Regular Session - February 13, 2001
816
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
February 13, 2001
11:05 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: In the absence of
clergy, could we each bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, February 12, the Senate met pursuant
to adjournment. The Journal of Friday,
February 9, 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.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Madam President.
On behalf of Senator Velella,
please place a sponsor star on Calendar Number
71.
THE PRESIDENT: So ordered.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Madam President.
I hereby give 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 ethical standards for members,
officers, and employees of the Senate.
THE PRESIDENT: The notice has
been received, Senator, and it will be printed
in the Journal.
SENATOR DOLLINGER: Thank you.
819
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
may we please adopt the Resolution Calendar,
with the exceptions of Resolutions 442 and
443.
THE PRESIDENT: All in favor of
adopting the Resolution Calendar, with the
exception of Resolutions 442 and 443, 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 442, by
Senator Morahan, have the title read, and move
for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Morahan, Legislative Resolution Number 442,
memorializing Governor George E. Pataki to
proclaim February 11 through 17, 2001, as
820
"Salute to Hospitalized Veterans Week" in the
State of New York.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: Senator Morahan.
SENATOR MORAHAN: Yes, Madam
President. I'd like to open that resolution
to all members of the Senate, those who would
care to be on it, and would they please notify
the desk if they care not to.
Thank you.
THE PRESIDENT: Senator Skelos,
is that agreeable to you?
SENATOR SKELOS: Yes. Put
everybody on the resolution. Anybody that
does not wish to sponsor it, they should
notify the desk.
THE PRESIDENT: Any member who
does not wish to be on this resolution, please
notify the desk.
The resolution is adopted.
821
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: If we could take
up Resolution Number 443, by Senator Kuhl,
which is at the desk, have the title read, and
move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator Kuhl,
Legislative Resolution Number 443, commending
the New York Association for Continuing/
Community Education and the 2000 Students of
the Year.
THE PRESIDENT: Senator Kuhl.
SENATOR KUHL: Yes, Madam
President. Thank you for giving me the
opportunity to speak briefly on this
resolution.
THE PRESIDENT: You're welcome.
SENATOR KUHL: This body, every
year for the last several years, has taken the
time to adopt this resolution and commend not
only certain members of an organization but
the students that they honor.
The New York State Association of
822
Continuing/Community Education is comprised or
compromised of adult education programs
operated by school districts and BOCES
operations and not-for-profit corporations.
The Association has 400 members statewide.
And each year, the Association
recognizes students who have used state-funded
adult education programs to make very, very
positive changes in their lives. These are
individuals who in fact -- they're not
following the normal education program, but
students who in fact have found difficulty in
their life situations but have overcome them
and certainly who have taken these educational
programs and proved their independence, their
self-reliance, and their self-sufficiency.
So this body, as it has in years
past, is here adopting this resolution
honoring all those people who we're joined by
in the galleries on the right and on the left,
so I'm told, and in fact wants to wish them
well.
We know that they have had some
difficulty in their past, but certainly they
have been challenged and have overcome those
823
difficulties and met those challenges. And we
know that they will be fine and outstanding
and terrific citizens for this state, not only
today but tomorrow and for many years to come.
So we welcome those people who have
participated in these adult education
programs, and we congratulate you on your
successes, because you are certainly role
models for all of us and for many people in
the state of New York.
Thank you, Madam President.
THE PRESIDENT: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Yes, I'd
like -- where are they? Okay.
I'd like to rise and also give my
congratulations to all of you for really doing
an incredible job, and all of the people that
participated in their education.
It's just an amazing thing to see
people going from an inability to understand
and read the English language and write the
English language to full literacy and success.
I want to just mention one
individual, since she's from my district,
824
Boguslawa Churawska. Pretty good? It's an
amazing situation. She came to this country,
could not speak English. She had a desire to
study architecture. She's now at OCC doing a
formal education after her training with this
group. And also, she is reaching her dream:
She's actually working for an architectural
firm. And the success is going to be even
much, much greater.
And we're very proud of her in our
49th Senate District, and we're proud of
everyone else who has participated in this
program.
And I've also met other members of
this group who are being honored, and I
believe other Senators are going to speak on
their behalf.
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: Thank you,
Madam President.
I too am pleased to be able to cite
the wonderful work that this program has done
with one of my constituents. And, as with
Senator DeFrancisco, I'm touched to see the
remarkable personal progress that a person can
825
make, but also how she has been able to
influence other people and to guide them and
inspire them to make similar changes in her
life.
The lady that I'm proud to
recognize today as one of the recipients of
this award is Ellen Kerce. And I hope I'm
pronouncing her name correctly. But Ms. Kerce
was born in Georgia in 1943, the third of 13
children. And in a large family, she was
taken out of school by her parents to care for
her younger siblings and never completed the
kind of education that most of us in this
chamber would take for granted.
And after moving to Syracuse some
years later and raising her own family, she
endeavored to make those personal changes in
her life so that she could develop real
literacy.
But she's done more than that.
She's become a spokesperson for adults going
back to school, has written extensively
passages from her own life story. She's
attended one National Literacy Conference and
one State Conference for Adult Learners.
826
So this program does more than just
help an individual acquire the skills to
survive. It provides the ability for them to
share those tools with other people and serve
as an inspiration for a much larger community.
So once again, I would like to
commend everybody here today with the New York
State Adult Continuing Education program and
again say how proud I am of our constituents
for what they have achieved personally.
THE PRESIDENT: Senator McGee.
SENATOR McGEE: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR McGEE: I am very
pleased to rise today to introduce to this
group two people who come from my district,
one from Allegany County and one from
Cattaraugus County. I'd just like to speak,
if I could, a little bit on these people.
Both of them have in fact obtained
a GED, which is a general equivalency diploma.
You know, I say to people that I talk with the
fact that all of us go to school and all of us
have the opportunity to graduate from high
827
school, but I think it takes a certain point
of determination, a certain drive to have
those individuals who do drop out of school go
back and get a general education diploma. And
to me, their star shines even brighter. It
shows the gumption, it shows the strength, it
shows the commitment to education.
And I'm very pleased to see Harold
Lockwood and Katherine Pearsall up there.
Harold is an outstanding person, I
want to tell you, because Harold is an active
member of the Voices for Adult Literacy
Education. He started as a client, he then
moved to a tutor. He is a board member, and
he is a popular local speaker for advocating
this adult literacy education.
Katherine, Katherine is a fine
example of a parent who has moved on, who has
gone to get her GED, who has in fact now
obtained employment and is working in the
field of food management, I believe, at this
point.
And I'm just absolutely pleased to
have these two people here and to show off, if
you will, show them off to my colleagues and
828
the fact what a great job they have done and
what a drive and commitment they have in their
further education.
To them I say congratulations for
being named the outstanding people, and thank
you for being here and sharing a moment with
me and with my colleagues in the New York
State Senate.
Thank you.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you.
THE PRESIDENT: You're welcome.
SENATOR OPPENHEIMER: Well, I too
am astounded by some of the successes of
people who have come from either very
disadvantaged backgrounds or backgrounds where
they were not brought up in this country.
