Regular Session - February 6, 2001
622
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 6, 2001
11:09 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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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: With us this
morning to give the invocation is the Reverend
Peter G. Young, from Blessed Sacrament Church
in Bolton Landing.
REVEREND YOUNG: Let us pray.
Dear God, as we call on You for
Your blessing to this Senate chamber, may we
recall the heartache of those in India
suffering from the consequences of an
earthquake and be reminded of how fortunate we
are here in New York State.
May we thank You and again honor
today President Reagan for his 90th year of
service and dedication.
Amen.
THE PRESIDENT: Reading of the
Journal.
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THE SECRETARY: In Senate,
Monday, February 5th, the Senate met pursuant
to adjournment. The Journal of Saturday,
February 3rd, 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.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Skelos.
SENATOR SKELOS: Madam President,
there will be an immediate meeting of the
Finance Committee in the Majority Conference
Room.
THE PRESIDENT: There will be an
immediate meeting of the Finance Committee in
the Majority Conference Room.
Senator Skelos.
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SENATOR SKELOS: Madam President,
now that we're under motions and resolutions,
would you please recognize Senator Dollinger.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, I have just given written notice,
as required by Rule XI, that I will move to
amend the Senate rules by adding a new rule,
XV, in relation to the ethical standards for
members, officers, and employees of the
Senate. It's just for notice purposes.
THE PRESIDENT: It has been
received, Senator, and will be filed in the
Journal.
SENATOR DOLLINGER: Thank you.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: May we please
adopt the Resolution Calendar, with the
exception of Resolution Number 374.
THE PRESIDENT: All in favor of
accepting the Resolution Calendar, with the
exception of Resolution 374, signify by saying
aye.
(Response of "Aye.")
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THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Balboni.
SENATOR BALBONI: Yes, Madam
President. If we could just hesitate for a
moment before adopting the Resolution
Calendar, as I know the very diligent staff
are seeking to put the Resolution Calendar on
the desks. Thank you very much.
Perhaps at this time we could take
up the two privileged resolutions by Senator
Goodman that are currently at the desk.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Goodman, Legislative Resolution Number 381,
mourning the death of Reverend Dr. David H.C.
Read, distinguished citizen and devoted member
of his community.
THE PRESIDENT: On the
resolution, all in favor signify by saying
aye.
(Response of "Aye.")
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THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
The Secretary will read.
THE SECRETARY: By Senator
Goodman, Legislative Resolution Number 382,
mourning the death of Samuel Riley Pierce,
Jr., distinguished citizen and devoted member
of his community.
THE PRESIDENT: All in favor of
the resolution signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Balboni.
SENATOR BALBONI: Madam
President, at this time could we please take
up the noncontroversial calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
28, by Senator Padavan, Senate Print 542, an
628
act to amend the Penal Law, in relation to
possession of gambling devices.
SENATOR DOLLINGER: Lay that bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
33, by Senator Goodman, Senate Print 700, an
act to amend the Penal Law, in relation to
consecutive terms of imprisonment.
SENATOR DOLLINGER: Lay it aside,
please, Madam President.
THE PRESIDENT: The bill is laid
aside, Senator.
THE SECRETARY: Calendar Number
37, by Senator Balboni, Senate Print 861, an
act to amend the Penal Law, in relation to
establishing a new crime.
SENATOR DOLLINGER: Lay that bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
51, by Senator Saland, Senate Print 394, an
act to amend the Social Services Law, in
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relation to allowing regional state park
police.
THE PRESIDENT: Read the last
section.
SENATOR DUANE: Lay it aside,
please.
SENATOR DOLLINGER: Lay it aside,
please, Madam President.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
54, by Senator Skelos, Senate Print 421, an
act to amend the Domestic Relations Law, in
relation to parents or other persons.
SENATOR DOLLINGER: Lay that bill
aside, please.
THE PRESIDENT: The bill is laid
aside.
Senator Balboni, that completes the
reading of the noncontroversial calendar.
SENATOR BALBONI: Yes, Madam
President. At this time may we take up the
noncontroversial calendar, which is in fact
the controversial calendar. Thank you.
THE PRESIDENT: The Secretary
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will read the controversial calendar.
THE SECRETARY: Calendar Number
28, by Senator Padavan, Senate Print 542, an
act to amend the Penal Law, in relation to
possession of gambling devices.
SENATOR DOLLINGER: May we have
an explanation, please.
THE PRESIDENT: Senator Padavan,
an explanation has been requested.
SENATOR PADAVAN: This bill deals
with an anomaly in the current law that in
effect says whether you have one or you have a
hundred illegal gambling devices, the penalty
is still a misdemeanor. We're providing a
threshold of five devices and receipts of
$5,000, changing it to a Class E felony at
that level.
That's the bill.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, will the sponsor yield for a
question.
SENATOR PADAVAN: Yes.
THE PRESIDENT: All right. Go
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ahead, Senator Dollinger.
SENATOR DOLLINGER: Senator
Padavan, with respect to the definition of
gambling device, does this bear any
relationship to computer-operated or computer
gambling devices?
I know that you have been, I think
with others in this chamber, one of those who
has raised red flags and led the fight against
computer gambling, where people are waging
bets through the Internet and through the
computer.
My question is, does this bill
affect that at all?
SENATOR PADAVAN: We don't change
the definition of a gambling device. Whatever
the current law is -- and it's against the law
today. The penalty, of course, being only a
misdemeanor, as I indicated earlier. So we
don't expand upon the definition.
Now, I'm not quite sure in my mind
what's the particular device you were
describing. Would you do that again?
SENATOR DOLLINGER: Through you,
Madam President, if Senator Padavan will
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continue to yield, I'll explain it in greater
detail.
SENATOR PADAVAN: Yes.
THE PRESIDENT: The Senator
continues to yield. Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: One of the
things, Senator Padavan, that oftentimes
happens in Internet gambling is that the
center point is a server, an intermediary
device that allows parties to communicate with
one another and to place wagers and bets. You
need a central facility that connects and
allows the computers to communicate, which is
the enabling device that allows computer-based
gambling to occur.
My question is, is that considered
a gambling device for purposes of this
statute?
SENATOR PADAVAN: No.
SENATOR DOLLINGER: Okay.
SENATOR PADAVAN: Internet
gambling, of course, is another issue which we
intend to address in legislation this session,
hopefully. And that has far-reaching
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consequences, but that is not relevant to this
particular proposal.
SENATOR DOLLINGER: Okay. And
again, through you, Madam President, if
Senator Padavan will continue to yield.
THE PRESIDENT: Does the Senator
continue to yield?
SENATOR PADAVAN: Yes.
THE PRESIDENT: Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: Just so I
understand, Senator, this says that if you -
five devices, is it mentioned in there? I
think you referenced five devices.
SENATOR PADAVAN: Five or more,
yes. That's the threshold for the new
penalty.
SENATOR DOLLINGER: Okay. So the
possession of any five mixture of those
devices would constitute the crime?
SENATOR PADAVAN: Yes. Correct.
SENATOR DOLLINGER: On the bill,
Madam President.
THE PRESIDENT: Go ahead,
Senator, on the bill.
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SENATOR DOLLINGER: I think I
voted for this bill before. And I want to
commend Senator Padavan, who I think most of
us recognize is at the forefront of leading
the Senate's efforts against illegal gambling.
