think he's necessarily
done anything wrong.
But I would also suggest that when
you vote for unfunded mandates, as we go all
the time, and then we stand here and say we're
going to do a constitutional amendment that
will prohibit us from doing something in the
future, what we're really doing is we're
walking through the looking glass and we're in
that space that Lewis Carroll created, we're
in that wonderland where we're all voting for
something that deep in our hearts we really
know doesn't mean what it says.
And frankly, the reason why I've
voted for it in the past, and I encourage all
my colleagues on this side of the aisle to
vote for it, is because it's a wonderful thing
if we someday get to a campaign or if we're
someday asked something in public whether we
believe in unfunded mandates, if we vote for
this bill, you can always say, "I've always
voted for a constitutional amendment to stop
unfunded mandates."
But I would suggest everybody in
3830
this chamber has done it in the past, we're
all going to do it again in the future. I can
see the bills rolling off the presses as we
speak where we are going to oppose unfunded
mandates on other levels of government.
It's wonderful to be in wonderland.
I'm going to cast my vote with that wonderland
spirit. Much like standing in front of the
Red Queen, I'm going to say, "Oh, yes, I vote
aye." But it's really just an illusion.
ACTING PRESIDENT MORAHAN:
Senator Duane, on the resolution.
SENATOR DUANE: Thank you,
Madam -- Mr. President. Sir.
SENATOR RATH: Point of order,
Mr. President. If I might respond to Senator
Dollinger before Senator Duane and I take up
the issue, because I think I have some things
that I know you're doing to ask me about.
But, Senator Dollinger, if you
would join me going through the looking glass,
if you will, into wonderland, you will vote
for this because in your heart you know it's
right.
I believe someone said that once,
3831
only they said, "In your heart, you know he's
right." If you can remember back.
The point I wanted to make to you,
Senator, is that in this year's budget there
is an amount of money earmarked for work on
finding out what the relationship is and will
be not only with the state and its counties,
but between the federal government and the
state. And we're going to try to find out who
pays for what, who says it needs to be done,
and who takes credit for the program.
I think in this wonderful
wonderland that we live in that's a marriage
of the political and the government, the
people that we work for expect us to be able
to explain that marriage to them. And the
marriage that's been a problem for 25 years in
this state was the Medicaid marriage that
started out all that long time ago and has
escalated into a program of huge -- I don't
want to say unmanageable, because it depends
on where you're sitting and who you're talking
to in relation to this.
I don't think you and I have any
argument about what the goal is or how we get
3832
it done -- let me put it this way, what the
goal is. How we get it done, I think you and
I might debate and have some fun with. But I
think it's important that we hold ourselves up
to a higher level. And this is the level that
a constitutional amendment would hold this
issue up to.
Not yeah, it's a press release;
yeah, it's going to show up in our
newsletters. But yes, we're asking the people
of the State of New York to be our partners in
this decision. Because they're the ones who
pay the property tax, and that's the ultimate
bottom line of what happens when we're dealing
with these issues.
Thank you for the courtesy, Senator
Duane.
ACTING PRESIDENT MORAHAN:
Senator Duane, on the resolution.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield,
please.
ACTING PRESIDENT MORAHAN:
Senator Rath, will you yield?
SENATOR RATH: Surely.
3833
SENATOR DUANE: The legislation
which we discussed either yesterday or the day
before which would include persons eligible
for PINS between 16 and 18 years old, would
that -- under this legislation, would that
mean that a county could refuse to provide
that service if the state doesn't provide the
funding?
SENATOR RATH: Senator Duane, I
am not disappointed. I knew you'd have that
question. And it's absolutely right. If I
were sitting in your chair, I'd be asking the
exact same question.
Let me go back to the bill and say
that this is voluntary for local governments.
Now, I come from a local government. And
although we discussed at some length how we're
going to pay for the costs, if there are
indeed additional costs for the program that
would include the 16-year-olds through the
18-year-olds, the question here is -- a couple
of things.
You've got a 25-year history of a
law we're out of step with in New York State.
We've been trying to pass PINS legislation for
3834
25 years. Senator Volker had the best
comment. He said, "This is a law whose time
has come 25 years ago," raising that age.
Second of all, we have no guarantee
that it's going to pass the Assembly, nor that
the Governor is going to pass it. So what
we're talking about is something that may or
may not happen, yes -- and I believe you
couched your comments to me that way. But
we're also saying that there's something here
that's voluntary.
And if a local government decided
to take that issue up and pay for whatever
additional costs there might be, what would
happen then is they would either have to give
up something else or they'd have to raise
their property taxes. You know, it's a
teeter-totter.
ACTING PRESIDENT MORAHAN: Excuse
me, Senator.
Can we have a little order in the
house. Please take your conversations outside
the chamber. Thank you.
Senator Rath.
SENATOR DUANE: Through you, Mr.
3835
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Rath, do you continue to yield?
SENATOR RATH: Surely.
SENATOR DUANE: In the scenario
that the other side passes the same PINS
legislation and the Governor signs it into
law, does that then mean, again, that a
municipality or a county would not have to
provide this service if they so decided?
SENATOR RATH: And, you know,
your point is well-taken, Senator Duane.
As we said the other day, we see
dollars in the budget that will go to the
immediate question of the cost of PINS. The
implementation date, if it all goes through
this year, would be November 1st. So we'd
have two months' experience in this year's
budget.
The study bill that will provide
the demographic information that we're going
to need in order to get an idea of what it may
cost so that in next year's budget we can be
realistic in anticipating what the counties'
3836
needs may be, that's in place. That's going
to go forward. But there is money in the
budget for the PINS bill this year.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Rath, do you continue to yield?
SENATOR RATH: Surely.
SENATOR DUANE: Is that that -
I'm sorry, I don't remember whether it's $36
million or $38 million which the sponsor
mentioned the other day.
SENATOR RATH: I think it was 24.
SENATOR DUANE: Twenty-four.
SENATOR RATH: Twenty-three or
24, Senator.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Rath, do you yield?
SENATOR RATH: Surely.
SENATOR DUANE: So it's the
sponsor's contention that that $24 million
3837
would cover the cost of covering the extension
of the PINS program to 18-year-olds?
SENATOR RATH: I believe,
Senator, that we would consider that that
money could be applied towards it.
But in my experience with counties,
if we don't up-front something, they pay for
it and they tell us how much it costs. And
then if we pass legislation that says we can
cover their costs on that -- this is a
give-and-take thing. There's a free flow back
and forth.
And if we say we want to cover what
their additional costs will be this year, yes,
I wouldn't think that the -- first of all, it
will take them a while to start to implement.
So the costs that might be incurred during
this year's budget I think would be very
small.
SENATOR DUANE: If the sponsor
would continue to yield.
ACTING PRESIDENT MORAHAN:
Senator Rath, do you continue to yield?
SENATOR RATH: Surely.
SENATOR DUANE: Has any other
3838
program spoken for the $24 million or a part
of the $24 million?
SENATOR RATH: No.
SENATOR DUANE: Through you, Mr.
President. Then that money is only earmarked
for the -
SENATOR RATH: No, it's not
earmarked, it's in a broad general category.
SENATOR DUANE: Through you, Mr.
President. What is that general category
called?
SENATOR RATH: Let me check with
counsel. I had those papers on my desk the
other day.
That is in the family assistance
portion of the budget. We can give you page
and line if you want, if you check my office.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Rath, do you -
SENATOR RATH: Surely.
SENATOR DUANE: Would that cover
probation and home schooling, home education?
3839
SENATOR RATH: I am not exactly
sure. As I said to you the other day, we were
investigating this because it had just come to
our attention when it looked to us like the
Assembly was going to be willing to move this
budget out without a lot of up-front costs.
And I think the first time you and
I debated this -- maybe, oh, a month and a
half ago -- the question was the additional,
the large dollars up front that the Assembly
had assumed would be necessary for programs.
And again, I don't think you and I
disagree on what we're trying to have happen
here. I think the way to get to the solution
is what we're talking about.
SENATOR DUANE: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT MORAHAN:
Senator Duane, on the resolution.
SENATOR DUANE: I'm going to vote
in opposition to this, not because I support
the imposition of unfunded mandates but
because I believe that we should fund mandates
that we put forward.
So I believe that we have a
3840
responsibility both to all the people of the
State of New York and to be able to provide
the resources for the counties and
municipalities to provide those services, that
we should put our money where our mouth and
our policies are and fund mandates which we
are handing down to local governments.
I think we're looking at this issue
in the wrong way. I certainly understand why
it's wrong to dump unfunded mandates onto
municipalities. But I think we would be
within our rights to provide for mandates,
provided that we also back it up with
resources to fulfill those mandates.
So I'll be voting no on it, Mr.
President.