And I am here to recognize Hever
Santizo, who is the New York State Adult
Student of the Year. And he's in my district;
he's here in the chamber with us.
And it's just extraordinary what
some of these folks can do. It absolutely
floors you. He came here of course not
829
speaking a word of English, nor reading
English, and had to surmount those problems.
He learned English, he then had to learn to
read English.
And one of the main things that
motivated Hever is that he wanted to be
available to and knowledgeable to help his
sons. His children were moving along through
the education system and speaking English
well, having come here very young -- in fact,
they were born here. And he felt that as a
parent, he wanted to participate.
And this is one of the wonderful
attributes of this program. I think it's
inspired by the children inspiring the parents
and the parents inspiring the children. And I
think this family education concept is the one
that we really have to promote the most.
Also, I think this particular
program does not at the present time reach out
to the children who are age 18 -- the young
adults, 18 through 21. And I think we have to
see that that particular segment of our
student population also receives the benefits
of this program.
830
But Hever came here from Guatemala,
and now he has four siblings who have come
also. And he is an inspiration to his family,
to his children, and I think to all of us.
Because we are the melting pot, and Hever
proves it and proves how successful you can be
when you put your mind to it and your will to
it.
Congratulations, Hever.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Senator Skelos.
SENATOR SKELOS: Mr. President,
I'm going to have to call an immediate meeting
of the Finance Committee in the Majority
Conference Room.
And since I have to attend that
meeting, I just want to congratulate all who
are honored by this resolution.
And I know that we're not supposed
to mention individuals, by the rules of the
Senate, but sometimes we bend the rules a
little bit.
So I'd like to congratulate Juan
Mendez, from my district. He's attended the
831
Long Beach Adult Learning Center, which is
covered by this resolution. But even more
important, he's going to be a lawyer.
(Laughter.)
SENATOR SKELOS: And Senator
DeFrancisco congratulates you. He would just
urge that you be on the plaintiff's side when
you do become a lawyer.
But congratulations to you.
ACTING PRESIDENT MARCELLINO:
There will be an immediate meeting of the
Finance Committee in Room 332. Remember,
please, go to Room 332 immediately so we can
conduct the business of that committee.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President.
I rise in support of this
resolution as well. I appreciate that the
Deputy Majority Leader has suggested that
sometimes we do have to bend those rules a
bit. And I'm going to bend them just a little
bit as well, because I want to talk to you
about a woman that I met today named Zahida
Kotoric.
832
And my first reaction when I met
her was that's an unusual name, an unusual
first name and an unusual last name, Mr.
President. But I couldn't help but think, as
I sat in my office and remembered that there
probably was a time when someone said to my
great-grandfather, John Finnegan: That is an
unusual name. Or my other great-grandfather,
William Bassett: That's an unusual name. Or,
frankly, when my own Great-Grandfather
Dollinger came here, and said: That's an
unusual name.
It seems to me that the American
experience is filled with the notion that
although you may come here with an unusual
name, it's a name that becomes part of the
warp and woof, the fabric of American culture.
And Zahida's experience is perhaps
the American experience condensed in a single
lifetime. She was born and raised in Bosnia.
She was displaced by war, as many of, frankly,
all our own generations were displaced by war
in Europe, brought here -- or excuse me, in
our case, we may have come directly here. She
didn't have that ability. She went to
833
Germany, where she was an immigrant for a
period of time.
But because the German government
for some reason says that you can only have
immigrant status for five years, for a period
of time, and because they are less welcoming
to immigrants than the United States, she
couldn't stay. And so she came here, she came
to Rochester, New York. Frankly, just like my
great-grandfathers came, in a different time.
But I would suggest that the
American experience about melting and the
melting pot couldn't be truer. And Zahida, I
see you up there, and I want to congratulate
you again for your great success and your
passage through American history by coming
here.
But I would suggest, as I suggested
to you in my office, that the chair that I sit
in today, my prayer for you is as perhaps
someone said to my great-grandfather: I hope
someday your great-grandchild has a chance to
sit in a chair in this chamber. I give you
the same blessing.
ACTING PRESIDENT MARCELLINO: The
834
question is on the resolution. All in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
resolution is adopted.
Senator Kuhl.
SENATOR KUHL: Yes, Mr.
President. Could we open that resolution up
to all the other members also.
ACTING PRESIDENT MARCELLINO: Be
pleased to, Senator Kuhl.
Any member not wishing to be on the
resolution, please signify to the desk as
such, and everyone else will be placed on the
resolution.
Senator Stavisky, why do you rise?
SENATOR STAVISKY: On my
Resolution, Number 431, Mr. President,
honoring the accomplishments of my constituent
Tommie Agee, I offer anybody who wishes to be
on the resolution, I open it up for
cosponsorship.
835
ACTING PRESIDENT MARCELLINO:
Senator Velella, is that okay with the chair,
we open up the resolution?
It's okay with the chair that we'll
use our normal procedure. Anybody not wishing
to be on the resolution, please indicate such
to the chair.
Senator Velella.
SENATOR VELELLA: Mr. President,
may we now proceed to the noncontroversial
reading of the calendar.
ACTING PRESIDENT MARCELLINO: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
52, by Senator Saland, Senate Print 395, an
act to amend the Family Court Act, in relation
to evidence of child neglect.
SENATOR DUANE: Lay it aside,
please.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
59, by Senator Skelos, Senate Print 426, an
act to amend the Education Law, in relation to
836
drug testing.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
62, by Senator Skelos, Senate Print 385, an
act to amend the General Business Law, in
relation to the sale of laser pointing
devices.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: The
bill is laid aside.
THE SECRETARY: Calendar Number
70, by Senator Trunzo, Senate Print 763, an
act to amend the Vehicle and Traffic Law and
the Public Authorities Law, in relation to
authorizing cities.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MARCELLINO: Lay
the bill aside, please.
THE SECRETARY: Calendar Number
73, by Senator LaValle, Senate Print 1042, an
act to amend the Education Law, in relation to
the terms of community college trustees.
SENATOR PATERSON: Lay it aside,
837
please.
ACTING PRESIDENT MARCELLINO: Lay
the bill aside, please.
Senator Velella, that completes the
reading of the alleged noncontroversial
calendar.
SENATOR VELELLA: Mr. President,
can we proceed to the controversial calendar.
ACTING PRESIDENT MARCELLINO: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
52, by Senator Saland, Senate Print 395, an
act to amend the Family Court Act, in relation
to evidence of child neglect.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MARCELLINO:
Senator Saland.
SENATOR SALAND: Thank you, Mr.
President.
Mr. President, what this bill does
is to take a section of the existing law under
the Family Court Act that effectively provides
something in the nature of an affirmative
838
defense, where a parent of a child that has
been alleged to have been abused or neglected
and is currently before the court, and remove
from the fact-finding phase to the
dispositional phase the participation of that
parent in some type of drug or alcohol
rehabilitation program.
The purpose of this is to deal with
those situations in which there have been
multiple applications for an order finding
either neglect or abuse, and the respondent
has alleged that he or she has participated or
is in the process of participating in some
type of a rehab program, thereby effectively
stimying the ability of the petitioner to go
forward.