And I think his bill highlights an
anomaly in the law, which is that there is no
aggregation, as there is in many other
instances in our Penal Law in which a
repetition or the possession of a specific
amount increases the penalty. This is similar
to what we do in our drug laws, it's similar
to what we do in aggregating petty larcenies.
And I think this bill was a good
idea when I voted for it last year. I
appreciate Senator Padavan's continuing
clarification of it. And I would encourage
him to take this to the next step, which is in
dealing with the problem of Internet
gambling -- which is becoming an epidemic, I
think, in our state, and I believe it is in my
own community in Rochester -- I would suggest
that we look to ways that we can make the
possession and the ownership of the server, of
the electronic device that permits Internet
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gambling to occur, to make that a crime as
well.
I know -- and I say that fully
understanding that that server could be
located anyplace in the world to facilitate
it. But it seems to me that we would send a
clear message by including that within the
definition of a gambling device. That is, a
device which would otherwise have a benign
purpose but which is used for gambling
purposes.
And I would suggest that the
extension of that into the new age would
facilitate even further the goal that Senator
Padavan's bill is seeking to obtain.
Thank you, Madam President.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. Would the sponsor yield, please.
THE PRESIDENT: Senator Padavan,
do you yield?
SENATOR PADAVAN: Yes.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: I know that here
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we've discussed the differences between gaming
devices when they're being run by a church or
a church group. I'm wondering whether there's
any difference in the bill, any difference in
treatment if the devices were to be found
being used by a religious organization or by a
secular organization.
SENATOR PADAVAN: "Las Vegas
Nights," church-sponsored events that are
legal, are not covered by this bill. This
bill covers illegal gambling devices.
SENATOR DUANE: Thank you, Madam
President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 55.
THE PRESIDENT: The bill is
passed.
Senator Balboni.
SENATOR BALBONI: Madam
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President, I'd like to call a meeting in the
Majority Conference Room of the Racing, Gaming
and Wagering Committee.
THE PRESIDENT: A meeting of the
Racing, Gaming and Wagering Committee will be
held in the Majority Conference Room.
The Secretary will read.
THE SECRETARY: Calendar Number
33, by Senator Goodman, Senate Print 700, an
act to amend the Penal Law, in relation to
consecutive terms of imprisonment.
SENATOR DUANE: Explanation,
please.
SENATOR PATERSON: Explanation.
SENATOR BALBONI: Madam
President -
THE PRESIDENT: Senator Balboni.
SENATOR BALBONI: Thank you. May
we please lay that bill aside for the day.
THE PRESIDENT: The bill is laid
aside for the day, Senator.
SENATOR BALBONI: Thank you very
much.
THE PRESIDENT: The Secretary
will read.
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THE SECRETARY: Calendar Number
37, by Senator Balboni, Senate Print 861, an
act to amend the Penal Law, in relation to
establishing a new crime of unlawfully dealing
with a child in the first degree.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested.
SENATOR BALBONI: Thank you very
much, Madam President.
This bill would amend Section 260
of the Penal Law to create a new crime,
unlawfully dealing with a child, based upon
the dealing of drugs by a parent while in the
home with minor children present.
This has been a problem that has
been identified by police agencies. They have
executed warrants frequently in these types of
situations where there is a drug-selling
practice taking place at the residence.
Oftentimes there is a possibility of gunfire.
And, very shockingly, parents who
participate in this type of illicit behavior
will try to place drugs in and around their
children's rooms in an attempt to avoid
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detection, which obviously is utilizing a
child in a horrible fashion.
This bill would create a new crime
as a deterrent for the parents to not sell
drugs in the home, and also will allow
authorities to take greater steps to prevent
that from happening in the future.
Thank you, Madam President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Balboni would yield for
a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Senator, is it
the presence of children in the vicinity or
the direct utilization that meets the
threshold for treatment under the new Section
260 that you're proposing?
SENATOR BALBONI: If you read
Section 7 -- I mean lines 7 and 8 of the bill
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on page 1, it speaks to the children being in
the dwelling where the custodial child
resides.
So it does not specifically target
the utilization of a child as a mule or the
secreting of drug paraphernalia or drugs on
the child itself, but rather just the fact
that the children are in the residence at the
time of the transaction or the possession of
drugs.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: I do, Madam
President.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: So therefore,
Madam President, what I would assume is that
we are taking what would be the regular
penalty for the unlawful sale of controlled
substances in the first place, and we are now
going to add a penalty because, in addition to
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the sale, there was exposure if not use of
children, and that in a sense compounds what
we consider to be the wrong.
SENATOR BALBONI: That is
accurate.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Senator, I
like the idea. And I think that if you could
think of something very enlightening, I think
that would -
SENATOR BALBONI: Madam
President, could we have a little order in the
chamber? I'm having trouble hearing the
distinguished member from -
THE PRESIDENT: If members would
take their conversations outside, please.
Go ahead, Senator Paterson.
SENATOR PATERSON: Madam
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President, if the Acting Majority Leader would
continue to yield.
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: Yes, he does
continue to yield. You may proceed, Senator
Paterson.
SENATOR PATERSON: I was going to
suggest that if the Acting Majority Leader
finds something of an enlightening way to put
this, I think this will drive me over the top.
I think I'll vote for this bill.
But I do have one last question,
and that is, what is the practice right now?
In other words, wouldn't the Family Court come
in here? Because that actually meets the test
that the bill is proposing, the exposure of
children to drug dealing, to drugs on the
premises, to perhaps being utilized by the
seller to avoid capture by the police. All
those have standing in the Family Court.
So I guess I would assume, Senator,
that what -- the information that you've
researched from law enforcement authorities is
that maybe it could be, but it's not being
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done, and so that's why you want to codify
this element of the law, to cure the fact that
there is no redress for the exposure to
children of the drugs.
SENATOR BALBONI: Madam
President, through you. I am not certain,
Senator Paterson, what specific reference in
the Family Court Act that you are referring
to. To my knowledge, there is no specific -
currently, there is no specific provision of
law that authorizes an increased penalty as a
result of the utilization of a child to secret
drugs.
In addition to which, this
addresses a broader aspect of the problem, and
that is that the actual transaction, or the
attempted sale of drugs in a premises where
there are minor children that the drug seller
has custody over, is an egregious situation,
outrageous in its activity, and therefore
should be punished by an increased penalty.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, I accept that. And I'm going to
vote for the bill, and I commend my colleagues
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that this is a good piece of legislation.
But in answer to Senator Balboni's
question, Madam President, child abuse,
neglect of a child, endangering the welfare of
a child, that's what the Family Court does.
In other words -- and I can't think of a more
prima facie case of this than the one that is
before us right now.
And all I'm saying to Senator
Balboni was I assumed that in writing this
legislation that his information, or the
complaint that he's getting from the police,
is that though those statutes may exist,
they're not really being practiced. And I
don't have a problem with that. In other
words, maybe the Family Court should be
brought into these proceedings. Perhaps for
some reason it's slipping through the cracks,
and this legislation cures it. That's why
I'll vote for the legislation.
But I did want to point out that
there was another avenue of agency
intervention that should have been triggered
by this kind of an action, and I was just
inquiring as to why it hadn't happened.
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SENATOR BALBONI: Madam
President, if I may just respond to Senator
Paterson's comment. First of all, thank you
for voting for the bill.