ACTING PRESIDENT MORAHAN:
Senator Meier.
SENATOR MEIER: Thank you, Mr.
President.
I spent six years as a county
executive, some during the present
administration in this town and some during
the previous one. I speak, therefore, with
some authority. I know from mandates. And I
3841
certainly know from unfunded mandates.
And I'm going to vote for this
resolution, because I think what Senator Rath
has very perceptively done here is to go to
the fundamental question about what mandates
are unfunded mandates and how they arise.
Mark Twain once said that a
politician's dream is to be able to extract
money from the taxpayers without disturbing
the voters. And that's exactly what unfunded
mandates do. When you can pass a program or a
requirement in Washington or in Albany and
compel them to tax to fund it in New York
City, in Utica, in Watertown, in Batavia, you
have realized Mark Twain's dream.
And the other thing that you have
done -- and this is why Senator Rath again has
very perceptively attacked this through a
constitutional amendment to put a framework
around this issue. The other thing you have
done with unfunded mandates is committed a
direct assault against the underlying,
fundamental bedrock of representative
government, and that's accountability.
The voters ought to know every time
3842
we pass a bill or a program here who to be
angry at or grateful to, depending upon what
their point of view is. We take apart that
fundamental of accountability when we separate
the ability to confer benefits from the
responsibility to tax people to pay for it.
Now, what Senator Rath is doing
does not deny that this body does on
occasion -- and has, as we've sat here -- pass
unfunded mandates. But what she is trying to
do is to institutionally and constitutionally
put a framework and some discipline on that
process.
And the other thing that I would
suggest to you here is this. One of the
things that this body does from time to
time -- it has done on this side of the aisle,
it has most capably done on the other side of
the aisle -- is sometimes I think it is useful
for us to discuss the fundamentals of our form
of government, to discuss some of the
principles that go into it.
It is not a trip through the
looking glass, my good friend and colleague
Senator Dollinger. It is a discussion about
3843
what makes our form of representative
government work.
And I think Senator Rath is to be
commended for this measure. Thank you, my
colleagues. And thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. Through you, if the sponsor
would yield to a couple of questions.
ACTING PRESIDENT MORAHAN:
Senator Rath, would you yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MORAHAN: She
yields.
SENATOR SCHNEIDERMAN: Through
you, Mr. President.
If we passed a civil rights bill
that provided that local governments,
governments, private entities could no longer
discriminate against people based on sexual
orientation, and then local governments,
through their Divisions of Human Rights and
other agencies, were required to spend money
3844
to enforce that bill, would your resolution
allow them to opt out of that civil rights
law?
SENATOR RATH: It would go to the
council for a determination. And no, it would
not allow it to opt out. If there was a
dispute as to whether they could or could not,
it would go to the council. And it would be
subject to judicial review.
SENATOR SCHNEIDERMAN: Through
you, Mr. President.
But if this required -- I've read
the legislation, and I assume that the council
has to be guided by what's in it. This would
require a local government to spend money. I
don't understand why they couldn't opt out of
that any more than any other legislation
passed by this body.
If there's some distinction, I'd
like to understand it, because I don't really.
SENATOR RATH: I think we're
talking about apples and oranges here,
Senator. If we're talking about federal law,
we're talking about something they would have
to abide by because it was federal law, not
3845
state law.
SENATOR SCHNEIDERMAN: Well, no,
I'm -- through you, Mr. President, I'm
referring to a state law. If we passed a
nondiscrimination law -- say, for example, we
passed a law imposing severer penalties and
creating new crimes for domestic violence.
And that would require local governments to
expend money and resources; their police
officers would have to work more. Why is that
exempt from this provision? Why wouldn't
every local government in the state have an
option to opt out of that law?
ACTING PRESIDENT MORAHAN:
Senator Rath.
SENATOR RATH: The bill that you
see in front of you and the power that would
rest in the council for resolving disputes
that would be brought to it would, I believe,
as it became familiar with its work, would
take a look at just the kind of scenario you
are pointing to and find through judicial
review what the answer would be.
SENATOR SCHNEIDERMAN: Thank you.
Mr. President, on the bill. On the
3846
resolution, excuse me.
ACTING PRESIDENT MORAHAN: On the
resolution.
SENATOR SCHNEIDERMAN: I
appreciate the good intent behind this. I
understand the dilemma of those in local
government. But the questions I've raised
reflect my own very real concern that we have
a little bit of a situation here where we may
be throwing out the baby with the bathwater.
I'm concerned that this has such
broad application that it essentially would
hamstring the power of this Legislature to
take action in a broad variety of areas.
Virtually everything we do requires local
governments to spend money to enforce the laws
that we pass.
And I think that that's a major
problem with this, and I will voting against
it, although it does address a very real
problem.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Marchi.
SENATOR MARCHI: Mr. President,
3847
this is not an easy question. And simply
because there have been so many abuses, we
have this legislation before us. On the other
hand, I do remember -- and I must say that out
of my respect for the sponsor, I'd like to see
it get a chance.
But I'd like to point out that
many, many years ago, I remember when Governor
Dewey proposed a minimum wage for teachers of
$2,000 a year. Now, there are minimal
requirements that perhaps government may call
for, that budgetary appropriations and
considerations undergird the new and novel way
this problem arises. But there were a great
many complaints, I can guarantee you -- I
remember them -- that this violated rights,
because many districts could get teachers for
far less than $2,000 a year.
So I just wonder -- and I -- it's a
profession of faith in you, Senator. But I
just wonder a little bit if we get into areas
that are shadowy and not that easily defined
and require minimal compliance for good and
sufficient reasons for public policy, I think
you generate by that also a responsibility to
3848
meet a mathematical equation between every
nickel that you spend more or less.
We don't know how problems will
present themselves. And I can tell you over,
well, 44 years, almost, of membership in the
Senate -- and four years before that as
counsel -- that to determine with exactness
the nature and quality is not easy. There are
circumstances that, as I believe you
suggested, raise some problems for any
conscientious legislator.
On the other hand, Senator Meier
attests to the fact that the -- there has -
we have observed cavalier requirements -- not
cavalier in terms of what was sought to be
attained, but not enough sensitivity to the
cost implications, that unless there is a very
genuine address to that problem, are we
requiring something that exceeds revenue
expectations by reasons of our actions alone.
So I throw this out, and I hope
that at least it's grist for the mill in the
future. But my professional faith in the
Senator compels me to say yes, I vote for it.
But I'm voting for it with all these caveats.
3849
And if anybody asks me, I can say,
"Sure, I believe I have." And in some cases I
believe I was right. And you go from one
situation to another.
ACTING PRESIDENT MORAHAN:
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. I'm speaking for the second
time on this bill, so I'll be extraordinarily
brief.
What I can't understand, with all
due respect to my colleague Senator Meier in
his period as the county executive of Oneida
County, where he railed against unfunded
mandates -- why, Senator Meier, would you come
to a body that has approved every single
unfunded mandate for the last 35 years in this
state, from Medicaid to HCRA, putting hundreds
of millions of dollars of pressure on
property-tax payers in Oneida County and
Monroe County and Nassau County and Suffolk
County?
Guess what, there's a secret. They
were all approved by the Majority in this
house.
3850
Senator Marchi, to his credit,
talked about balancing these fine decisions
between who pays for what, whether we should
use our property taxes or sales taxes or
broad-based taxes. Those are critical issues.
I assume that every time one of those bills
like HCRA, like the Medicaid pick-up, like the
long-term care contribution, every time those
bills came up, this Legislature and the Senate
Majority, for 35 years, has conferenced that
issue and said, Boy, this is a real tough
call. Do we raise property taxes, force the
counties to raise them in the cities and the
towns, or do we pay for them with our
broad-based taxes?
Now, I would just tell you that
this part of the house has not had that debate
in its conferences. Give us the power. If
the voters someday give us the power to do it,
we'll have that debate.
SENATOR MEIER: Mr. President -
ACTING PRESIDENT MORAHAN:
Senator Meier.
SENATOR MEIER: Will Senator
Dollinger yield?
3851
SENATOR DOLLINGER: When I'm
finished, Mr. President, I'd be glad to.
Give us that power, and none of us
will ever stand up and say that we abused the
power the people gave us.
Which is what I believe both
Senator Rath and Senator Meier said, there
have been abuses of unfunded mandates. The
Senate Majority has been abusing its power?
Is that the confession I hear today on this
floor in this bill?
I would just suggest that everybody
in this state ought to know that, that you've
abused your power by passing unfunded mandates
down to the people of this state. That seems
to me to be a horrible thing to have done.
But for some reason, this is almost
like an amnesia bill. You do it time and time
again and then you forget about it. There's
that old line from the guy who runs the
infomercial about the rotary oven. Remember
his line? "Set it and forget it."