By putting it in the dispositional
phase, what we would hope would be
accomplished and we would reasonably expect
would be accomplished would be that the court
would then have the ability to weigh the
conduct of the parent, his or her
participation in the program, and make a
determination in the best interests of the
child by retaining continuing jurisdiction.
839
And should that parent seek to drop
out of the alcohol or drug abuse program, the
court would have the ability to effectively
use that as a lever to keep that person in the
program.
We believe that this responds to
what is a shortcoming in the existing law.
And I would merely suggest it might not be
unlike a situation in which somebody who might
be driving while they're intoxicated is
stopped by a policeman and whips out a card
saying, I'm participating in an alcohol
program, therefore, do not give me a ticket or
therefore do not arrest me, because I am
participating in this program, and it is
effectively an affirmative defense.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If the sponsor would yield for a
question.
ACTING PRESIDENT MARCELLINO:
Senator Saland, do you yield?
SENATOR SALAND: I always yield
to Senator Paterson.
840
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR PATERSON: Thank you, Mr.
President.
My understanding of the current law
is a little different than that of Senator
Saland's. So perhaps if he's able to
enlighten myself and anyone who may feel the
way I do, we might be able to be in agreement
on this.
But the affirmative defense, as I
understand it, is contingent upon the proof
that the person is not just registered but is
actually attending one of these particular
situations.
And the reason that I wouldn't
compare it to the case of a person who is
stopped on the highway while intoxicated is
that the reason we're having the hearing in
the first place is to determine whether or not
there's child abuse. Is that correct,
Senator?
SENATOR SALAND: Senator
Paterson, in the definitional section and the
evidentiary section -- the definitional
841
section being 1012, the evidentiary section
being 1046 -- there's nothing in that language
that says that the ability to merely allege
your participation does not in and of itself
effectively -- allege and establish your
participation does not in and of itself
effectively serve as that buffer or that
affirmative defense that effectively brings
the neglect proceeding to an end.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR PATERSON: Is it not the
case that the establishment of this law would
actually provide what would really be a
disincentive to the party to participate in
this type of a program that they very much
need? If in fact it doesn't have any effect,
really, on a proceeding where certainly what's
in the state of mind of the accused is very
842
important.
SENATOR SALAND: Senator
Paterson, while I don't know if you and I have
debated this particular point, that issue has
come up in prior debates on this bill.
And I start from the vantage point
of what is of concern in this proceeding is
what's in the best interests of the child,
there has been an allegation of neglect or
abuse, and what are we going to do to best
serve the interests of that child.
And the fact that a parent or a
guardian has the ability to come in and
effectively stop the proceeding by alleging
his or her participation, and showing his or
her participation in the program, may in a
number of instances be genuine, but, very
similarly, in a number of instances we have
reason to believe -- and our information, I
must confess, is anecdotal, based on things
that have been reported to us -- but it has
been used, if not as a subterfuge, then
certainly as a less than good-faith effort.
The reality is is that our interest
is in the child. We would love nothing better
843
than to make the family whole. But we think
the best way to do that is with the ability to
have redress -- not merely termination of a
proceeding, but redress in the form of a court
continuing jurisdiction over the person who
has opted to claim that their functioning was
impaired by drugs or alcohol. They should not
be able to unilaterally get out of that
program with no consequences.
If that's a disincentive, I would
say that that is a disincentive only to those
who are not making a good-faith effort to try
and either reunite with their child or do
what's in the best interests of their child.
SENATOR PATERSON: Thank you, Mr.
President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, on the bill.
SENATOR PATERSON: On the bill.
When I come to look at these types
of legislation, I come with the presumption
that when they're introduced by Senator Saland
that they have been carefully studied. And
really, in the greater majority of these
situations, I would almost be willing to just
844
defer to his judgment because of his work on
this issue.
In this particular case, I actually
see that a person would be bereft of their
faculties in many respects as being a
fact-finding issue. And that the attention to
that issue is very important in terms of
determining whether or not at this point going
forward, this parent should be properly
designated by the court to supervise the
child.
And if there is abuse, certainly
then the court has to make another
determination. And I don't know that we
would -- although it's an affirmative defense,
it's not an affirmative defense against the
abuse, it's an affirmative defense against the
actual issue of whether or not there was this
kind of action in the first place.
So this is a very close call on
this situation. It may actually be the right
thing for this particular proceeding, but it
really does not, in my opinion, follow the
law, because this is really an issue of fact.
I don't see it as an issue of the
845
disposition, because even in the disposition
phase of the hearing, the question now is how
long this is going to be the case, what the
parent has to do to become eligible to
supervise the child again.
And I don't even know that it
relates to the disposition of the case. I
think it relates to the facts or the elements
that make up whether or not there was abuse in
the first place. And it's consistent with our
laws governing crimes and other aspects of the
law where the use of alcohol or substances
impinging upon the ability of an individual to
make a decision is part of our law.
So I think that actually, if we
were going to be consistent, we would have to
change several layers of legislation that
we've compiled over a long period of time.
Do we make an exception in this
case? It's very close on this issue. I
maintain that we do not.
SENATOR SKELOS: Mr. President,
if I could just interrupt for a moment.
ACTING PRESIDENT BALBONI: Yes,
Senator Skelos.
846
SENATOR SKELOS: There will be an
immediate meeting of the Environmental
Conservation Committee in the Majority
Conference Room.
ACTING PRESIDENT BALBONI: Thank
you.
There will be an immediate meeting
of the Environmental Conservation Committee in
the Majority Conference Room.
Senator Hassell-Thompson, you wish
to be recognized?
SENATOR HASSELL-THOMPSON: On the
bill.
ACTING PRESIDENT BALBONI: On the
bill.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President.
I listened to the questions and the
answers. And the thing that I think I'm
concerned about is that we are, in this bill,
my estimation is that we're dictating to the
courts.
And I think that from my
experiences in working with Family Courts
around these issues -- and that's a 25-year
847
history of working with this population in the
courts -- it has been my contention that
Family Courts for the most part take into
advisement any kind of rehabilitation that the
plaintiff may be involved in.
But I have never had as an
experience, and I think my experience is
somewhat vast, that this is the only position
that they -- that this is the primary reason
for intervention.
Once the protective services is
involved with the family around substance
abuse, be it alcohol or drugs, the tendency is
for these persons to be involved in a series
of different programs, and of course substance
abuse being primary.
But one of the things that I think
concerns me is rather than legislating, I
think that from a policy perspective we ought
to be giving as much support in a regulatory
fashion to the courts as possible, ensuring
that they have the widest jurisdiction that
they have and can have in making these kinds
of decisions.
But I think that one of the things
848
that we fail to do here is look at the
programmatic intervention. And I will
continue to raise this as a concern and as an
issue as I come before this body, primarily
because we're looking at the courts, the
weaknesses of the courts, but we're not
looking at the weaknesses of the cases that
are being brought to the courts and why the
courts are making the decision to allow the
participation in drug rehabilitation programs
to have such weight in their decisions.