I do not believe -- I've not
practiced in this area of law for many years.
But I -- and perhaps, Madam President, you
might know better about the state of the law
than I. But I am unsure whether or not you
could bring a prosecution for child abuse on
the basis that drugs are being sold in the
home and nothing more.
I think that you might need more to
bring an actual case of child abuse. And I
think what this does is it now focuses the
additional penalty on the actual individual
who owns the home. And that's really the
point of the law.
Thank you very much, Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, on the bill.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: I guess to
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some degree this is almost a semantic
difference that Senator Balboni and I are
having, and perhaps we shouldn't use the time
here in the chamber to exercise it.
But if I'm not mistaken, I thought
I heard Senator Balboni get up and say that
the fact that you're selling drugs in the home
almost automatically endangers the welfare of
the child because of the high degree of
assaults, violence -- at times, gunfire -
that accompanies drug sales.
So, you know, if this were a
sophisticated operation involving, you know,
very wealthy and sophisticated people and they
did this in a certain way, even in those
situations you've seen situations deteriorate
and people severely injured and children hurt
because of drug sales even on the street.
And so I would think that if there
were ever a case for endangering the welfare
of a child, if not child abuse, it would be
met by this type of circumstance. And that's
why I gladly vote for the bill.
But I was just pointing out that if
the Family Court doesn't see a need for
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intervention on issues such as this, then I
would hope that perhaps Senator Balboni and I
need to sit down and talk about what
establishes the criteria for intervention by
the Family Court.
THE PRESIDENT: Read the last
section.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a few questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
I want to address a different issue than the
issue Senator Paterson was addressing.
I think this is a very difficult
area, and I appreciate the sponsor's efforts
to deal with it. I spent more than ten years
representing a community anticrime program and
trying to deal with situations like this.
My first question is, as far as I
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can tell this bill doesn't actually require a
child to be present or close to drugs or have
any contact with the drugs, just the mere fact
of residence. Is that correct?
SENATOR BALBONI: That is
correct.
SENATOR SCHNEIDERMAN: So it's
possible that this could add an additional
penalty when there was actually no evidence of
use or abuse of a child? It's just the fact
that this was a family's home, the parent was
dealing drugs, and a child was lawfully a
resident there. Is that correct?
SENATOR BALBONI: That is
correct.
SENATOR SCHNEIDERMAN: I have a
question about that, because I'm not sure this
makes a fine enough distinction between the
really appalling conduct that you've spoken
about where there are -- and I've been
involved in cases with this, where parents
absolutely would hide drugs in a child's
closet or in a child's bed, even.
But this would just require that a
child be a lawful resident. I'm not sure that
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makes the fine distinction.
Have you considered dealing with
this from the point of view of eviction
proceedings? Because that's another very
strong weapon against drug dealing in this
sort of context, of making this an element in
our emergency eviction proceedings or bawdy
house proceeding laws that have actually been
strengthened by this house in the last few
years.
SENATOR BALBONI: Madam
President, through you.
The choice of this attempt to amend
the Penal Law so as to provide an additional
penalty was made as a result of law
enforcement's input that when they arrive upon
the residence where there are children living,
whether or not in fact the children are there
at the specific moment in time, that this is
where they were choosing to go with the
system. Because the police, when they enter
onto the premises, have no idea whether or not
the child is actually home.
And from my days at the Nassau
County Police Training Academy, when I was
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involved in the County Attorney's office, I
know that when -- either in response to a
domestic violence call or in response to a
drug sale call at a residence, it is probably
the most dangerous moment for police officers
in their job. They walk on the scene, they
have no idea who's present, who are not
present, and the potential for violence, the
potential for gunplay is very real.
What this bill is choosing to do -
I'm sorry, what this bill is trying to do is
to try to make sure that individuals who would
engage in this kind of behavior understand
that if you do it from your home where your
children live, you're going to go to jail for
a longer period of time, so don't do it.
Don't do it at all. Don't sell drugs at all.
But you're if really going to be so
outrageously insensitive to the risks you're
placing your children in by doing this
behavior, then you ought to go to prison for
longer.
That's essentially the methodology
behind this bill.
SENATOR SCHNEIDERMAN: Madam
651
President, through you, if the sponsor will
continue to yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Why do you
make a distinction that -- I understand that
intent. In that case, why do you make a
distinction that it has to be a child of the
drug dealer?
Isn't it also a problem -- in fact,
perhaps more of a problem of a lot of people,
and certainly in my neck of the woods, who are
dealing drugs who aren't even the parent of
the children who reside in a place? Why
shouldn't the penalty extend equally to
someone who deals from a place where a child
resides if it's not that person's child?
SENATOR BALBONI: Madam
President, through you, because it avoids the
problems attendant to proving intent. In
other words, the individual who is not the
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custodial parent could say "I had no idea
there were children in the house."
Whereas if you are in fact the
custodial parent, it's very hard to prove that
you don't know your own children have in fact
resided in the home.
SENATOR SCHNEIDERMAN: Through
you, Madam President, I think that drug
dealers, I think, tend to have a good deal of
knowledge about where their -- the locations
in which they're dealing drugs. And my
experience is that most law enforcement is not
directed against someone who is a casual
dealer of -- you know, here and there, but
it's a more substantial operation. And in my
experience, the dealers know pretty well who
is a resident.
If we're talking about children
being a resident, I'm just concerned that by
leaving that out, you open up the possibility
that a drug dealer could just go to someone
else's house where they know children live and
deal there without being subject to this. And
it almost sort of penalizes the actual parent
more than it does the people who tend to -
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and I've encountered this quite a bit. People
who go to places where there are other
children take advantage of the parents,
sometimes the parents have drug problems
themselves, and deal out of that place which
is even safer for them, because it's not their
home.
So I would urge you that that
perhaps should be a consideration.
SENATOR BALBONI: I'll certainly
consider it.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. Thank you for this fine
statewide approach to this problem.
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. If the Senator will
yield to a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Hassell-Thompson.
654
SENATOR HASSELL-THOMPSON: Thank
you.
My question has probably to do more
with the Penal Law. Does this, in fact, by
amending this, does the existing Penal Law -
you have not added criminal activities to
this. So obviously the Penal Law that is
being amended, this will be added to that
section of the Penal Law. And whatever
penalties that are currently on the books for
that particular level of crime, would that
persist or would that change? That's what I'm
not clear about.
SENATOR BALBONI: Madam
President, through you. The bill does
principally two things. The first is it would
create a new crime of unlawfully dealing with
a child in the first degree, as it relates to
the sale of drugs in a residence. In fact,
right now that is currently not a crime.
And, secondly, it would increase
the penalty. It would make it a felony.
So that's essentially the two-prong
attack.
SENATOR HASSELL-THOMPSON: Madam
655
President, through you, if the Senator will
yield again.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: I'll continue
to yield.
THE PRESIDENT: You may proceed.
SENATOR HASSELL-THOMPSON: If it
then is a new crime, what is the penalty that
is being proposed for this new crime?
SENATOR BALBONI: It would be a
felony, Your Honor. I mean -- Your Honor.
See that? I feel like I'm back in court.
It would be a felony, an E felony.
SENATOR HASSELL-THOMPSON: With
the potential minimum sentencing?
SENATOR BALBONI: I'm sorry, I
don't have the sentencing guidelines in front
of me, and I would hate to be wrong on that.