Well, obviously, you put the bill
in place and then you forget it. And then you
say to the people of this state, Please stop
3852
us from abusing our power by passing on
unfunded mandates.
I would suggest to everybody in
this house, the power to stop unfunded
mandates lies with 31 members of this house.
We can cut them off dead. We can stop them
every single time.
It may take a little political
courage to do it. It may mean that we have to
spend more money and raise more taxes, because
it's going to be far more expensive for us to
use our sales and our income taxes to pay for
all the things that we think are in the public
interest. But if that's what we're going to
do, the power to do it rests right here.
Right here.
I would suggest to my colleagues in
the Republican Majority, you've had the power
for 35 years, you've suggested you've abused
it somehow by passing all these unfunded
mandates on. Maybe it's time for the people
of this state to give this party the power.
And I'll guarantee one thing. We won't abuse
that power in the eyes of our voters or the
people of this state.
3853
Now, Mr. President, I'll be glad to
yield to Senator Meier.
ACTING PRESIDENT MORAHAN:
Senator Meier.
SENATOR MEIER: Mr. President, as
he usually does, Senator Dollinger took me
long past the point where I could remember my
point. And I'll reserve my comments to
explain my vote.
SENATOR DOLLINGER: Thank you,
Mr. President.
ACTING PRESIDENT MORAHAN: On the
resolution, the Secretary will call the roll.
(The Secretary called the roll.)
ACTING PRESIDENT MORAHAN:
Senator Meier.
SENATOR MEIER: Mr. President,
I'm going to vote in favor of this measure.
And I'm going to say this in
response to no one in particular. But I came
here because this is the place, this town is
the place where these mandates are formulated.
And the last time I checked -- and you can
check my record as county executive -- there
was no particular political party or person
3854
who had a mandate on -- or who had a monopoly
on forming them. An awful lot of these
happened with broad bipartisan support.
I vote for this because Senator
Rath's attempt is one to put discipline on the
process, to put discipline on all of us. To
put discipline on all of us. That's why I
came here.
And you can look at examples where
this conference has supported relief of
mandates with regard to revenue-sharing, to
correct the local share in HCRA, with regard
to many welfare reform measures, with regard
to other measures that have given localities
more flexibility in relief from mandates.
I'm proud of my service in county
government. I'm proud to serve here and proud
to be part of this conference. And I proudly
vote aye.
ACTING PRESIDENT MORAHAN:
Senator Rath.
SENATOR RATH: To explain my
vote, and to finish the conversation this
year, if you will.
I thank you, Senator Marchi, for
3855
your vote of confidence. And it is
complicated. And you, of all of us, have seen
it from the beginning, from the time when
Medicaid was just going to be a small program
and it was going to be fine for the counties
to pick up the costs. We know the rest of the
story.
But you made a comment that sticks
in my mind, and it's really where I'm coming
from. And I thank my colleague Senator Meier
for pointing out that what we're talking about
here is discipline. It's not only our
discipline, it's the discipline of the
constituents that we represent. What do they
want? They want police, they want fire, they
want highways, they want roads, they want
social programs, they want education, they
want everything.
And who does it? The school
boards, the town boards, the county, the
state? Who pays for it? Who takes credit for
it? Who puts it in their newsletter, if you
will, if that's the basis of the bottom lines
that we're going to draw.
But, Senator Marchi, you said we
3856
need a genuine look at this and we need a
genuine opportunity to address the problem.
And frankly, I think if this rises to the
level of a discussion of a constitutional
amendment, we will be in that discussion with
our colleagues. And we'll say to them, Do you
want us to pay for it, or do you want the
local control to pay for it? And do you want
us to mandate it so you don't have to be
responsible for it?
This has not been happening just
for a short time. I look at my colleague
Senator Pat McGee, who would drive up from
Cattaraugus County every Saturday morning for
months on end in the bipartisan Alliance of
County Legislators in the 8th Judicial
District, to talk about welfare and Medicaid
reform. We've been doing this for the better
part of 20 years.
I am hopeful. And again, I don't
think there's anyone in this room who voted
against this who's against what we hope the
end result will be. I think you disagree with
the manner and the method that we're trying to
get to the end result.
3857
But on that note, I thank you all
for your patience today.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Rath.
Senator Coppola.
SENATOR COPPOLA: Yes, Mr.
President, I'd like to explain my support for
this bill.
I came here to this body for one of
these reasons, for one of these reasons, and
this is one of them: What mandate has done to
Buffalo, New York, and Erie County. It's
severely hurt us. We are in an economic
crisis in that end of the state. And with the
legislation that's been passed in Albany over
the years, that had a definite impact on our
economy.
And I hope that this is a sincere
push to alleviate those type of restrictions
on the residents of Western New York. And I
personally will remind everyone here in the
future, when mandates do come up: Hey, what
did we do today? I will remind you of that.
And that's so important. It's so
important that we're sensitive to the areas
3858
that are hurting economically. Niagara Falls
and Buffalo, New York, are hurting
economically.
Thank you.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
The Secretary will announce the
results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 1178 are
Senators Connor, Dollinger, Duane, Hevesi,
Lachman, Onorato, Rosado, Sampson, Santiago,
Schneiderman, A. Smith, M. Smith, and Senator
Stavisky. Ayes, 43. Nays, 13.
ACTING PRESIDENT MORAHAN: The
resolution is adopted.
Senator Farley.
SENATOR FARLEY: Thank you, Mr.
President.
We have a distinguished visitor
with us today in Wayne Jackson, the
sergeant-at-arms over there in the Assembly.
He's been standing here patiently, listening
to this debate.
He has asked that I recognize a
3859
number of my constituents who are in the
gallery, the Mohonasen class of Mr. Cupas. I
guess Sergeant Jackson visits that class and
tells them war stories about Vietnam, et
cetera, et cetera.
But we're very, very proud of
Mohonasen and the group that is here with us
today. So if you'd give them the warmth of
this house, I'd appreciate it.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Farley.
Welcome to our chambers. We wish
you a good time here in Albany, and we're glad
to have you here.
Senator Stachowski.
SENATOR STACHOWSKI: I'd just
like to commend Senator Farley on recognizing
all these people and point out to him, as
Senator Kuhl did a couple of weeks ago to
Senator Montgomery, that we're glad that you
recognize those people, but it is against the
rules.
Thank you.
ACTING PRESIDENT MORAHAN: Thank
3860
you, Senator.
The Secretary will read.
THE SECRETARY: Calendar Number
1179, by Senator Volker, Senate Print 1912A,
an act to enact the Criminal Procedure Law
Reform Act of 2000.
SENATOR DOLLINGER: Explanation,
please, Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Volker.
We'll wait a moment or two until
Senator Volker returns to the chamber.
Senator Volker, an explanation has
been requested on your bill, 1179.
SENATOR VOLKER: Okay, 1179.
Which one is this?
Mr. President, this is a bill which
has passed this house on a number of
occasions. And I don't have the vote from
last year. It has about four components to
it.
The first component -- and these,
by the way, are essentially statutes that
modify Court of Appeals cases. And I have to
say, very honestly, that whether you agree or
3861
disagree with some of the issues that are
contained in this bill, I really do believe
that the so-called O'Doherty case and the
Ranghelle case and so forth do represent some
pretty hairy -- what's the word I want to
use? -- some pretty strange decisions by the
Court of Appeals from this perspective.
As opposed to the individual
defendant, of course they would agree with one
defendant, for instance, who never objected to
him being in every part of the trial and then
once the trial was over was able to use that
to get his conviction thrown out even though
his attorney never objected and he was given
the opportunity during the whole trial to be
there.
There's some other, I think,
decisions that really -- one of the others
here is a change so that, for instance -- and
as a law enforcement officer, I remember
having this happen, where you do a lineup and
you identify the person at the lineup and then
months, maybe years later, when the trial
finally comes up, the guy maybe has put on
150 pounds, wears a beard and so forth, and
3862
you can't identify him.
What this statute would say is that
although the court has thrown out an
identification based on the fact that at the
trial the person couldn't positively identify
the defendant that he or she had already
identified at a lineup and had identified him
in an affidavit and so forth, because they
couldn't identify him at the trial.
And basically what this statute
would do is to say that the prior
identification, the evidence of the prior
identification obviously from the lineup and
other evidence, could be used at the trial
even though the victim couldn't positively
identify that person at the trial since the
person may have radically changed their
appearance or whatever.
And I know for a fact that
defendants have done that. We've seen it,
I've seen it. And when you think about it, it
presents a rather odd look at the law to think
that because a person is -- his identity has
changed -- and keep in mind that this may be
several years later.
3863
That's in relation to
identification testimony. The defendant, as I
said, has the right to be present at all
stages of the proceeding. But where the
defendant chooses not to be -- and sometimes
the defense attorney would rather not have the
defendant there, for one reason or another.