And mainly it's because most of the
workers who are involved in Child Protective
Services are so overloaded that they bring
very weak cases and they are not able to
fulfill their monetary and enforcement
responsibilities prior to coming to court. So
that the cases that they bring weakens the
hand of the court.
And so that mandating without
enforcement and without the monies to support
the court is what's going to cause the primary
problem. We have caseworkers with cases as
large as 60 and 80. And when you have
families with seven and 10 children that are
849
involved, it is very difficult for the
monitoring that ought to happen prior to court
to come about.
And so if the person is in a
program, many times the courts will weigh the
fact, on-face fact of their participation.
And they don't just take the word of the
client. What they usually do is ask for and
receive records of participation, attendance,
and some form of evaluation before
dispositions are made.
So I'm not necessarily sure that I
need to vote for something that will give the
courts powers that I think that they already
have. I think that we need to be looking, as
we debate our budgets, at how do we support
the courts, how do we support the court
agencies before it comes to court to ensure
that the participation for people is as
successful as it can possibly be.
So I will be voting no on this
bill.
ACTING PRESIDENT BALBONI: Thank
you, Senator.
Senator Duane, do you wish to be
850
recognized?
SENATOR DUANE: Thank you, Mr.
President. Would the sponsor yield?
ACTING PRESIDENT BALBONI:
Senator Saland, would you yield to a question?
SENATOR SALAND: Certainly, Mr.
President.
SENATOR DUANE: Thank you.
In an effort not to repeat last
year's debate, last year the sponsor indicated
that this change in the law was based on
anecdotal evidence.
I'm wondering whether there's any
hard data or if there's been any advocacy on
the part of child welfare agencies or child
advocates regarding this issue.
SENATOR SALAND: This not the
type of information that would normally be
retained either by Family Courts or by the
Office of Court Administration.
I can tell you that I handled cases
like this for nearly seven or eight years. I
experienced it firsthand. So whether that
qualifies, I do not know.
I would respectfully suggest that
851
what this is about is whether or not an act of
neglect or abuse has occurred, not whether the
parent or guardian should receive some type of
initial or preliminary shield from going
through an abuse or neglect proceeding.
We would very much encourage and
support parents or guardians who would
participate in drug or alcohol rehab programs,
substance abuse programs, but we don't think
that that should be an automatic shield to (a)
a determination of whether neglect or abuse
has occurred, or (b) the continuing
jurisdiction of the court so as to ensure that
the parent is making a good-faith effort and
not merely attempting to dodge what might be
otherwise the impact of his or her conduct as
determined by the Family Court.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT BALBONI:
Senator Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT BALBONI: The
852
Senator yields.
SENATOR DUANE: As I understand
it, what this legislation does is it makes the
participation in a program something which is
most heavily weighed at the end of a
proceeding, and at the beginning of the
proceeding involvement in a drug or alcohol
treatment program is really sort of neutral,
that the judge doesn't have to weigh it
strongly one way or the other. Is that
correct?
SENATOR SALAND: It would not -
while it would be an element to be introduced
by way of whatever it was that the respondent
would be introducing in the course of making
his or her case, that would not occur unless
and until there had been a finding of neglect
or abuse.
Then, before the court could make a
determination as to what disposition would
occur, the respondent would maintain: I have
enrolled in a substance abuse program, I am
regularly participating in a substance abuse
program.
And the court then would weigh that
853
participation in the course of rendering its
disposition as to how they were going to -- I
wouldn't use the word "sentence," because we
don't sentence in a Family Court proceeding -
but dispose of the case or resolve the case.
And the court, I'm sure, would have
the ability to in effect monitor the continued
participation in that program. Because what
we want is the participation in the program,
but we don't want it to be used merely as a
stopgap or not a good-faith effort. We want
to, wherever possible, reunite the parent
and/or guardian with the child, but only under
circumstances where it's in the best interests
of the child.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT BALBONI:
Senator Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT BALBONI: The
Senator continues to yield.
SENATOR DUANE: I'm looking at
854
the proceeding as sort of a beginning -
SENATOR SALAND: Mr. President.
ACTING PRESIDENT BALBONI:
Senator Saland.
SENATOR SALAND: I have -- behind
me, I'm having a little bit of a din. And
Senator Duane's voice doesn't carry as well.
ACTING PRESIDENT BALBONI: Let me
please remind people in the chamber there is
an active debate going on. Please extend the
courtesies to the members on the floor.
Thank you.
Please proceed, Senator Duane.
SENATOR DUANE: Thank you, Mr.
President.
You know, I think it's that the
acoustics in this spot are not as good as they
were in my old spot.
(Laughter.)
SENATOR DUANE: Because certainly
the passion hasn't changed.
SENATOR SALAND: You'll have to
excuse me. I had the same problem when
Senator Waldon was over there. I found it
difficult to hear him as well.
855
SENATOR DUANE: I'm putting my
name on the list for a change.
Anyway, through you, Mr. President,
since the sponsor has already indicated he'll
yield, I look at the proceeding as a
continuum, beginning to its final
determination. And I also look at if a mother
has decided to undergo treatment also as a
continuum, maybe even before the proceeding
began to when the judge makes a final
determination.
In the course of the proceedings,
in a perfect world -- and maybe what needs to
be fixed by us -- is the monitoring of
compliance with a treatment program
throughout. But the actual voluntary decision
to enter a treatment program I believe should
be considered a positive element.
And I still -- and I've heard the
answer on this, but I just want to go through
it again, why it is if a case is not being
monitored, if a mother and a family are not
being -- if they are being monitored, then why
can't the mother's involvement in a treatment
program be considered, you know, on its face
856
an affirmative action on her behalf?
SENATOR SALAND: Well, to in
effect make it the final determinant when the
underlying proceeding is about whether there's
been neglect or abuse, to make it the final
determinant may well be appropriate in some
cases where you know that person is genuinely
committed to the program and will continue in
that program.
There is no way of knowing that,
however, at the fact-finding stage if you're
going to accept -- which the law substantially
requires us to do now. Then the proceeding
comes to an end and you don't deal with that
family again, at least in the context of
neglect or abuse, unless or until there's
another abuse or neglect petition that's been
brought before the court.
And if that person comes in again
and says, I'm in a substance abuse program,
you're back to square one and you get the same
response.
What we're saying is as much as you
want parents or guardians to enroll in
substance abuse programs, we want parents or
857
guardians to enroll in substance abuse
programs. We however would like to make sure
that there is some mechanism that controls
their participation.
And we feel the only way you
establish that mechanism is not to terminate
the proceeding at fact-finding by showing that
you're regularly involved in the program, but
to hang onto it into disposition, where the
court then determines upon disposition, yes,
Mr. or Ms. or Mrs. So and so is in this
program, and that's wonderful, we are not
going to remove the child as long as you are
participating in the program, and perhaps
there will be some other programs that they
would encourage participation in as well.
I happen to think, after eight
years serving as chairman of the Children and
Families Committee, and having, as I mentioned
in my earlier remarks, handled I don't know
how many of these cases when I was doing this
for my county, that that is better not only
for the child in protecting his or her
interests, but really better for the family,
more constructive.