SENATOR HASSELL-THOMPSON: Okay,
that was my question. So that whatever the
minimum sentence is for this particular penal
law would then be imposed?
SENATOR BALBONI: Senator
Dollinger has provided me with the
656
information, so if he's wrong, it's his fault.
One to four years.
SENATOR HASSELL-THOMPSON: Thank
you. That's my question.
THE PRESIDENT: Read the last
section.
Senator Dollinger.
SENATOR DOLLINGER: Madam
President, just if Senator Balboni will yield
to one quick question.
THE PRESIDENT: Senator, will you
yield?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Just so I
understand the impact of this bill, what is
the current penalty for possession of the
lowest-level controlled substance?
SENATOR BALBONI: It's an A
misdemeanor, upon advice of counsel.
SENATOR DOLLINGER: And again,
through you, Madam President, if Senator
Balboni will continue to yield.
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THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: So as I
understand it, we're simply jumping it from an
A misdemeanor if it occurs in the house to an
E felony, we're moving it only up one grade;
is that correct?
SENATOR BALBONI: Yes, that is
correct. Upon advice of Senator Volker. I'm
getting a lot of help today.
SENATOR DOLLINGER: Okay. My
only question and my only concern is, is there
any possibility that there could be either
violations, possession of marijuana or B
misdemeanors, in which we would be jumping
this two grades or potentially three grades of
crime simply because it occurs in the house in
which a custodial child resides? That's my
question.
I mean, I agree -- and I voted for
this bill before. I'm just trying to focus on
whether -- if the effect of this is to jump it
one grade from an A misdemeanor with penalties
658
less than a year to a year and more, I
understand how that affects the process. But
are we running the risk that we're jumping a
violation into a felony simply because of the
location in which the drug dealing occurs?
SENATOR BALBONI: Madam
President, through you. Senator Dollinger
raises an important aspect of this. And for
purposes of the legislative intent, should
this bill become a chapter, it is my intent as
sponsor that this bill only apply to crimes
where there is a jump of one step.
However, as I read the bill -- and
I'm not sure of the way that you could draft
this differently -- I think it might be a
possibility where you could have a substance
such as marijuana that possibly could be
jumped up.
But for purposes of the legislative
intent, as espoused by the sponsor, it's only
meant to apply to the category one jump.
SENATOR DOLLINGER: Thank you,
Madam President. Just briefly on the bill.
I appreciate Senator Balboni, who
I'm sure through not only his legal work but
659
his legal work in his numerous Law Review
articles, which I've read and I think are
topnotch jobs, he understands the importance
of giving some direction to a court about what
the sponsor's intention is.
And I agree with him, if the goal
is to elevate what would otherwise be a
misdemeanor to a felony because of where it
occurs, that is consistent with the tradition
that we have done both in this Legislature and
in this house with respect to the sale or
possession of drugs on school grounds, the
sale or possession of firearms on school
grounds, in the vicinity of a church, where we
have taken the locale of a particular criminal
activity and elevated the consequences to
those who violate the law in those particular
geographic areas.
And I also appreciate his
clarification because I think that the notion
that you could take a violation that occurs in
a home where a custodial child resides and
jump it to a felony would be uncharacteristic
with what we have done, which is to
significantly elevate the degree of criminal
660
consequences solely because of the location.
So I appreciate Senator Balboni's
qualification, and I actually hope that
someday not only does this bill become law but
that some enlightened court looks back and
says, The sponsor said it was only meant to
apply in instances in which we were elevating
Class A misdemeanor conduct into that of a
felony.
Thank you, Madam President. I'll
be voting in the affirmative.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 4. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 37 are
Senators Hassell-Thompson, Montgomery, and
Schneiderman. Ayes, 57. Nays, 3.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
661
51, by Senator Saland, Senate Print 394, an
act to amend the Social Services Law, in
relation to allowing regional state park
police.
SENATOR DOLLINGER: May we have
an explanation, please.
THE PRESIDENT: Senator Saland,
an explanation has been requested.
SENATOR SKELOS: Lay it aside for
the day, please.
THE PRESIDENT: The bill is laid
aside for the day.
THE SECRETARY: Calendar Number
54, by Senator Skelos, Senate Print 421, an
act to amend the Domestic Relations Law, in
relation to parents or other persons.
SENATOR DOLLINGER: May we have
an explanation of that, please.
THE PRESIDENT: Senator Skelos,
an explanation has been requested.
SENATOR SKELOS: Madam President,
this legislation was passed in the year 2000,
60 to zip. It will eliminate the need for the
consent of a parent to the adoption of his or
her child where such parent has previously
662
consented in writing to the other parent's
surrender of the child or to the adoption of a
child.
Basically, it puts back in the
statute language that was taken out in 1997 by
legislation passed by Senator Saland. And
Senator Saland is supportive of this language
being reintroduced to the chapter.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Through you,
Madam President, if the sponsor will just
yield to a couple of quick questions. Or just
to one; I'll go at him in sequence.
SENATOR SKELOS: Yes, Madam
President, I would yield.
THE PRESIDENT: You may proceed,
Senator.
SENATOR DOLLINGER: Senator, you
describe the legislation that Senator Saland
passed in 1997. And my question is, does this
bill arise because of complications that arose
out of that statute? Could you just describe
the particular circumstances? Was there a
history of situations where this particular
663
legislation would be a problem?
SENATOR SKELOS: Yeah, there are
situations where there is a putative father
who is perhaps with the birth mother for a
period of time and then disappears. That
makes it very difficult to finalize the
adoption when you cannot locate that
individual.
And what this would allow is that
he could consent to the adoption, as it says
at the bottom of the legislation, "in the
manner required to permit the recording of a
deed." And that would be sufficient to go
forward with the adoption if he is not present
at the time it would be finalized.
SENATOR DOLLINGER: Through you,
Madam President, if Senator Skelos will
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Again, I note
664
that, as oftentimes we do in the printing of
these bills, you've taken the actual section,
the subparagraph that you're amending, and
added your new language.
My question is, is there anything
that requires a tie in time between the time
that the execution occurs and the time that
the adoption occurs?
And the reason why I ask this
question -- through you, Madam President -- is
because I know, as Senator Skelos appreciates
and is probably well familiar with, there can
be a significant passage of time between the
execution of the consent and the actual
release of the child or surrender of the child
for adoption.
Is there any provision that
requires some temporal relationship between
the consent, the signing of the consent and
the actual adoption?
SENATOR SKELOS: The consent
could be signed during the pregnancy. And
certainly it would be effective for use to
finalize the adoption. So you're dealing with
essentially nine months, then the child would
665
be born, and for whatever period of time it
takes to finalize the adoption.
SENATOR DOLLINGER: Again through
you, Madam President. If the child -- if the
consent is signed either on or about the time
of the child's birth, is it effective forever
during the period of the child's minority
status?
I mean, if I gave the consent today
and my child were ten years old and the mother
agreed to surrender the child for adoption at
that point, would that still be -
SENATOR SKELOS: In most of these
cases, the adoption is finalized pretty much
after the birth of the child. So that consent
would be good, and it would be irrevocable.
SENATOR DOLLINGER: Okay.
Through you, Madam President, if the sponsor
will continue to yield for one more question.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Just looking
666
again at the language that you've inserted, is
it your intention, as I asked Senator Balboni
about his intention, that the consent shall be
irrevocable, it shall not be just irrevocable
denying the paternity of the child, but the
consent itself shall be irrevocable?