And what has happened is that there
have been Court of Appeals cases that
basically have said if the defendant wasn't
there for something, that maybe he would have
impacted on the case, while he wasn't there,
they've thrown -- after the conviction, after
trial, then the Court of Appeals has said that
in a couple of cases -- in one case in
particular we're talking about here, the case
can be thrown out because the defendant, by
not being there, was prejudiced, even though
his attorney didn't object.
There is several other parts of
this bill that deal with the suppression of
evidence. One in particular is the issue of
statements that are produced at a trial.
There is a provision of the law that says that
within 15 days of the arraignment, the
3864
defendant must be shown any identification
evidence or any testimonial evidence from
witnesses that will be produced at the trial.
The problem obviously is that if,
as the trial is going on, a witness should
come up, as sometimes happens -- what this
bill basically says is that if the trial has
to be adjourned to give that person the 15
days, then that will be allowed. But you
can't use that later as a way of getting the
whole trial thrown out, because the
prosecutor -- for instance, if the prosecutor
had no knowledge that there was another
statement someplace or another witness, then
it's what's called so-called technical
harmless error.
So I think what this bill attempts
to do is to deal with a series of procedural
issues that have come up because of
technical -- a technical reading of the
statutes in this state. And they deal with a
series of Court of Appeals cases.
So that's basically what this bill
does. As I say, it makes a change in
identification, it makes some changes in the
3865
issue of the defendant being there at all
proceedings of a trial. It actually does not
change the rules directly. All it does is
deal with the way in which the Court of
Appeals has interpreted those rules.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, just on the bill, very briefly.
ACTING PRESIDENT MORAHAN:
Senator Dollinger, on the bill.
SENATOR DOLLINGER: Senator
Volker and I, I think, have discussed this a
number of times. And there are parts of it
that I do support. For example, the
clarification of the witness identification, I
think that's reasonable and fair.
I also think it's fair to allow the
prosecutor to appeal preclusion orders. As
Senator Volker knows, you practically win the
case, you can win the case for a defendant
right at the start through the preclusion
order, and you end up with a -- in some cases,
no court adjudication at all, because the case
3866
is thrown out right then and there and the
prosecution is virtually over.
I'm not opposed to the notion that
a prosecutor can go back and appeal a
preclusion order to see whether he can get the
government's evidence in, whether it meets
constitutional standards.
The other piece that I'm not really
opposed to is the harmless error rule with
respect to the defendant's attendance in
certain phases of the criminal proceeding. I
know that there's an enormous push to have the
defendant present every single time. I also
know that that's an enormous, if not headache,
nightmare for governments, for local
communities that are constantly shuttling
people in and out of jails for appearances
that can sometimes be as short as 45 seconds
or a minute.
But the piece that I am most
aggrieved by is the piece that talks about the
Ranghelle rule. Because as Senator Volker
knows, the production of evidence that's in
the hands of the government of witnesses that
they're presenting at trial should -- they
3867
should be required to disclose all the
statements that they have of those witnesses,
because it's the only opportunity that the
defense gets to question the veracity of the
witness that appears on behalf of the
prosecution, to see whether there are
inconsistent statements, much less whether
there is exculpatory evidence in those
statements.
I believe the Ranghelle rule was
the basis for the overturning of the
conviction of Betty Tyson in Rochester, New
York. Because in 1972, she was convicted of
murder, and one of the witnesses who testified
at the trial had given a statement to the
police which was never revealed at the time of
trial.
It seems to me that while this bill
has several aspects to it that I believe
represent a rebalancing -- it's consistent
with our legislative duties to rebalance the
scales of justice in our criminal justice
system. I'm not opposed to doing that. I
think we've got the power to do that. I think
it's right for us to do that.
3868
But the Ranghelle piece of this, in
my opinion, makes this bill objectionable.
I'm going to vote against it. Senator Volker,
if you bring the bill back with that piece in
it, you may get my vote. But I believe that
anyone who is accused of a crime, when we're
going to take away their liberty interests,
they ought to be able to get all the
statements from the witnesses that are going
to testify against them.
And whether they're exculpatory or
inculpatory, whatever the nature of those
statements, the defense ought to have them at
the time the witness appears for trial.
ACTING PRESIDENT MORAHAN:
Senator Gentile.
SENATOR GENTILE: Thank you, Mr.
President.
I actually want to take this
opportunity to congratulate Senator Volker on
this piece of legislation. We've done it over
several years.
My experience in the criminal
justice system as a prosecutor leads me to
support these efforts of Senator Volker. And
3869
certainly, certainly my experience has been,
particularly with identification testimony at
trial, a frustrating experience, particularly
with trials that do not commence until a year
or more after the actual crime become
committed. And having witnesses who over that
period of time may be elderly or infirm or
disabled in some way that they cannot make an
identification in the courtroom a year to a
year and a half after the actual incident
occurred.
However, that identification taking
place at a lineup shortly thereafter the
incident occurring, the crime occurring, and
the witness correctly identifying the
defendant at a lineup, with the police officer
present at the time of the identification at
the lineup, it is fair, I believe, fair, for
the police officer then at trial, in the event
of the witness not being able at that point to
identify the defendant -- particularly given
the kinds of trials we have and the delays we
have in New York City, particularly -- for the
police officer to testify in court that at the
time of the lineup, this witness, this victim,
3870
identified Number 2 in the lineup, for
example, and have the police officer testify
that Number 2 in the lineup is indeed the
defendant sitting in the defendant's chair.
I believe that's a fair rendition
of the facts as they happened. And I believe
it's fair for the jury to consider that, given
the fact that a witness a year, a year and a
half later has -- cannot, for whatever reason,
cannot identify the defendant in court.
Particularly also I point out the
right for prosecutors to appeal pretrial
orders precluding evidence. It is a
frustrating experience, ladies and gentlemen,
from the prosecutor's viewpoint that it is the
defense that has appeal rights on pretrial
orders and not the prosecution, particularly
where -- particularly where it's a close call
in a weighed hearing, identification hearing,
or a suppression hearing on statements, if it
is a very close call, the prosecutor could
make or break the case.
And prosecutors are limited,
limited only to the trial court's, the trial
court's decision on a pretrial order. That, I
3871
believe, is unfair, particularly in the close
calls on those pretrial orders. So I would
definitely believe that's a fair provision in
this bill.
Lastly, in terms of the Ranghelle
decision -- and I appreciate what my colleague
Senator Dollinger has mentioned in that
regard. But what we have to understand here
is that the Ranghelle decision is a per se
reversal, a per se reversal on a conviction.
In the event -- in the event that a
statement is discovered after -- after trial
or after the period in which statements are to
be turned over, and even if that statement is
a duplicative equivalent, a duplicative
equivalent of what has already been handed
over to the defense, even if it is that
equivalent, the Ranghelle rule is a per se
reversal.
And from a fairness viewpoint, I do
not believe that a per se rule is the proper
rule here, particularly if the defense
actually gets a similar statement or a
statement that is a duplicative equivalent of
the statement that is discovered later on.
3872
Particularly where a phone
number -- and it could be as simple as this, a
phone number written down by a police officer
on the back of a matchbook cover, and that
matchbook cover is not discovered or not
remembered by the police officer until months
later, that that was written down.
Under the Ranghelle rule, if that
phone number is then brought to the attention,
brought to the court, under Ranghelle, that's
a per se reversal on that conviction.
That, I believe, is an unfair
standard, particularly when you have U.S. v.
Brady, which indicates that should -- a piece
of evidence like that discovered later on is
exculpatory to the degree of maybe reversing a
conviction, U.S. v. Brady requires the
prosecutor to bring that evidence to the
attention of the court. That is a -- that is
a rule that every prosecutor in every state
must follow.
Given U.S. v. Brady, I think the
Ranghelle rule and the per se reversal is far
too harsh and unfair in this state.
So, Senator Volker, again, I
3873
congratulate you on this piece of legislation,
and I urge my colleagues to see the
distinctions that you're trying to make.
Thank you.
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Read the last section.
THE SECRETARY: Section 10. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 1179 are
Senators Connor, Dollinger, Duane, Sampson,
Santiago, Schneiderman, A. Smith, M. Smith,
and Senator Stavisky. Ayes, 47. Nays, 9.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
1184, by Senator Volker, Senate Print 5877A,
an act to amend the Banking Law, the Civil
Practice Law and Rules, and the Criminal
Procedure Law, in relation to civil
forfeiture.
3874
SENATOR DUANE: Explanation.
SENATOR VOLKER: Mr. President -
ACTING PRESIDENT MORAHAN:
Senator Volker, an explanation has been
requested.