858
We may have an honest difference of
opinion on that, Senator Duane.
SENATOR DUANE: Thank you.
Mr. President, on the bill.
ACTING PRESIDENT BALBONI: On the
bill.
SENATOR DUANE: Thank you.
I actually was going to say exactly
the same thing that the sponsor says. I think
we just disagree on this particular issue.
I think that the stress of either
having lost your children or being at greater
risk of losing your children serves as
somewhat of a disincentive to recover. It
almost, for many mothers who lose custody of
their children, it becomes somewhat of a
hopeless situation. And in hopelessness,
there isn't really as much incentive to
recover.
Whereas if the family is kept
together, I believe that there's a stronger
incentive to keep that family together and do
anything you can to keep it together. And I
think that a mother's, in most cases, desire
to protect the well-being of their children is
859
in fact one of the things that's stronger than
the pull of addiction.
I also think that in many cases,
not everybody recovers right away. Some
people relapse. Being a mom and perhaps
working too is a stressful thing, and I think
that for some moms it takes a little while to
get the hang of doing all that sober. But I
think that most women in that situation will
try to do that.
And that's why I'm concerned about
not allowing just being enrolled in a
treatment program to be an affirmative reason
to keep the family together. As I say, in a
perfect world, if we had monitoring in these
situations and if we made it so that the
proceeding didn't have to start all over
again, that might be a better way to go.
But I know that we don't have that
kind of monitoring available in most cases,
and that's a shame. But I don't think we
should penalize the mothers because we're not
able to provide the kind of support to them
that they need to have.
I also think that one of the things
860
that we're missing in this state is there's an
incredibly small number of beds available for
mothers who are trying to recover to be with
their children. And in fact, the only ones
that exist are only for women who have infants
and not older children. I mean not even, you
know, pre-K-age children. And that's
something where I think we really need to
invest the money.
Because in fact I think the best
way for recovery to be achieved for these
families is not just for the mother to be in
recovery but for the whole family to recover
together, so that some of the damage that's
been done because of drugs and alcohol can be
addressed as well with the children when
they're younger. Because I think that the
manifestations of that are more likely to be
shown when the child is older, although
sometimes also when they're younger.
I wish that in this state we
invested in that kind of treatment that keeps
families together when one of them has
succumbed to alcohol and drug abuse.
I certainly understand the
861
sponsor's desire to protect children, and I
share that. I think we just disagree on the
best avenue to do that. I share his
frustration, but I don't think that -- I
disagree that the way to address what's so
frustrating about these cases coming back and
coming back is to put a mom at greater risk of
losing custody of her children through the
process.
It's a difficult problem and one
that I hope we'll continue to work on. But at
this point, I would have to recommend not to
support this legislation.
Thank you, Mr. President.
ACTING PRESIDENT BALBONI: Thank
you, Senator.
Senator Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Local Governments
Committee in the Majority Conference Room.
ACTING PRESIDENT BALBONI: There
will be an immediate meeting of the Local
Governments Committee in the Senate Majority
Conference Room.
Senator Brown.
862
SENATOR BROWN: Yes, Mr.
President. Would the sponsor yield for a
question.
ACTING PRESIDENT BALBONI:
Senator Saland, do you yield to a question?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT BALBONI: The
Senator yields.
SENATOR BROWN: Thank you, Mr.
President.
I'm trying to understand, under the
current law, in an abuse or a neglect
proceeding a child cannot be removed from a
household if the parent or guardian is in
treatment; is that correct?
SENATOR SALAND: Under the
current law, if an allegation is made that the
subject of the petition, the respondent, is in
a -- regularly participated in some type of
substance abuse program, that effectively
constitutes an affirmative defense. And the
burden then is on the petitioner to go
forward.
It is like any other affirmative
863
defense. It is not always a firewall. It can
be a firewall.
SENATOR BROWN: Through you, Mr.
President, would the sponsor continue to
yield.
ACTING PRESIDENT BALBONI:
Senator Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
ACTING PRESIDENT BALBONI: The
Senator yields, Senator Brown.
SENATOR BROWN: Under the
proposed new legislation, it appears -- as I
read it, it appears that treatment can be
taken into consideration in an abuse or a
neglect proceeding. Am I correct in my
reading of that?
SENATOR SALAND: What we're
proposing to do is to move it from the initial
stage -- it will always be a consideration.
The existing law says you make that
consideration in the initial or fact-finding
stage. And if you establish your affirmative
defense and that affirmative defense cannot be
overcome by the petitioner, then that
864
effectively concludes the proceeding and
there's no finding of neglect or abuse.
What we're attempting to do here is
to say that this is a neglect or abuse
proceeding and, while we deem the involvement
of the respondent in his or her regular
participation in a substance abuse program to
be very, very important -- and, yes, we very
much want it to happen -- we think it's more
appropriately a consideration at the end, if
there has been a finding of neglect or abuse,
and that the court consider the parent's or
guardian's participation and then have the
ability to oversee that continued
participation so as to make sure that there's
the continuum and hopefully the improvement of
the situation within the household which we
would like to think would be in the best
interests of the child and of the family.
SENATOR BROWN: Mr. President,
would the sponsor continue to yield.
ACTING PRESIDENT BALBONI:
Senator Saland, do you continue to yield?
SENATOR SALAND: Yes, Mr.
President.
865
ACTING PRESIDENT BALBONI:
Senator Brown.
SENATOR BROWN: So as I hear
Senator Saland's explanation, it sounds like
the proceeding would go forward, a
determination would be made. At the end of
the determination, then the judge could take
into account the parent's or guardian's
participation in the program, and that would
not necessarily result in the removal of the
child from the household. Am I correct?
SENATOR SALAND: No, it would not
necessarily result in the removal of the
child.
I would think that as part of that
dispositional hearing, once you establish that
you are -- and I couldn't speak for the court,
but once you've established that you were
regularly engaged in the program and the
program obviously was a certified and
appropriate program, that that would result
either in no removal or perhaps in some type
of structured situation until such time as the
court would deem it appropriate to remove that
structure.
866
SENATOR BROWN: Mr. President, I
thank Senator Saland for his explanation.
ACTING PRESIDENT BALBONI: Thank
you, Senator.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect 120 days.
ACTING PRESIDENT BALBONI: Call
the roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 52 are
Senators Duane, Hassell-Thompson, Montgomery,
Paterson, and Santiago. Ayes, 52. Nays, 5.
ACTING PRESIDENT BALBONI: The
bill is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Finance Committee at the desk. I ask that it
be read.
ACTING PRESIDENT BALBONI:
Reports of standing committees. The Secretary
will read the report of the Finance Committee,
867
please.
THE SECRETARY: Senator Stafford,
from the Committee on Finance, reports the
following nominations:
As Commissioner of Motor Vehicles,
Raymond P. Martinez, of Baldwin.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, please.
SENATOR SKELOS: Mr. President,
I'm very pleased to move the nomination of Ray
Martinez as the next Commissioner of the
Department of Motor Vehicles, and to
congratulate the Governor on this wonderful,
wonderful nomination. He truly is an
excellent choice.