SENATOR SKELOS: The consent
shall be irrevocable.
SENATOR DOLLINGER: Okay.
Through you, Madam President, on the bill.
THE PRESIDENT: You may proceed.
SENATOR DOLLINGER: In 1997 I
think I was one of those who loudly praised
Senator Saland's bill and law which eventually
became a chapter which implemented changes at
the federal level regarding the renewed
emphasis upon adoption as an alternative for
children who were being placed in foster care.
And that what we were attempting to do was to
accelerate the process by which children who
are under the administration of the state and
oftentimes placed in foster care are quickly
made available for adoption.
While I appreciate Senator Skelos's
description of a circumstance in which the
667
consent would be operable, I'm concerned about
the situation in which a child is born, the
child resides for a period of time with a
custodial parent, the other parent has
abandoned the child or has left, and it may be
four or five years before the child is
actually offered for adoption -- family
circumstances have changed, something else has
occurred, the child has been placed in foster
care.
And that's why I raised the
question to Senator Skelos about the passage
of time, is it irrevocable for a certain
period of time. I know that in Monroe County,
in our Family Court, the question of
terminating parental rights, which is
something we discussed back in 1997 -- but in
our Family Court, the question of terminating
parental rights has become a huge and
complicated issue.
And while I appreciate what Senator
Skelos is going to do, and I'm going to vote
in favor of it, I think we should go back and
look again at what Senator Saland did in 1997.
Because in 1997, largely pushed by Washington,
668
we abandoned our fifty-year commitment to try
to keep families together in favor of
accelerating the process by which parents
could consent to release of their children.
And I think that that issue, which
Senator Skelos has brought to the fore again
by dealing with the consent provisions, comes
back on the table.
And I would just suggest that while
this is a bill that I'm going to vote in favor
of because I think it does meet its goal, I
would suggest that we go back and look at the
termination of parental rights in the overall
context of what we did for fifty years. We
slightly changed it three years ago, and
Senator Skelos's bill underlies the fact that
we may have to go back and look at that change
again to make sure that New York is doing
everything it can to preserve families and to
keep as many families together.
And therefore, even the question of
how long the consent for an adoption or for
the surrender of a child, how long it's going
to be good for -- I understand it may be
difficult to go back and get an absent parent
669
to consent to the release of their child, but
I would suggest that there can be benefits to
families for doing that and there can also be
benefits to the government, because it may be
an opportune time to go back and see if we can
find the father or the mother to fulfill their
child support obligations.
So I think this touches on a very
complicated issue. I'm going to vote in favor
of it. But I would urge both Senator Skelos,
Senator Saland and those who are interested in
the whole relationship between our laws for
adoptions, the laws that we were told we had
to pass to comply with our federal government
and draw down our foster care money, I would
suggest that we go back and look at that
again.
Because this issue of whether New
York supports families or whether we want to
provide tools by which they can be more
quickly divided or put asunder I think is
something we should reexamine one more time.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: If the sponsor
would yield, Madam President.
670
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes, Madam
President.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you.
Under this bill, would the birth
father at any point have to sign something
that says that they would allow the child to
be put up for adoption, either -
SENATOR SKELOS: I answered that
question earlier. And the -- it would require
him to sign it in a form that would permit the
recording of a deed. So it's a document that
would be equivalent -- acknowledged as a deed
would be.
SENATOR DUANE: And through you,
Madam President, that would be before the
birth?
SENATOR SKELOS: Before the
birth.
SENATOR DUANE: And through you,
Madam President, if the sponsor would continue
to yield.
671
SENATOR SKELOS: Yeah, it could
be after the birth also, Senator Duane.
SENATOR DUANE: So through you,
Madam President, it could be at any time the
birth father could sign the deed.
And the way -- without this
legislation, what happens is that the birth
father has to sign something a second time?
SENATOR SKELOS: No.
SENATOR DUANE: How is it
presently? I'm sorry I'm confused about this,
but I -- what is this bill changing, then?
SENATOR SKELOS: This legislation
basically, Senator Duane, will cover the
situation where the birth parent, the birth
father, disappears prior to the adoption being
finalized but yet at some point gave the
mother a document that says "I consent to my
child being placed up for adoption if you so
desire."
SENATOR DUANE: Through you,
Madam President. Now the birth father has to
sign sort of at the completion of the adoption
process as well?
SENATOR SKELOS: This situation
672
would be where the birth father then
disappears. This document could be used to
finalize the adoption in the courts.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: Go ahead, Senator
Duane.
SENATOR DUANE: I noticed in the
description in the memo in support it says
that the birth father indicates that he has no
desire to undertake support, et cetera.
I'm wondering who makes the -
would a Family Court judge have to make the
determination that the birth father is not
interested in providing support? Or is it
automatically assumed that the birth father
doesn't want to support the child anymore?
SENATOR SKELOS: Essentially what
would happen here, Senator Duane, is the birth
mother would get a form from an attorney, get
it signed, and then she would have it to go -
673
in the event he disappears and is not around
when the adoption is sought to be finalized.
SENATOR DUANE: Then through you,
Madam President, if the sponsor would continue
to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR SKELOS: Yes.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Then a Family
Court judge isn't the one that would actually
say "I agree, the birth father has
disappeared"? In other words, there's an
assumption made when the birth mother, for
instance, presents this document that the
birth father has disappeared?
SENATOR SKELOS: There's an
assumption that he's disappeared?
SENATOR DUANE: If the birth
mother presents -
SENATOR SKELOS: He's given her
his irrevocable consent.
SENATOR DUANE: Through you,
Madam President, if the sponsor would continue
674
to yield.
Then the way it is today, without
this, is that even though the birth mother had
a signed consent form that said the father
didn't want to participate in the support of
the child, that the father then always had to
sign another document saying that they
continue to say that and that they wanted to
put the child up for adoption, they consented
to putting the child up for adoption?
SENATOR SKELOS: What would
happen to a father today if you can't find
them?
SENATOR DUANE: Without this
legislation.
SENATOR SKELOS: I believe you
have to go through publication in the
newspapers, that there's some process that's
set up to do this. And it's very, very costly
and, quite honestly, not totally reliable.
SENATOR DUANE: Okay. So through
you, Madam President, then the original
document that's signed earlier on says that
the father doesn't want to support the child,
the document that would no longer be needed is
675
the document which actually says "and I agree
with the adoption," so the original "I'm not
going to support the child" document would now
also convey that the father was willing to put
the child up for the purpose of adoption?
In other words, the original
document would now serve two purposes; is that
correct?
SENATOR SKELOS: The document
that he has signed -
SENATOR DUANE: That he is not
going to support the child anymore would now
serve two purposes -- one, that he doesn't
want to support them, and also that he's
willing to put the child up for adoption.
SENATOR SKELOS: I guess it could
be interpreted that way. It really has to do
with the consent to an adoption.
SENATOR DUANE: Thank you, Madam
President. Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
676
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 54 are
Senators Brown and Duane. Ayes, 58. Nays, 2.
SENATOR DUANE: To explain my
vote, Madam President.
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: You know, I'm
torn about this. But I just think that we
need to have a judge step in to agree that the
father, in addition to saying that they're not
going to pay support, has also said that they
don't wish -- that they -- that it's all right
with them to put the child up for adoption,
and that a judge needs to make the
determination that that kind of an abandonment
has taken place.