SENATOR VOLKER: -- this is a
small bill with 71 pages in it. One of the
key elements in the change from 1999 to 2000
is it was renamed. It was formerly the
Omnibus Crime Act of '99. It is now the
Sentencing Reform Act of 2000.
That, I believe, is the prime
changes that -- I mean, there's some changes
in -- I believe in amendments which I don't
believe are central to anything that's in the
bill. But I think many of you will remember
that we did pass this bill last year.
It is primarily -- the issue that
has primarily been involved in this bill is
the -- this is the definite sentencing bill,
essentially. What it means is that if a judge
sentences a person in a felony case,
essentially that person is subject to the
6/7ths rule. That is, that individual will
serve 6/7ths of his or her sentence, and the
3875
final year of that would be on parole, what
would amount to a noncustodial parole.
That is one of the prime -- there's
also provisions in here that would allow for,
for instance, violations of that parole so
that you would have to continue on parole and
could be remanded back for several years. It
sets up a different concept of parole than is
presently being done.
Also in here is amendments that
relate to juveniles. It upgrades the
penalties for youthful offenders for all the
major crimes. It would provide for minimum
sentencing for juveniles in felony cases -
that is, cases that if that person were an
adult, that person would be subject to even
more severe penalties.
It provides for the appeal by the
prosecutor of what the prosecutor considers
lenient sentences, just as the defendant has
the ability to appeal now. It also provides
for the appeal of low bail.
So it is a lot of things in here,
including some changes in the structure of
drug sentencing. It is a huge bill, and I'm
3876
the first to admit it. And as I say, that's,
I think, the central provisions that are in
this bill.
ACTING PRESIDENT MORAHAN:
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. If the sponsor would yield.
SENATOR VOLKER: Sure.
SENATOR DUANE: Thank you.
Isn't it true, under this
legislation, that the bill eliminates
discretionary parole for nonviolent felony
offenders and requires them to serve 6/7ths of
their determinate sentences?
SENATOR VOLKER: It doesn't
eliminate it altogether. But it eliminates it
to a great extent.
Of course, one thing I think that
you should understand is that in this bill,
the way it is structured, the judge would know
before he ever gives a sentence what the
actual time is going to be. And one of the
things that we've learned under Jenna's Law,
which has already been passed -- and that's
for violent felonies -- what judges are doing
3877
is where before maybe they would sentence to
five to ten, now what they're doing is they're
sentencing to four, maybe four or five,
whatever.
In other words, they have the
latitude in some cases to do that. In other
words, even though there's no possibility or
what amounts to no possibility of parole in
certain cases, they're -- actually the
sentences are a little bit below in some cases
what they would normally sentence because of
the latitude that would have been allowed
before for indeterminate sentencing. So it is
true this will dramatically limit
discretionary parole.
SENATOR DUANE: And isn't it also
true that although some have said that this is
part of reform of the Rockefeller Drug Laws,
that in fact the only change under this
legislation is that now in some -- or I should
say in a few instances, an appellate review of
certain sentences is permitted?
SENATOR VOLKER: It is really not
reform of the Rockefeller Drug Laws. But it
does deal with some latitude in sentencing and
3878
drug laws, yes. But I wouldn't say that this
has any major implications as far as -- but it
does have some amendments in here that would
impact on drug sentencing, yes, that's true.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes, I do.
SENATOR DUANE: I'm going to
respond to that in two ways. But actually,
this bill limits even further judicial
discretion in sentencing.
SENATOR VOLKER: Well, it
would -- what you're saying, I think, is that
in certain cases it would limit discretion,
and in other cases it would actually broaden
discretion. But in some cases that's true, it
would limit discretion for certain violations
of drug laws. It would also provide some
additional discretion in others.
SENATOR DUANE: Through you, Mr.
President.
ACTING PRESIDENT MORAHAN:
3879
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes.
SENATOR DUANE: Well, certainly
judicial discretion, you know, by allowing
mitigating and aggravating factors, is
decreased or certainly not increased in this
legislation. So generally, this is a further
limitation of judicial discretion; isn't that
correct?
SENATOR VOLKER: Well, I think I
would probably disagree with that. I think
you are -- there is still some additional
discretion here. But I think what you're
saying is that you're not providing some
things that would lead to the judge's
decision.
But in fact, the judge still in
certain cases -- or judges would have some
additional discretion under this bill. And
particularly at the appellate division level,
as been pointed out by my counsel, which is
not available now.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
3880
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes, I do.
SENATOR DUANE: But in fact, even
with this legislation, some of the people
sentenced under the Rockefeller Drug Laws, and
here, would be given longer sentences than
those served by rapists and in some cases even
murderers.
SENATOR VOLKER: Absolutely not.
Senator, I don't know where that came from.
If you're talking about coupled
with -- part of the problem, I think here, is
this myth about these huge numbers of drug
felons that are going to jail under the
Rockefeller Drug Laws. There's only a few
hundred every year now that are going. Most
of them are going under persistent violent
felony offenders and under second felony
offender statutes.
Some of those do involve drugs, and
that's true. But they also are coupled,
generally speaking, with something else
besides drugs.
But this would broaden discretion
3881
in certain cases. But I don't know how it
would provide -- certainly not murder.
There's no -- I mean, the provisions now for
murder are much stringenter than any of the
Rockefeller Drug Laws would provide, in
virtually every case.
SENATOR DUANE: Just to go back
to an earlier -
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes, I yield.
SENATOR DUANE: To go back to an
earlier question. But really, the only real
reform of the Rockefeller Drug Laws is the
permission for the appellate division to
review certain sentences imposed under the
Rockefeller Drug Laws.
SENATOR VOLKER: Essentially,
that's true. This is not the bill that the
Governor put forth, in fact, or the bill that
has been sponsored through the Chief Judge of
the Court of Appeals that deals with
Rockefeller Drug Law issues.
So it's true, this is not that
bill. But it does provide some additional
3882
latitude for the appellate division to make
decisions on cases involving drugs.
SENATOR DUANE: Thank you.
Through you, Mr. President, if the sponsor
would continue to yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes.
SENATOR DUANE: I'm wondering if
the sponsor is familiar with federal judges
who have been burdened with the lack of
flexibility in sentencing and many of whom now
complain bitterly about that lack of
flexibility in sentencing.
SENATOR VOLKER: Yeah, I'm
familiar with some federal judges that are
saying that. It's always fascinating to me.
I must tell you, yeah, there are -- I think
federal judges have incredible flexibility. I
mean, if you know anything about how federal
judges operate -- in fact I had said at one
time I would like to be God and the way to be
God is to be a federal district court judge.
I think they have a lot more
flexibility than they would admit. I've heard
3883
some of the complaints. I think that they're
being a little bit -- I think they're being a
little bit out of bounds. If you see an
injustice, any judge that sees an injustice
can deal with that. In fact, even -- that's
even true, by the way, on a state level with
mandatory -- if a prosecutor and a judge
decide that they think that a sentence is
harsh or whatever, there are ways to deal with
it.
I think the problem is -- and I
understand the politics of it, and the
difficulties involved and that most judges
don't want to deal with those kinds of issues,
particularly because they're not sure who
they're dealing with sometimes. But federal
judges, some of it I think maybe they
protesteth too much. But yeah, I've heard
some of the complaining by federal judges.
But remember, most people that are
sentenced in this country are sentenced -- in
major crimes and in drugs are sentenced by
state judges. And as I pointed out, that's
one thing we should understand, that -- is
that we're dealing with the real criminal
3884
justice issues here on a state level. And I
don't mean just us, I'm talking about
nationwide.
And it seems to me that sometimes,
however, some of the judges that are
complaining are some of the same judges who
would like to give very lenient sentences.
And it's true that we have restricted them and
made it more difficult.
And that is especially true, by the
way, unfortunately in your city, where very
lenient sentences is one of the things that
brought on the so-called Rockefeller Drug
Laws, because judges in the city were
sentencing to one-third of what judges upstate
were sentencing. And New York City had the
biggest drug problem at that time in the
country.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes.
ACTING PRESIDENT MORAHAN: The
3885
Senator yields.
SENATOR DUANE: I'm wondering if
the sponsor can tell me if there are any
circumstances under which he believes that
parole is a good thing and, if so, when.
SENATOR VOLKER: Well, parole, as
you know, is still available here, it's just
that it's much more limited.
By the way, as my counsel points
out, in this bill is a codification of the
DTAP program. And it would be the first time,
I think, that we have actually put into
permanent law the DTAP drug treatment program,
which is one of the things I'm sure that you
would probably agree is a good thing.
This does not eliminate parole
altogether, but it does restrict the use of
parole in a lot of cases, and that's true.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield to
Senator Duane?
SENATOR VOLKER: Yes.