Ray has tremendous experience.
I've known Ray for probably about twenty
years -- when he was a mere child -- but he
has served as a special assistant to the
regional administration for the U.S.
Department of Housing and Urban Development.
He served on the White House staff as the
scheduling and advance person for the former
First Lady Nancy Reagan.
A fine attorney, he served as the
868
deputy chief of staff for former Attorney
General Dennis Vacco and assistant general
counsel now for the Long Island Power
Authority.
Ray has a -- and he said this in
the Finance Committee -- a deep commitment to
public service. And I know, as I said in the
Finance Committee, he will understand that our
constituents are his consumers and to make
sure that those who have to use the Motor
Vehicles Department will be treated in a
courteous and a responsive way.
He's joined today by his wife,
Jill, who is a fine attorney in her own right,
and a public servant, and my dear friend
Maggie, who's also with us today, Ray's
sister.
So I'm delighted at this time to
move the nomination of Raymond P. Martinez to
be the Commissioner of the Department of Motor
Vehicles.
ACTING PRESIDENT MARCELLINO:
Senator Balboni.
SENATOR BALBONI: Thank you, Mr.
President.
869
It gives me great pleasure to rise
this afternoon on this floor and support this
nomination. If any of you know Ray Martinez,
you understand my pleasure. If you do not
know, permit me briefly to put a face on the
man.
Teddy Roosevelt once remarked, "The
first requisite of a good citizen of this
republic of ours is that he shall be able and
willing to pull his weight." Ray has always
been willing to pull his weight. He has
accepted every job, every duty, every request
with professionalism, dedication, and
intelligence, and also sensitivity.
Whether it was heading up the
advance team for the President of the United
States, guiding the office of the State
Attorney General, or helping a lowly candidate
for town supervisor office, Ray has
contributed enormously to every task he's
undertaken. And it is through these positions
that Ray has developed his greatest asset.
Oftentimes in our society the
people who we represent feel out of touch with
their government officials. They feel a sense
870
of distance that the person who represents
them does not understand their daily lives.
Ray, through his experiences, has developed a
deft touch with people. You see it in the way
he looks at people, the way he talks to them.
All at once you have a counselor, a trusted
advisor, and a friend.
Ray is someone you feel very
comfortable calling in the middle of the night
to come and give you assistance. And in fact,
I have done that with Ray, and he has
answered. And you know he's going to be
there.
The appointment today might be seen
by some as a plum appointment. And certainly
the position of the Commissioner of the
Department of Motor Vehicles is a very
important office, and it comes with the
trappings of power that are appropriate to
that office. But it is also encumbered by
enormous responsibilities and duties and
obligations and is arguably one of the most
visible offices in the Executive. If Ray's
policies are not appropriately carried out, he
will surely hear it immediately.
871
But today we have an opportunity to
put somebody into an office that truly
understands the nature of what it is to be
human, of what it is to be a friend, and what
it is to be part of our community.
Ray is married to a wonderful
woman. Jill Sandhaas Martinez is probably one
of my closest friends in the world, and of my
wife, Stephanie. She is the godmother -- this
is a disclosure item, my colleagues -- she is
the godmother of my last child, Michaela.
That is an indication of the friendship and
also the trust that we have in both of them.
Mr. President, this is an enormous
opportunity again to give the people of the
State of New York a true champion in an office
that affects their lives on a daily basis. I
would ask all of you to support this
nomination.
Thank you.
ACTING PRESIDENT MARCELLINO:
Senator Maziarz.
SENATOR MAZIARZ: Thank you very
much, Mr. President.
Commissioner Martinez, you've
872
already accomplished something. You have
people standing up on the floor to support
this nomination from Nassau County and Long
Island and the most beautiful area in all of
New York State, Niagara Falls, New York. And
it's rare that we have such agreement on a
nominee between upstate and downstate.
But as a former county clerk, as an
individual who's had to deal with the
Department of Motor Vehicles to a very great
extent, I met, Mr. President, on several
occasions with Commissioner Martinez and fully
support his nomination, support his outreach
programs to the county clerks of this state,
particularly as it deals with the Department
of Motor Vehicle local offices. And I look
forward to working with the Commissioner.
I commend Governor Pataki on what I
think is an excellent nomination and an
individual who's going to do a great job for
all the people of the State of New York and
work extremely closely with the county clerks.
So congratulations, Commissioner,
and good luck.
Thank you, Mr. President.
873
ACTING PRESIDENT MARCELLINO:
Senator Goodman.
SENATOR GOODMAN: Mr. President,
I've known this candidate for many, many years
and have always found him to be a man of
extraordinary capacity and ability.
I think it's a very fine thing
indeed that he's being proposed for this very
sensitive post, which is probably the one area
in which most constituents come into contact
with government. If they're mishandled by the
Department of Motor Vehicles, this leaves a
very unfortunate taste and gives them the
impression that their government is
unresponsive and irresponsible.
With Ray Martinez I think we can
guarantee the kind of sensitivity and mature,
deliberative capacity which is essential to a
Commissioner of Motor Vehicles.
His government experience is
extensive. I've known him since his days at
HUD in New York County, which was a long, long
while ago. He served in the White House
splendidly in the years '86 to '89. He was a
banker, he's been in various aspects of
874
governmental experience.
He brings both maturity and great
ability to this post, and I think without
question he'll be one of the outstanding
commissioners in the current administration.
I salute him most warmly and
commend him to this house for a unanimous vote
of approval.
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Senator Fuschillo.
SENATOR FUSCHILLO: Thank you,
Mr. President.
I am delighted to rise, as my other
colleagues from Nassau County and throughout
the state -- and my colleague behind me from
upstate New York, for recognizing the immense
talent pool that we have from Nassau County.
Ray Martinez is a terrific guy, and
I've known him for many years. In his
capacity as acting commissioner, he has served
admirably. But he possesses three qualities
which I admire most in him: youth,
experience, and the ability to get a job done.
And he's walking into shoes from
875
Commissioner Jackson, who has really made the
Motor Vehicles and the offices
consumer-friendly. And you and I have had the
opportunity to chat in the Transportation
Committee about the horrors of spending a day
on Pravado [ph] Road and what it used to be
like in Westbury.
But that's all changed, and I hope
you continue on with the changes that the DMV
has made over the years. And I congratulate
your family and your wife, and I wish you the
best of luck. And I congratulate the Governor
for such a fine appointment.
Thank you, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Nozzolio.
SENATOR NOZZOLIO: Thank you, Mr.
President.
Mr. President, I rise to join my
colleagues' enthusiastic support of this
wonderful nominee, although I do separate my
comments a bit from my great friend Senator
Fuschillo. I'm not sure exactly how young our
nominee here is anymore, because I certainly
have known him for a number of years. He's
876
not as young as he used to be.
But he certainly is as enthusiastic
as ever. And I'm confident he will handle
these challenges with the great acumen that he
has handled every other professional
responsibility entrusted upon him.
I would certainly add that there is
no greater agency in state government that
touches the lives of individuals than the
Department of Motor Vehicles. Where it is
closer to the people, it is part of many -
particularly upstate, the only state agency
that individuals have any contact with.