THE PRESIDENT: Senator Duane,
you will be recorded as voting in the negative
on this bill.
The bill is passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could return to reports of standing
677
committees, I believe there's a report of the
Finance Committee at the desk.
THE PRESIDENT: Reports of
standing committees.
The Secretary will read.
THE SECRETARY: Senator Stafford,
from the Committee on Finance, reports the
following nominations:
As a member of the Workers'
Compensation Board, Frances M. Libous, of
Binghamton.
THE PRESIDENT: Senator Johnson.
SENATOR JOHNSON: Yes, Madam
President. I'd like to yield to the Chairman
of Labor, Senator Spano.
THE PRESIDENT: Senator Spano.
SENATOR SPANO: Thank you,
Senator Johnson.
Madam President, it's my pleasure
to stand in support of the Governor's
nomination to the Workers' Compensation Board.
Over these last number of years that I have
chaired the Labor Committee, we've certainly
heard a lot from injured workers across the
state, from attorneys who represent injured
678
workers and claimants across the state, as
well as from the insurance companies about
problems within the Workers' Compensation
Board in terms of backlogs, delays, the
administration of the board, and moving
forward with proper judgments with regard to
injured workers in the future.
Today's nomination from the
Governor gives us a person who has outstanding
experience in each of those areas, having been
trained as a public health nurse for over a
decade, working in the health care industry,
nursing homes, has the valuable health care
education and background to make
determinations with regard to injured workers
in this state.
And the Governor's nominee has
served as the district administrator for
workers' compensation in an area where she has
improved the delivery of services for the
people in the Southern Tier, has made sure
that the paperwork and the backlogs were
caught up and that those 65 employees that
were under her jurisdiction were working in an
efficient and in a compassionate way towards
679
the injured workers.
So I have certainly known Fran
Libous for a long time, and so on a personal
note it's my extreme pleasure to stand here
and to second her nomination -- but to second
her nomination not because she is Fran Libous,
but because she is a person who has dedicated
her career to helping injured workers and
people in the health care field, to a person
who has got the credentials in the
administration of the board, as well as making
determinations in a compassionate way for
people who need help and care who have been
injured in this state.
So Governor Pataki once again has
demonstrated his commitment to injured workers
by recommending the appointment of Fran Libous
as a member of the Workers' Compensation
Board. And I'm very happy and proud to
second -- offer her nomination to the members
of the Senate today.
THE PRESIDENT: Senator Wright.
SENATOR WRIGHT: Thank you, Madam
President. I join my colleague in seconding
the nomination and congratulating the Governor
680
on putting forth Fran Libous as the nominee.
I think when one takes a look at
the background of this candidate you find, as
my colleague, Senator Spano, has pointed out,
not only a background in health care, both as
a direct care provider and in administration,
one who has worked within the field of
compensation, administering that at the
district and regional level, but one who has
also served as a community leader.
When you pull those attributes
together of having served the community,
having a knowledge of the health care arena
and having a working knowledge of
compensation, it's that combination of
knowledge, skills, and ability that she
uniquely brings to this position.
And for that, she is to be
commended for her diligence in acquiring that
unique combination, and the Governor is to be
commended for selecting and recommending her
to the board. Because that unique combination
of credentials will help her provide the
balanced, reasoned decisions that are
essential in terms of meeting the needs of
681
injured workers as well as the balance
necessary to meet the needs of the business
community.
I too have known Fran for a number
of years, so it's also from a personal
perspective that we're very pleased to see her
in the chamber today -- in a different
capacity than she's been to this chamber
before, but as the Governor's nominee and one
I'm sure who will prove to be a great
appointment to the Workers' Comp Board.
So, Fran, congratulations. I look
forward to joining my colleagues in providing
an affirmative vote this morning. Best
wishes.
THE PRESIDENT: Senator Maziarz.
SENATOR MAZIARZ: Thank you,
Madam President.
I too rise in support of Governor
Pataki's nomination of Fran Libous. Fran has
an extensive background. And I know that from
having worked many times with the regional
offices on workers' comp that I think one of
the most organized and certainly the office
that serves its clients with a great deal of
682
dignity and respect is the Binghamton office,
where Fran has led that office now for several
years.
And I think her qualifications as a
health care worker certainly will lend well to
the Workers' Compensation Board.
But on a more personal note, I want
to tell you something about Fran Libous that I
think probably very few people in this chamber
know. Fran Libous is a hero. I was a witness
one time in a very public place when an
individual, a middle-aged man, had a very
severe heart attack. And it was quite a
distance from us, and Fran went over there and
a lot of people -- there was a lot of
commotion and people screaming, and a lot of
people lost their composure.
And Fran went over there and
immediately started to administer CPR to this
individual. And he is alive today because of
the work that Fran did on him. In front of, I
might add, his two very young children.
So that's a side of Fran Libous
that I think not very many people know. She's
a caring person, and really what we need when
683
it comes to dealing with individuals that are
going through the workers' comp system are
caring people.
So, Madam President, I rise in
support of this nomination. Thank you.
THE PRESIDENT: Senator Meier.
SENATOR MEIER: Thank you, Madam
President.
The Secretary announced the
nomination as Frances Libous of Binghamton. I
would like to point out for the record that
this is Frances Pianella Libous of Oriskany,
New York, in the county of Oneida, in my
district.
I don't know why Frances moved to
Binghamton. But we do know -- we do know that
a good part of the common sense, the
dedication, the compassion, and the energy
that caused the Governor to nominate her comes
from her hometown.
God bless you, Frances. Good luck.
THE PRESIDENT: Senator Lack.
SENATOR LACK: Thank you, Madam
President.
You know, the concept of modern
684
workers' compensation comes from Bismarck, and
the Bismarckian principle was one of creating
a bureaucracy so that people who worked within
it could provide aid and comfort to those who
couldn't work on the outside, to try to get
them back to the job as soon as possible.
Unfortunately, prior to Governor
Pataki that Bismarckian concept of how to run
a workmen's compensation system had certainly
changed in this state. With one exception,
under Governor Cuomo we took people from
outside the system and put them in to try to
run the workers' comp system.
When Governor Pataki came along, he
took Bob Snashall, who is an expert in
workers' comp, and put him in charge of
workers' comp, and people like Fran Libous
went to work within the workers' comp system.
And we revived something now with
the Governor's very good appointment of Fran
Libous that we haven't seen since Governor
Rockefeller, and that is a governor of this
state going within the Workers' Compensation
Board, taking people who have worked within
that system, know how the system works, and
685
putting them as members of the Workers' Comp
Board to make it even more efficient. Fran
Libous is just that type of person.
So my congratulations to the
Governor, my congratulations to Fran for the
hard work she has done over the years in
workers' compensation, and my congratulations
to all the people of the state, because now we
will have, as much as we have since Governor
Pataki first came to office, a modern,
efficient, well-working worker's compensation
system.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, I too rise to join my colleagues in
seconding the nomination of Fran Libous.
I met with her at the prior travel
to Italy, and thank God we didn't need her
services in any workers' comp cases over
there.
But I have gone through her
background; it's so extensive. And I really
want to commend the Governor on this wonderful
nomination, with her expertise in workers'
comp.