3886
SENATOR DUANE: At the risk of
sounding like a broken record, I just want to
repeat my question and ask whether the sponsor
believes that there are any circumstances
under which he believes parole is a good thing
and, if so, what are those circumstances.
SENATOR VOLKER: Well, the
circumstances are is the judge can
determine -- because the judge determines the
length and effect of parole in many cases,
post-release parole. And that's basically
what the bill says.
So there's still availability of
parole, and it's a decision that the judge
gets to make, generally speaking, rather than
the Parole Board, as it is now.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield to
Senator Duane?
SENATOR VOLKER: Yes.
SENATOR DUANE: For an additional
question. Not because I think the last
3887
question was answered, but just because I feel
it's time to move on.
I'm wondering if the sponsor
believes that, for instance, correction
officers will have a harder job now if
incarcerated people believe that they have
less hope of being released.
SENATOR VOLKER: I think the
answer to that is no. I don't think parole
officers are -- or, rather, correctional
officers will have a tougher job. These
people will, generally speaking, know that
they'll be released.
One of the things that is
interesting and that was a problem was when we
were proposing, many were proposing to avoid
the death penalty, life without parole, that
presented a very serious problem and always
presents a serious problem for people in our
correction system.
But there is obviously always hope,
and even -- and I think in this case we do not
say that these people will not get out. They
eventually will get out. And although in many
cases they'll be subject to post-release
3888
supervision, which amounts to parole, but they
will get out. And I don't think that's going
to create any more problems for correction
officers than is already the case.
I think the best thing for
correction officers, if you ask them, is they
want fewer people in the system. And they
would hope that the new prison that we're
building, and hopefully one more, will stop
all the double-bunking that is going on in the
prisons and make it easier for them to handle
the numbers of inmates.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Volker, do you continue to yield?
SENATOR VOLKER: Yes.
SENATOR DUANE: Am I correct in
that I heard the sponsor put on the table the
possibility that he thinks it's a good idea to
eliminate the Parole Board?
SENATOR VOLKER: You're asking me
whether I think it's a good idea to eliminate
the Parole Board? No, I don't think it's a
3889
good idea. And I'm not aware that the
Governor thinks it's a good idea either. And
we don't do that in this bill.
SENATOR DUANE: Thank you. Thank
you, Mr. President. On the bill.
ACTING PRESIDENT MORAHAN:
Senator Duane, on the bill.
SENATOR DUANE: I think that in
the way that I asked my questions, my position
on this bill is pretty clear. So I'm just
going to add a couple of other points.
And one is just generally I think
that flexibility, including the possibility of
improved drug treatment both in and out of
correctional facilities, would be of great
help.
And I also -- if the Rockefeller
Drug Laws and the harsh sentences that have
been -- were mandated by the Rockefeller Drug
Laws are alleged to have in any way helped
solve the drug problem in New York City, I
think that that is an erroneous conclusion to
be drawn. As far as I can tell, the
imposition of harsher penalties has not had a
mitigating effect on drug addiction or, for
3890
that matter, drug trafficking.
And I think that to -- again, to
limit even further judicial discretion in
cases is not at all helpful towards our
winning the war on drugs or, for that matter,
to win the war on the increases of violent
felonies that are committed.
So I would urge my colleagues to
vote no on this and to explore other means to
actually solve the problem of crime and drugs
across our state.
Thank you, Mr. President.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Duane.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President. On the bill. I just have two
brief comments.
I appreciate the good intention
behind this bill. One of the things that
concerns me very much, though, and this is a
debate that's gone on a long time -- I wrote a
paper on determinate sentencing in law school,
and I think we were having the same debate
then. That was a long time ago.
3891
But one of the things that concerns
me is there's always discretion in the system.
And the more you take it away from judges and
juries, the more the discretion shifts to
prosecutors, who always -- we can't -- we
don't limit their discretion on what to
charge.
And for that reason, amongst some
of the others Senator Duane articulated, I am
going to vote no.
But I am very excited about Senator
Volker's interest in becoming a federal judge,
and I have relayed that to Senator Schumer and
Senator Moynihan, and I look forward to
supporting his confirmation.
Thank you.
(Laughter.)
ACTING PRESIDENT MORAHAN: Thank
you, Senator.
Read the last section.
THE SECRETARY: Section 114.
This act shall take effect January 1, 2001.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
3892
THE SECRETARY: Those recorded in
negative on Calendar Number 1184 are Senators
Duane, Sampson, Schneiderman, and M. Smith.
Ayes, 52. Nays, 4.
ACTING PRESIDENT MORAHAN: The
bill is passed.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Skelos.
SENATOR SKELOS: If we could take
up the supplemental active list,
noncontroversial.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
THE SECRETARY: Calendar Number
584, by Member of the Assembly Silver,
Assembly Print Number 10096, an act
prohibiting the recovery of costs in
connection with a radiation leak.
SENATOR DOLLINGER: Lay it aside.
ACTING PRESIDENT MORAHAN: Lay it
aside.
THE SECRETARY: Calendar Number
694, by Senator Goodman, Senate Print 7148A,
an act to amend the Local Finance Law, in
3893
relation to the sale of bonds and notes.
ACTING PRESIDENT MORAHAN: Read
the last section.
THE SECRETARY: Section 7. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
827, by Senator Volker, Senate Print 3524A, an
act to amend the Civil Practice Law and Rules,
in relation to conducting depositions.
ACTING PRESIDENT MORAHAN: Read
the last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 54. Nays,
3894
2. Senators Duane and Sampson recorded in the
negative.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
1089, by Senator Skelos, Senate Print 6367, an
act to amend the Tax Law, in relation to
promotional materials.
ACTING PRESIDENT MORAHAN: There
is a local fiscal impact note at the desk.
Read the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 56.
ACTING PRESIDENT MORAHAN: The
bill is passed.
THE SECRETARY: Calendar Number
1092, by Senator Stafford, Senate Print 6988,
an act to amend the Executive Law, in relation
to simplifying execution requirements.
ACTING PRESIDENT MORAHAN: Read
the last section.
3895
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MORAHAN: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MORAHAN: The
bill is passed.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Skelos, that completes the reading of
the noncontroversial calendar.
SENATOR SKELOS: If we could then
go to the controversial and take up Calendar
Number 584.
ACTING PRESIDENT MORAHAN: The
Secretary will read.
THE SECRETARY: Calendar Number
584, by Member of the Assembly Silver,
Assembly Print Number 10096, an act
prohibiting the recovery of costs in
connection with a radiation leak at the Indian
Point 2 nuclear facility.
SENATOR DOLLINGER: Explanation,
3896
Mr. President.
ACTING PRESIDENT MORAHAN:
Senator Velella, an explanation has been
requested.
SENATOR VELELLA: Yes, thank you,
Mr. President.
As a matter of fact, the Speaker
has had a lot of things on his mind in the
last few days, and one of the things he had on
his mind was pushing to get this legislation
passed, which we have agreed to do in a
bipartisan attempt to put a handle on the
practices of Con Edison.
As many know, on February 15th
there was a radiation leak in from the Indian
Point 2 facility. As a result of that, the
cost for replacing power, the power that would
be lost because of that facility being taken
off-line, was estimated in an Assembly public
hearing on March 3rd to be $600,000 more per
day. That's what it would cost Con Ed to
replace the power per day that was a result of
Indian Point 2 shutting down because of the
leak.
Now, it would be one thing if that
3897
particular accident happened without any
notice. However, Con Edison really acted in
an imprudent manner in connection with this
leak. The company could have replaced the
leaking steam generator and -- as other
nuclear operators had done.
Back in 1981, Con Edison sued the
manufacturer of that facility and of that
particular generator and said, You've sold me
a defective product. This is a generator that
leaks and cracks occur in this generator, and
you sold me a bad product. We're suing you
for the cost of selling us a defective
product.
As a matter of fact, the case was
settled and several other companies also
joined in and the manufacturer of that
particular generator decided to offer to Con
Edison the generator to be replaced, a new
generator, and they would install it.
Seven other utility companies
installed the generators and replaced the
defective ones. Con Edison never replaced
them. They kept those generators on the side
and said, It's going to cost us an awful lot
3898
of money for labor to install those new
generators. We'll keep patching the ones that
are there.
Well, they patched and they patched
and they patched. And then finally, on
February 15, 2000, the patching didn't work
anymore, and there was a major release -
well, not a major, but there was a release of
nuclear energy into the atmosphere. As a
result of that, they shut down the plant and
their costs incurred are $600,000 per day to
the ratepayers that they want to pass on.
I don't believe it's fair. The
Speaker of the Assembly doesn't believe it's
fair. And many members of the house that have
joined in sponsoring this bill don't believe
that we ought to let Con Edison profit from
their own negligence and total lack of
sensitivity.