And that's why the appointment is
such an important appointment to head this
agency. Governor Pataki could not have found
a more people-oriented individual than our new
commissioner.
And I certainly wish to join
enthusiastically with the great praise given
to him today, and look forward to working with
him in the months and years ahead.
An excellent nomination. I move
its acceptance.
Thank you, Mr. President.
877
ACTING PRESIDENT MARCELLINO:
Thank you, Senator.
Are there any other Senators
wishing to be heard on this nomination? Are
we sure there are no other Senators wishing to
be heard on this nomination?
The question is on the nomination
of Raymond P. Martinez, of Baldwin, to serve
as Commissioner of Motor Vehicles. All in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Nay?
(No response.)
ACTING PRESIDENT MARCELLINO:
Congratulations, Commissioner.
(Applause.)
ACTING PRESIDENT MARCELLINO:
Commissioner, we wish you well. We wish your
wife, Jill, who is a saint, well. And Maggie,
good luck. And God bless, good to see you.
Be well.
The Secretary will read.
THE SECRETARY: As a member of
the State Board for Historic Preservation,
878
Elizabeth L. Watson, of Cold Spring Harbor.
SENATOR SKELOS: Move the
nomination.
ACTING PRESIDENT MARCELLINO: The
question is on the nomination of Elizabeth L.
Watson, of Cold Spring Harbor, for a term as
member of the State Board for Historic
Preservation. All in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO:
Opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO:
Elizabeth L. Watson is confirmed.
The Secretary will read.
THE SECRETARY: As Commissioner
of the State Insurance Fund, John F.
Carpenter, of Elmira.
As a member of the Fire Fighting
and Code Enforcement Personnel Standards and
Education Commission, Peter A. Caruso, of
Utica, and Kevin Seamus Malley, of the Bronx.
As a member of the Saratoga-Capital
District State Park, Recreation and Historic
879
Preservation Commission, Carl V. Wortendyke,
of Upper Nyack.
As a member of the State Harness
Racing Commission, Joseph V. Angiolillo,
Esquire, of West Harrison.
As Major General of the New York
State Air National Guard, Archie J. Berberian,
II, of Schenectady.
And as a member of the State Board
of Visitors of the New York State Home for
Veterans and their Dependents at Batavia,
Linda M. Janelli, of Amherst.
ACTING PRESIDENT MARCELLINO: The
question is on the nominees as read by the
Secretary to be confirmed for the positions
designated. All in favor signify by saying
aye.
(Response of "Aye.")
ACTING PRESIDENT MARCELLINO: All
opposed, nay.
(No response.)
ACTING PRESIDENT MARCELLINO: The
nominees are confirmed and issued our
congratulations.
Senator Skelos.
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SENATOR SKELOS: Mr. President,
if we could return to the controversial
calendar.
ACTING PRESIDENT MARCELLINO: The
Secretary will read.
THE SECRETARY: Calendar Number
59, by Senator Skelos, Senate Print 426, an
act to amend the Education Law, in relation to
drug testing.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, an explanation has been asked
for.
SENATOR SKELOS: This bill, which
has passed 1997, '98, '99 and 2000
unanimously, would require the State Education
Department to promulgate rules and regulations
to be used as guidelines for public and
nonpublic schools wishing to institute a drug
testing program for its athletes.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
in the years '97, '98, '99, and 2000, I don't
think I was paying enough attention around
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here. Somehow, upon closer review, if Senator
Skelos would yield for a few questions.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, do you yield so that Senator
Paterson can be brought up to speed on this
significant piece of legislation?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
yields, sir.
SENATOR PATERSON: Thank you, Mr.
President.
In the system when the school
district is voluntarily allowing for drug
testing of its student athletes, my question
relates to how the student and his or her
parent are informed and in which way they can
opt out of the drug testing.
And, in addition to that, whether
or not you feel that there's a presumption or
a stigma that would come from someone that
says they don't want to be tested for drugs.
Doesn't that beg the question "then you must
be using drugs"?
SENATOR SKELOS: I think what
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we're talking about with this legislation is
having the Department of Education promulgate
rules and regulations which would be a
guideline to have uniformity throughout the
entire state for any school district that
actually decides to do drug testing.
The issue right now is not how drug
testing is administered, it's do we want to
have nondiscriminatory and uniform standards
throughout the State of New York for any
school district that wishes to opt into having
drug testing.
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT MARCELLINO:
Yes, Senator Paterson.
SENATOR PATERSON: Would Senator
Saland yield for another question?
ACTING PRESIDENT MARCELLINO:
Senator Saland is not in the room, but Senator
Skelos might yield.
SENATOR SKELOS: Yes.
ACTING PRESIDENT MARCELLINO: He
does, sir.
SENATOR PATERSON: Yeah, we'll go
with Senator Skelos on this one.
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ACTING PRESIDENT MARCELLINO: I
thought you might.
SENATOR PATERSON: Student
athletes. Why are we targeting student
athletes as opposed to any other student?
SENATOR SKELOS: Well, again, I'm
not targeting them with this legislation.
What we're saying is the Supreme
Court of the United States -- I think it's the
Lavonia case -- held drug testing of student
athletes to be constitutional, especially when
it involved the use of steroids and other
types of enhancing drugs, to be able to
protect them.
So it's not a matter of targeting.
The United States Supreme Court has said that
it is constitutional. And all we're doing
with this legislation is saying if the United
States Supreme Court has held it to be
constitutional and school districts are doing
it unilaterally within the state, then there
should be some guidelines throughout the state
if a school district opts into it.
SENATOR PATERSON: Mr. President,
if the Senator would continue to yield.
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ACTING PRESIDENT MARCELLINO:
Senator, do you continue to yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MARCELLINO: He
continues to yield, Senator.
SENATOR PATERSON: Actually,
Senator, you answered my question when you
pointed out the use of steroids and different
types of substances that enhance athletic
performance. Because prior to that, I was
just thinking about the regular testing for
illegal substances, and I wanted to know why
we would distinguish students from any other
group.
But from your answer, while I don't
know that -- see, I think there is a
misperception based on some high-profile
cases, cases such as Dwight Gooden and Darryl
Strawberry, where there was drug use by
athletes. I maintain that the drug use by
athletes is less than the regular population.
But the issue of stimulants that
enhance performance is something that was
engaged in a great deal of time during the
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'80s and was certainly, I would imagine, the
intent of this legislation. Because it did
injure several individuals that didn't know at
the time that they were letting themselves in
for that type of health risk by taking these
substances.
So actually, I withdraw the
question. And on the bill, Mr. President.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, on the bill.
SENATOR PATERSON: I find that
when I read the legislation, I come to the
same point of view as when I don't read it.
ACTING PRESIDENT MARCELLINO:
Read the last section, please.
THE SECRETARY: Section 2. This
act shall take effect 180 days.
ACTING PRESIDENT MARCELLINO:
Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
The Secretary will read.
THE SECRETARY: Calendar Number
886
62, by Senator Skelos, Senate Print 385, an
act to amend the General Business Law, in
relation to the sale of laser pointing
devices.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, an explanation has been asked
for by Senator Paterson.