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And again, I ask her to assist me
in enabling some further legislation regarding
raising the welfare benefits of our past
disabled workers in this state who have not
gotten an increase since 1966 or earlier.
And again, I want to commend the
Governor, and I join my colleagues in
congratulating him on this wonderful
nomination.
THE PRESIDENT: Senator Libous.
SENATOR LIBOUS: Madam President,
I stand before this body with great personal
pride. And it's because of that great
personal pride, pursuant to Senate Rule IX,
Section 1, I ask that I may be excused from
voting on this nominee.
THE PRESIDENT: Without
objection, Senator Libous, you are excused
from voting on this confirmation.
SENATOR ONORATO: Is that a no
vote?
(Laughter.)
THE PRESIDENT: The question now
is on the confirmation of Frances M. Libous of
Binghamton to an appointment as a member of
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the Workers' Compensation Board for a term to
expire December 31, 2007. All in favor
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: Frances M. Libous
is hereby confirmed.
And as President of the Senate, I
congratulate you and wish you the very best to
continue your fine work with the Workers'
Compensation Board.
(Applause.)
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: As members of the
Port of Oswego Authority, David W. Buske, of
Oswego, and Pamela Caraccioli, of Oswego.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Move the
nomination.
THE PRESIDENT: The question is
on the nomination of David W. Buske, of
Oswego, as a member of the Port of Oswego
Authority, for a term to expire September 1,
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2002, and Pamela Caraccioli, of Oswego, as a
member of the Port of Oswego Authority, for a
term to expire September 1, 2004. All in
favor signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominees are
hereby confirmed.
The Secretary will read.
THE SECRETARY: As a member of
the Public Health Council, Susan G. Regan, of
New York City.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Move the
nomination.
THE PRESIDENT: The question is
on the nomination of Susan G. Regan, of New
York City, as a member of the Public Health
Council, for a term to expire April 19, 2006.
All in favor signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
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hereby confirmed.
The Secretary will read.
THE SECRETARY: As a member of
the Board of Visitors of the Finger Lakes
Developmental Disabilities Services Office,
Quentin J. Masolotte, of Dansville.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Move
confirmation.
THE PRESIDENT: The question is
on the nomination of Quentin J. Masolotte, of
Dansville, as a member of the Board of
Visitors of the Finger Lakes Developmental
Disabilities Services Office, for a term to
expire December 31, 2002. All in favor
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The nominee is
hereby confirmed.
Senator Skelos.
SENATOR SKELOS: Madam President,
with the consent of the Minority, if we could
return to the calendar, Calendar Number 33, by
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Senator Goodman.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
33, by Senator Goodman, Senate Print 700, an
act to amend the Penal Law, in relation to
consecutive terms of imprisonment.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Senator
Montgomery. To explain your vote, Senator?
SENATOR MONTGOMERY: No.
THE PRESIDENT: The Secretary
will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59. Nays,
1. Senator Montgomery recorded in the
negative.
THE PRESIDENT: The bill is
passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
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if we could return to motions and resolutions
and adopt the Resolution Calendar in its
entirety, with the exception of Resolution
374.
THE PRESIDENT: Motions and
resolutions.
All those in favor of adopting the
Resolution Calendar, with the exception of
Resolution 374, signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
may we please take up Resolution 374, by
Senator Nozzolio, have the title read, and
move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Nozzolio, Legislative Resolution Number 374,
memorializing Governor George E. Pataki to
proclaim March 10, 2001, as "Harriet Tubman
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Day" in New York State.
THE PRESIDENT: All in favor
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
Senator Nozzolio has consented to opening up
the resolution for sponsorship.
So why don't we put everybody on
the resolution. And if anybody wishes not to
be on it, they should notify the desk.
THE PRESIDENT: All those members
who wish not to be included on this resolution
please notify the desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
also, on Resolution 372, by Senator Sampson,
Senator Sampson has consented to the
resolution being opened for sponsorship. It
memorializes the Governor to proclaim March 2,
2001, as "Read Across America Day" in the
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State of New York.
So if anybody wishes not to be on
the resolution, they should notify the desk.
THE PRESIDENT: All members who
do not wish to be included on Resolution 372,
please notify the desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
is there any housekeeping at the desk?
THE PRESIDENT: No, there is not,
Senator Skelos.
SENATOR SKELOS: Madam President,
if you'd recognize Senator Dollinger.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
Yesterday I gave notice of a motion
to amend the rules with respect to joint
conference committees. And I'd ask that I be
permitted to speak on that proposed amendment
at this time.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
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Madam President.
This may be, at least in my
judgment, the most important rule change that
we've advanced in this house during the course
of the last week.
As I'm sure everybody is familiar,
we had a discussion about rules changes that
would have taken the semiannual accounting of
the Senate and made it into a permanent rule
that would have facilitated public
understanding of how we spend the $85 million
to $90 million of the public's money.
Then we did a series of rules that
dealt with video broadcasting. We talked
about where we would put the cameras and
creating the position of official
videographer, and then of course requiring
that the sessions be broadcast.
But today we voyage into a new
territory that I believe is, although perhaps
procedural in nature, is nonetheless more
significant than any other. And that is to
amend Joint Rule Number II by striking it and
replacing it with a new joint rule relating to
the creation of a Standing Committee on
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Conference.
This committee would consist of
five members of each house appointed by the
Speaker and the Majority Leader. That's a
critical aspect of the proposed rule, because
there are those who have suggested that
creating joint conference committees would
somehow dilute the power of leadership in
either this house or in the other house.
I would suggest that if the Speaker
in the Assembly and the Majority Leader in the
Senate have the ability to appoint the members
of the conference committee, that actually
facilitates that role and function of the
leader of each house having the ability to
control, to some extent, consistent with the
mission of both houses or the majority in both
houses, to provide direction to the Joint
Committee on Conference.
The legislative minorities, as
again is consistent with our practice in this
Legislature, would be guaranteed at least one
appointment on the joint committee, the
Standing Committee on Conference.
The critical aspect of this
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proposed rule change is that it would set -
the Standing Committee on Conference would
have guidelines for reviewing what is referred
to in the rule as substantially similar
legislation that has passed both houses. And
they could do that under four sets of
circumstances, four specific circumstances.
It could either be done at the
request of both legislative leaders -- for
example, yesterday we passed a bill that gives
the City of New York the ability to remove a
portion of the sales tax on home heating oil,
natural gas, and in some cases steam-generated
heat. That was done by Senator Goodman at the
request of the mayor of the City of New York
because of the substantial increase in the
cost of home heating oil and other types of
fuels to heat homes. Under those
circumstances, we passed that bill.
It however is not the same bill
that is sponsored by the Speaker of the
Assembly and the Chairman of the Ways and
Means Committee, Mr. Farrell. So we have two
bills, each of which has passed the house.
And to my knowledge, at this point there has
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been no declaration under the current Rule II,
Joint Rule II, that there will be a conference
committee to iron out the differences between
those two bills.
What this proposed amendment to our
rules would provide is that the legislative
leadership, Senator Bruno and Assemblyman
Silver, could sit down and say, We want to
refer this bill to the joint Standing
Committee on Conference.
In addition, it would also give the
power -- and to this extent, this bill does
usher in a new era of thinking in this
legislature, but not a new era of thinking in
the history of other legislative branches in
this nation. And that is this would also give
the sponsors of each bill in each house the
ability to require that the Joint Committee on
Conference review the two pieces of
legislation.