They knew this was happening, they
had defective equipment, they had a
replacement for the defective equipment
supplied by the manufacturer, and they still
chose to take the chance and not act in a
prudent and reasonable way.
3899
We've entrusted them with the
obligation and with the right to provide power
to us in a safe way. But they choose to do it
any way they want. They got away with what
they did in Washington Heights last year. We
had legislation to penalize them for it. They
promised they were going to be more
responsible, don't do this, don't overreact,
don't let the Legislature step in where we
should be doing these things, it should be the
Public Service Commission.
And the Public Service Commission
is looking into it and studying it, but they
really haven't gotten the message.
This bill gives them the message
loud and clear that you cannot do as you
please. You may have a monopoly on giving
utilities services to our communities, but you
don't have a right to do as you please any
which way. You have to be responsible, you
have to be prudent, and you have to use
probably judgment to provide the safety to the
people of our communities and not back-charge
them for your negligence.
And that's what this bill prevents,
3900
and that's what we're trying to do. The
Speaker and I have joined forces, and I hope
that the members of this house will support
it.
ACTING PRESIDENT MORAHAN: Thank
you, Senator Velella.
Senator Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield for a couple of questions, Mr.
President?
ACTING PRESIDENT MORAHAN:
Senator Velella, will you yield?
SENATOR VELELLA: Certainly.
SENATOR DOLLINGER: Senator
Velella, what is the factual basis produced by
sworn testimony under oath in support of the
declaration of a legislative finding that Con
Edison failed to exercise reasonable care on
behalf of the health, safety and economic
interests of its customers?
SENATOR VELELLA: A series of
hearings that were held by the Assembly which
the Speaker assures me have been substantiated
both through, I believe, Assemblywoman Galef
and Assemblyman Brodsky. All of whom have
3901
been very, very active in this and were very
instrumental in helping to draft this and are
part of a legal petition to have the Public
Service Commission also act on this matter in
the same way that the Legislature is.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
yield.
ACTING PRESIDENT MORAHAN:
Senator Velella, will you continue to yield?
SENATOR VELELLA: Yes.
SENATOR DOLLINGER: Does
Consolidated Edison concede, as this bill
says, that it failed to exercise reasonable
care on behalf of the health, safety and
economic interests of its customers? Do they
admit that?
SENATOR VELELLA: I don't believe
that they would admit to anything. I don't
know. They haven't talked to me on it.
They only came up here to tell me
that this would be a terrible bill to pass, it
would be the wrong message to send, and that
they would prefer to deal with this at the
Public Service Commission level. That's the
3902
only thing they've told me. They admit
nothing, deny nothing.
SENATOR DOLLINGER: Okay. Again
through you, Mr. President. What I'm trying
to find out -
ACTING PRESIDENT MORAHAN:
Senator Velella, do you continue to yield?
SENATOR VELELLA: Yes.
SENATOR DOLLINGER: Is there
sworn testimony from Consolidated Edison in
which they say they agree with the legislative
declaration in this bill?
SENATOR VELELLA: Is that in the
bill, it says that in the bill, that's sworn
testimony?
SENATOR DOLLINGER: No, is there
sworn -
SENATOR VELELLA: I cannot say
that -- most of our committees, as you know,
serving on them, don't take sworn testimony
under oath. So I would think that they
probably did not.
However, I rely on my colleagues in
the Assembly and the Speaker when he says that
they have admitted as to what they've done and
3903
what happened, and I think Assemblyman Brodsky
and Assemblywoman Galef and the Speaker would
not mislead us down a path to say that people
did not admit in terms of a hearing when in
fact they are saying that they did. So I
would rely on them as colleagues.
But was it under oath? I doubt
that seriously. We rarely take testimony
under oath.
SENATOR DOLLINGER: Again,
through you, Mr. President, if Senator Velella
will continue to yield.
ACTING PRESIDENT MORAHAN:
Senator Velella, do you continue to yield?
SENATOR VELELLA: Yes.
SENATOR DOLLINGER: So is it fair
to say that we have no evidence under oath in
this Legislature, either before the Assembly
or before the Senate, in which we can state as
a fact that Consolidated Edison failed to
exercise reasonable care?
SENATOR VELELLA: No. I think
the facts speak for themselves. It may be res
ipsa loquitur, if that's what you want. The
facts that will control the instrumentality,
3904
the facts speak for themselves. And I believe
the Speaker acted prudently, and I believe
that the members of the Assembly acted
prudently.
And, you know, if it walks like a
duck, it waddles like a duck, and it quacks
like a duck, it's a duck. And they messed
up -
SENATOR DOLLINGER: Except when
it's in Latin, and then you're not sure what
it is.
SENATOR VELELLA: That's Bronx
logic.
(Laughter.)
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Velella would
continue to yield.
ACTING PRESIDENT MORAHAN:
Senator Velella, will you continue to yield?
SENATOR VELELLA: Yes.
SENATOR DOLLINGER: Isn't it in
fact the case that that's what the Public
Service Commission does, is it decides whether
or not the utility has exercised reasonable
care and whether the charges that stem from
3905
its conduct can then be passed on as a
legitimate cost to its ratepayers? Isn't that
what we set up the Public Service Commission
to do?
SENATOR VELELLA: That is one of
the functions that they perform, yes.
And sometimes they need a guiding
hand. And I want to provide that guiding hand
to make sure and ensure that they act
properly, they act expeditiously. If they do,
great. If they don't, we've got a law to
protect our people.
And that law is going to be the
Silver-Velella Law to save the ratepayers
money.
(Laughter.)
SENATOR DOLLINGER: Through you,
Mr. President, has Senator Velella put down
his megaphone yet? And I'll ask the next
question.
SENATOR VELELLA: Oh, you'll hear
more of this. As the time goes on, you'll
hear more.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Velella would
3906
continue to yield.
ACTING PRESIDENT FUSCHILLO:
Senator Velella, will you continue to yield?
SENATOR VELELLA: Yes.
ACTING PRESIDENT FUSCHILLO:
Senator Velella yields.
SENATOR DOLLINGER: So can I
assume from that that Consolidated Edison does
not only not agree with this statement but
that we have no sworn evidence upon which in
base this conclusion as we sit here today,
nothing before the Legislature which a
witness, sworn under oath, has said that they
agree with this statement?
SENATOR VELELLA: Senator, there
may not be sworn testimony, or there may be.
However, we don't need to have sworn testimony
and have people come in here and raise their
right hand every time we do something.
Con Edison has done a terrible
thing here. They have negligently performed
their function as a utility company. They
failed to install a generator that was given
to them, to replace a defective one. And they
put lives at risk.
3907
Now, nobody wants to come in and
swear to the fact, yes, we did that. I doubt
very seriously if anybody from Con Ed ever
will swear to the fact that they did it. But
they did it. And Velella's Law is going to
stop them and punish them.
SENATOR DOLLINGER: Mr.
President, on the bill. On the bill, Mr.
President.
ACTING PRESIDENT FUSCHILLO: On
the bill, Senator Dollinger.
SENATOR DOLLINGER: I greatly
appreciate Senator Velella's exuberance in
support of this bill and his -- oh, I'd say it
but it will up in a piece of literature
somewhere -
SENATOR VELELLA: Absolutely.
SENATOR DOLLINGER: -- his
seemingly tireless work.
But I would suggest, I would
suggest that this bill is exactly the problem
that I debated an hour ago with Senator Meier
and Senator Rath. This is a mandate.
This is us telling another agency
we've found all the facts, you don't need to
3908
worry about the facts, we've found them. We
don't have any proof of that, but we're going
to exercise our legislative power to tell the
Public Service Commission how a determination
ought to be made. And if it isn't enough that
we're going to tell the Public Service
Commission, my gosh, we're going to tell me
the Nuclear Regulatory Commission what the
facts are.
All without a shred of proof that
would be acceptable to a lawyer like Senator
Velella, proof that he could rely on, sworn
testimony under oath, that old fact-gathering
procedure we use when we've got disputes where
we put people under oath and say you swear to
tell the truth, the whole truth, and nothing
but the truth.
No, we don't have any of that. And
yet we're making a legislative finding that
somebody failed to exercise reasonable care.
I go back. This Legislature for
the last 35 years has had that side of the
aisle decide everything, all the unfunded
mandates. Now we're doing what we've hired
judges to do. When does this Legislature,
3909
this body, stop doing everything on behalf of
everybody else? Why do we set up a Public
Service Commission procedure and then say, You
can't do it, we're not going to let you find
the facts, we're not going to let you disagree
with us, the almighty Legislature?
I would just suggest, Mr.
President, that this bill is horrible public
policy. This is a usurpation of fact finding
that we've have created other agencies to do.
This may make a great billboard, a fabulous
billboard, but it is terrible public policy.
Let's let the Public Service
Commission find the facts. Let's let the
Nuclear Regulatory Commission find the facts.