Third, it would provide that the
chairs of the committees in which the bills
originate -- in Senator Goodman's case, I
believe his bill originated in Senator
Goodman's committee on Corporations and
698
Authorities or Local Government or Cities.
Whichever committee in which the bill
originates, that chair, both in this house and
in the other house, would have the ability to
demand and insist that their version of the
joint bill go to the Standing Committee on
Conference.
And the last way to do it would be
to allow the nonpartisan council appointed by
the commissioners of the Legislative Bill
Drafting Commission to make that referral.
So there are four paths by which
bills, one-house bills, would be referred to a
joint Standing Committee on Conference.
The reason why we have included,
Madam President, the provision with respect to
the nonpartisan council of the Legislative
Bill Drafting Commission is because we're
trying to set up a situation in which bills,
similar bills, roughly comparable bills pass
both houses, and they are referred to the
council for an evaluation of whether they are
sufficiently similar to be worthy of referral
to a joint conference committee.
In addition, the bill provides
699
that -- and what I hope will happen is that a
tradition of making decisions about the
comparability of bills -- if you will, the
common law of evaluations of comparability -
would be made by the Legislative Bill Drafting
Council, and we'd be in a position where we
would establish over time a test or a series
of tests to evaluate roughly comparable bills.
This Standing Committee on
Conference, once a bill had been referred to
it, would have 10 days to meet after the
referral and 15 days from the date of referral
to issue a report. That report would be
delivered back to both houses of the
Legislature in an attempt to iron out the
differences between these two bills.
Also, the rule also provides that
the Standing Committee on Conference would
have to file with the Secretary of the Senate
and the Clerk of the Assembly either a bill
approved by a majority of the conference
committee -- in other words, a mandatory
referral back to the house of origination of a
bill which had the ironed-out text of a bill
acceptable to the Joint Conference Committee
700
for debate, referral, and vote by both houses.
It would also provide that the
report of the Joint Conference Committee, if
favorable, would immediately go to third
reading in both houses so that it could be
accelerated.
Madam President, this proposal
actually has evolved from an informal
governmental exercise between some of the
members of this house and members of the
Assembly. This proposal was originally
suggested by Assemblywoman Sandra Galef, in
the other house, from Westchester County.
She and I held a series of meetings
of members of both houses, informal meetings,
in an attempt to draft and iron out a bill
that would establish a protocol for ideally
eliminating what I believe is the scourge of
both houses, and that is the famed, notorious,
long-standing, often voted on, never becomes
law one-house bill, which seems to occupy an
enormous amount of this Legislature's time.
I don't think it's any coincidence
that so often in January, February, and
through the middle of March, and then through
701
late April, May, and halfway through June, we
do bills that have legislative histories that
are longer than my career in the Senate. It's
always fascinating to be asked to vote on a
bill for the seventh or eighth time and look
back at the legislative history and realize
that it's been before this house since 1985.
I wasn't even involved in government. I
barely had a law degree at that time.
But what happens is these bills
traditionally pass one of the two houses, are
never heard from again, or oftentimes a bill
will be passed out of the Codes Committee that
looks something like a bill passed by the
Assembly, and those two bills never get a
chance to be married into law.
There are -- and I appreciate all
the work of the chairs on the other side of
the aisle who get together and try to marry
these one-house bills together through
negotiations with their counterparts in the
Assembly. But for some reason, only a handful
of them seem to make the acceptable drafting
changes in order to become a uni-bill, to
become a single bill that eventually becomes
702
law.
So this joint Standing Committee on
Conference would set up a protocol in which
those one-house bills, either through the
sponsor or through the chair or at the
direction of the legislative leadership, would
be sent off to a permanent negotiation process
between the two houses.
This is patterned after a process
that is most familiar to everyone in political
life, and really devolves from the procedure
used in the United States Congress, that
there's a Standing Committee on Conference on
Health, that bills that pass the United States
Senate and pass the House are automatically
referred to conference committee. It
accelerates the process of negotiating
differences between the two houses. And if
you look at the Congressional Record, bills
that pass the Senate and the House are never
cursed with the identification of the
one-house bill.
There are times when the conference
committee may not be able to resolve
differences between one-house versions. I
703
acknowledge that. And if so, the Standing
Committee on Conference would issue a negative
report that they hadn't been able to reach
agreement.
But in the experience of the United
States Congress, most of that negotiation
starts before the bill leaves the house in the
first instance. And it's oftentimes only a
matter of detail that is resolved in the
Standing Committee on Conference.
I would suggest that if we did that
here, Madam President, the goal that Senator
Bruno articulated of increasing the efficiency
of the house and providing for the economy of
the house -- which was the goal of the rules
set that was passed by the Majority of this
house over the objection of my Democratic
colleagues last week -- if that's our goal,
this amendment is the best way to get to that
goal.
Because the bills that we've passed
thus far, whether it's Senator Marcellino's
bill on eliminating the regulation of natural
gas in certain instances -- if that bill needs
negotiation with the other house, that
704
negotiation could occur in a Standing
Committee on Conference. The bill, at either
Senator Marcellino's request or I believe he's
also the sponsor as well as the chair, he
would have control over that bill, he could
send it to the house.
Or even if that was not his bill,
if he determined that that bill was
sufficiently similar to another bill, he could
ask for the intervention of the nonpartisan
council at the Bill Drafting Commission to try
to get the process of negotiation going.
I know that a lot of our work seems
to involve these dreaded one-house bills, and
we seem to pass them year after year after
year. We reach a point where we've asked all
the questions, exhausted all the issues, and
we still pass these bills.
I would suggest that by enacting
this rule, which we could do as the Senate -
we could pass this rule, we could send it over
to the Assembly. It's a joint rule, it
requires concurrence of both houses in order
to become incorporated in our rules. But let
the Senate set the standard. Let's convince
705
the other house that our form of economy is
the best way to go.
I couldn't believe more that this
is the change that will bring about a
fundamental economy and efficiency in the
Senate that all the other rules, all the other
rules which we've characterized as stifling
debate, which the Majority has suggested are
designed to produce economy and efficiency -
I would suggest that this is the rule that
will get us to the goal of a more efficient
Legislature, of a Legislature that
contemplates, goes out and examines other
opinions, devises legislation that solves the
problems of this state or that the Majority of
this house believes will solve those problems,
and then we will facilitate negotiations with
our counterparts in the Assembly. We will
make more laws and less work. That's what
this is all about.
I strongly urge that this joint
rule, which strikes the current Joint Rule
Number I and substitutes the new joint rule,
that this be adopted by the house in the
furtherance of economy and in the best
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interests of the people of this state.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
SENATOR PATERSON: Party vote in
the affirmative.
SENATOR SKELOS: Party vote in
the negative.
THE PRESIDENT: The Secretary
will call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 24. Nays,
36. Party vote.
THE PRESIDENT: The resolution is
defeated.
Senator Skelos.
SENATOR SKELOS: Madam President,
there being no further business, I move we
adjourn until Monday, February 12th, at
3:00 p.m., intervening days being legislative
days.
THE PRESIDENT: On motion, the
Senate stands adjourned until Monday,
February 12, 3:00 p.m., intervening days being
legislative days.
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(Whereupon, at 12:26 p.m., the
Senate adjourned.)