If they are as Senator Velella and the Speaker
suggest, let the Nuclear Regulatory Commission
fine Con Ed. Let the Public Service
Commission say you can't pass the costs on.
We've got a whole process set up for doing
this.
Why we should let politics
intervene and try to usurp the power that
we've given to the agencies created by the
federal and state government to do it -- the
3910
procedure is already there. It may be great
politics; it's horrible policy.
I vote no, Mr. President.
ACTING PRESIDENT FUSCHILLO:
Senator Oppenheimer, why do you rise?
SENATOR OPPENHEIMER: I'd like to
speak on the bill.
ACTING PRESIDENT FUSCHILLO:
Senator Oppenheimer, on the bill.
SENATOR OPPENHEIMER: I find this
sort of fascinating, that I will be supporting
Senator Velella, the great environmentalist,
against Senator Dollinger, the great
spokesperson for major industry.
(Laughter.)
SENATOR OPPENHEIMER: It does
seem a bit bizarre. Maybe it's the land of
Oz.
But the fact is that we do have
support for this issue, strong support from
the Environmental Planning Lobby and from
NYPIRG. So our environmental community does
feel that this is an important issue.
There is a lot of information out
there, and I don't know if it has been
3911
determined by some agency or court that would
appeal to Senator Dollinger. But the fact is
there was a Governor's task force that did
look into this issue and found that Con Ed was
at fault.
The fact is that there is another
plant right nearby, a matter of steps away,
called Indian Point 3. And that is owned by
our New York State Power Authority. They had
the same problem with the same steam
generators, because the manufacturer gave them
faulty products. They were told about it, and
in 1989 our New York State Power Authority
removed those steam generators, at the cost of
$110 million. And that's the plant -- really,
it's not even a ball throw away from the plant
we're talking about.
The fact is, these generators were
faulty. And in, I think, 1980, new generators
were supplied to the Con Ed plant, and they
are sitting there. And that is what we in
Westchester have been appealing to Con Edison,
to take them out of this storage room and
install them.
And the reason they haven't done
3912
that is because it is costly, the labor is
expensive, and Con Ed is trying to sell these
plants. So they see it as a major cost factor
when they want to be rid of it.
So I feel that they should not be
held harmless, that they should certainly be
penalized for taking our health and toying
with it, because they knew the generators were
not good. They have been sitting there for
twenty years, and they have not replaced them.
And it's only because they didn't want to pay
the cost of labor.
I think Con Ed can afford to pay
the cost of the labor. And therefore, I'm
very strongly supporting this bill.
ACTING PRESIDENT FUSCHILLO:
Senator Morahan.
SENATOR MORAHAN: Thank you, Mr.
President.
We're talking about who's at fault,
who's not at fault. It seems to me it's hard
to hide that if a corporation is producing
electricity, if a corporation is doing some
activity, if something goes wrong, it's their
fault. Whose fault could it be? The
3913
ratepayers? The neighbors? The corporation
stands responsible for what happens.
I happened to visit -- now, whether
it's gross negligence or mere negligence,
that's arguable. I visited this plant after
this leak as a result of this leak, and I
interviewed the plant management. I inspected
the generator that was in trouble. I looked
in the well to see the reactor.
And simply put, they alleged that
they tested the core and the pipe, if you
will, that contained the liquid, and the tests
revealed nothing.
However, shortly after the tests,
they determined that there was a significant
crack. But they made that discovery after,
after the leak had occurred.
As a result of that leak, there was
another question on how they handled the
information discussion with local
municipalities and emergency people.
As a result of that leak and a
result of that investigation, there is now a
communal effort by all the municipalities and
Con Edison to update, to review and improve
3914
the notification process.
They have their generators not for
a week or a month, but for several years. And
they continue to repair this particular
generator. And currently at this time they're
now making another decision, whether they
should replace it at this time or just replace
the pipe.
I visited there with two members of
the Assembly, my colleagues from my county.
And we urged them now to make a decision to
replace that generator. It's only a matter of
time. And yet they stand to obstruct any
constructive dialogue to replace those
generators.
I support Senator Velella's bill
wholeheartedly. Thank you, Mr. President.
ACTING PRESIDENT FUSCHILLO: Read
the last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT FUSCHILLO: Call
the roll.
(The Secretary called the roll.)
ACTING PRESIDENT FUSCHILLO:
3915
Senator Dollinger, why do you rise?
SENATOR DOLLINGER: Just to
explain my vote, Mr. President.
I'm going to vote no. And -- oh,
my gosh, there's a fly buzzing around.
Mr. President, everything that
Senator Velella said and everything that
Senator Oppenheimer said and everything that
Senator Morahan said may be true, absolutely
may be true. And under those circumstances, I
would be the first to stand up and say if the
Public Service Commission decides that not one
penny of this can be passed on to ratepayers,
I'd stand up and say, "I support you a
thousand percent."
Number two, if the Nuclear
Regulatory Commission says, "Wait a second,
you've exposed the people to a radiation leak
because you failed to repair a generator that
should have been repaired" -- and Lord knows,
if Senator Oppenheimer's theory for that is
correct, that they did it because they were
attempting to reduce their costs in an attempt
to sell the plant, that is reprehensible
corporate behavior. If it's true.
3916
And under those circumstances, if
the Nuclear Regulatory Commission fines Con
Ed, I'll stand up with Senator Oppenheimer and
say, "That's exactly what should have
happened. That's the way our system works."
But I would suggest -- we go back
to it -- we are not a fact-finding agency in
this case. We should not preempt other
fact-finding agencies. This is great
headlines. It's a wonderful political thing
for the Speaker and others, for anyone. But
it's no substitute for a fact-finding process
that we established and we ought to respect.
We're mandating something that is not in our
competence to mandate.
And I would suggest that all those
who don't like those unfunded mandates, let's
stop mandating that the Public Service
Commission find a certain set of facts. Let's
let them do it, let's let the Nuclear
Regulatory Commission do it.
And when both of those things
happen and they're fined and they can't pass
it on, I'll join Senator Oppenheimer and say
the system worked, it worked the right way.
3917
This is the wrong way to do it.
ACTING PRESIDENT FUSCHILLO:
Senator Velella, to explain his vote.
SENATOR VELELLA: Mr. President,
I think that we see here a very, very big
difference between Senator Dollinger and
myself and I think by far the majority of this
house.
When Senator Oppenheimer takes the
floor and makes statements, when Senator
Morahan takes the floor and makes statements,
I believe them. I think they tell us the
truth. I don't think they come in here and
make up stories and deliberately lie to us. I
think when they make statements, I take them
as statements of fact.
And I believe my colleagues, unless
I have reason otherwise. And I would bring it
forth.
This bill passed the Assembly 137
to 10. And I believe of those 137 votes, they
were all members of the Democratic Party
supporting their Speaker, and a good number of
the Republican members supported this bill.
I think the issue is very clear.
3918
For too many times we blame agencies for doing
things. The ultimate authority is here. We
give them their authority. We delegate
authority to those agencies. And when
something like this happens, we have to stand
up as responsible people, take the bull by the
horns and act affirmatively.
And that's what we're doing here.
We're telling the agency that they must follow
our lead, we're not going to wait for them to
lead us. We're the leaders in this state.
I vote in the affirmative.
ACTING PRESIDENT FUSCHILLO:
Announce the results.
THE SECRETARY: Ayes, 56. Nays,
1. Senator Dollinger recorded in the
negative.
ACTING PRESIDENT FUSCHILLO: The
bill is passed.
Senator Bonacic, that completes the
controversial reading of the calendar.
SENATOR BONACIC: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT FUSCHILLO: Yes,
there is.
3919
Senator McGee.
SENATOR McGEE: Thank you, Mr.
President.
On behalf of Senator Rath, on page
number 36 I offer the following amendments to
Calendar Number 945, Senate Print Number
4947C, and ask that said bill retain its place
on the Third Reading Calendar.
ACTING PRESIDENT FUSCHILLO: The
amendments are received, and the bill will
retain its place on Third Reading Calendar.
SENATOR McGEE: Thank you, Mr.
President.
ACTING PRESIDENT FUSCHILLO:
Thank you, Senator McGee.
SENATOR McGEE: Have a good
holiday weekend.
ACTING PRESIDENT FUSCHILLO: You
too. Thank you, Senator McGee.
Senator Bonacic.
SENATOR BONACIC: Mr. President,
there being no further business to come before
the Senate, I move we adjourn until Wednesday,
May 31st, at 2:30 p.m.
ACTING PRESIDENT FUSCHILLO: On
3920
motion, the Senate stands adjourned until
Wednesday, May 31st, at 2:30 p.m.
(Whereupon, at 1:20 p.m., the
Senate adjourned.)