SENATOR SKELOS: Mr. President,
this bill would -- just to point out, if
Senator Paterson was listening in 1999 and
2000, that it also passed unanimously in those
two years.
It would prohibit the sale of laser
pointing devices to persons under 18 years of
age, prohibit students from possessing laser
pointers in schools, and make the use of a
laser pointing device in a manner to cause
harassment aggravated harassment in the second
degree.
ACTING PRESIDENT MARCELLINO:
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator Skelos would yield for a couple of
questions.
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Because in 1999 and 2000, they
weren't particularly good years for me. Most
of my family members and these staff members
and other colleagues felt that I wasn't paying
enough attention to them.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, do you yield to Senator
Paterson?
SENATOR SKELOS: We would never
accuse you of not paying attention, Senator
Paterson. Maybe your colleagues on the
Minority would, but not, certainly, the
Majority.
ACTING PRESIDENT MARCELLINO:
Senator Paterson, I believe he yields.
SENATOR PATERSON: I'll take that
under advisement, Senator Skelos.
Many of the school districts right
now have policies relating to the use of these
laser pointing devices and actually have
penalties for students who bring them to
school. And in one of the school districts in
my district, a student is actually suspended
for a period of time if they bring one of
these objects to school.
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If we are forbidding the sale of
these devices to these students, wouldn't we
then want to really be penalizing the parents
in these types of situations more than the
students?
Because since we're limiting the
sale, which I like in this bill, what we're
really saying is that these individuals are
not of requisite knowledge and experience to
handle them properly. So to then, in another
aspect of government, to be penalizing them
when it's really the duty of the parent, I
would think, to come in and admonish this type
of behavior, would that be an extension of
what would be the principle of this
legislation?
SENATOR SKELOS: What this
legislation would do is that laser pointing
devices can be very dangerous when
possessed -- well, by anyone, if they want to
use it improperly -- but in particular a
minor, where often they will dot police
officers where a police officer will think
it's a high-tech-type pistol and put the minor
in danger. Sometimes they will shoot the
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laser pointer in another person's eye, which
can cause blindness.
So what we're saying here is,
number one, you can't sell; that the laser
pointing devices have to be placed in a secure
area, I think similar to what we do with
cigarettes; that you cannot possess it on a -
in a schoolyard or in a school building; and
if you use it in a way to harass somebody, it
could be a criminal penalty.
Although possession on school
property would not be a crime, you could be
fined a hundred dollars, plus the school
district can do whatever they wish in terms of
discipline if a person under 18 brings it to
the school, and the local municipality can
enact a more stringent law if they so desire.
So, for example, if the City of New York wants
to have more stringent legislation, they can.
SENATOR PATERSON: A final
question for Senator Skelos, Mr. President, if
the Senator will yield.
ACTING PRESIDENT MARCELLINO:
Senator Skelos, do you yield to the final
question?
890
SENATOR SKELOS: Absolutely.
ACTING PRESIDENT MARCELLINO:
Would you like a lifeline?
SENATOR PATERSON: Then I guess
my question simply is in other legislation
would you suggest that now that we are
limiting the sale to those individuals over
the age of consent, which we've established as
being 18, that the school districts really
should probably focus more attention to the
custodian rather than the child when it finds
that the child is using these devices?
Because we as a Legislature have
made a law and the Governor, we assume,
approves, that the child is not really of the
age of responsibility to even be determining
whether or not they should have this device in
the first place, the child shouldn't be
holding the device.
SENATOR SKELOS: I think if
you're saying that because we restrict the
sale, that that's the only way a child can get
it, from a parent, I think it's incorrect. It
can be purchased on the street, it can be
purchased from a friend, it can be purchased
891
from anybody, just like an illegal handgun
could also.
SENATOR PATERSON: Thank you,
Senator.
ACTING PRESIDENT MARCELLINO:
Senator Onorato, why do you rise?
SENATOR ONORATO: Mr. President,
will the sponsor yield to a question?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MARCELLINO: The
Senator yields.
SENATOR ONORATO: Senator Skelos,
how does this apply to a student that is over
18 in a secondary school?
SENATOR SKELOS: Well, it
wouldn't apply to them in terms of possession
unless they misused it.
ACTING PRESIDENT MARCELLINO:
Read the last section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
September.
ACTING PRESIDENT MARCELLINO:
Call the roll.
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(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MARCELLINO: The
bill is passed.
The Secretary will read.
THE SECRETARY: Calendar Number
70, by Senator Trunzo, Senate Print 763, an
act to amend the Vehicle and Traffic Law and
the Public Authorities Law, in relation to
authorizing cities.
SENATOR PATERSON: Explanation.
SENATOR SKELOS: Lay it aside for
the day.
ACTING PRESIDENT MARCELLINO: Lay
the bill aside for the day, please.
THE SECRETARY: Calendar Number
73, by Senator LaValle, Senate Print 1042, an
act to amend the Education Law, in relation to
the terms of community college trustees.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MARCELLINO:
Senator LaValle, an explanation has been
requested.
SENATOR LAVALLE: Senator
Paterson, this is a very simple bill -- I
893
believe it was reported from the Senate
Committee on Higher Education unanimously -
in which we are changing the terms of the SUNY
community college trustees from nine-year
terms to seven-year terms. That's what the
legislation calls for.
The feeling has been, both in our
committee and in this body, that terms -- and
we've changed the terms of the Board of
Regents from a point in time when I was
director of the Senate Committee on Higher
Education. The terms of the Board of Regents
were 14-year terms, consistent with the terms
of a Supreme Court judge. And today, those
terms are five years.
We initially, in this legislation,
wanted the terms to be the same. The
committee -- some of the committee members
thought that they should be the same as the
SUNY Board of Trustees, seven-year terms.
So we changed that legislation as
it is before us, to seven years. And I think
that's a responsible thing and a good
compromise that the committee achieved.
ACTING PRESIDENT MARCELLINO:
894
Senator Paterson.
SENATOR PATERSON: Mr. President,
if Senator LaValle would yield for a question.
SENATOR LAVALLE: But of course.
ACTING PRESIDENT MARCELLINO: He
yields.
SENATOR PATERSON: Senator, I was
going to ask you if this was consistent with
the terms served by SUNY board members. And
you answered that question in your
explanation.
My question is, what was the view
of the trustees of SUNY when this was
proposed, so I can get an idea if it was
consistent with the view of the Regents board
members themselves and the department.
SENATOR LAVALLE: I haven't -
Senator, that's a good question. I have not
received any input. We have not had a
memorandum in opposition to this.
But having said that, my sense is
that no one likes their terms reduced, even by
two years. And so I am sure that neither
those individuals that serve on a community
college board or the SUNY trustees -- because
895
if you're a SUNY trustee, you're saying to
yourself, Well, if the Legislature is reducing
the terms for community colleges, and our term
is seven years and the Regents are at five,
could the Legislature at some point in time
say maybe we should reduce the terms of the
SUNY trustees to five years.
That is mere conjecture on my part,
Senator. I do not have a crystal ball. But I
just am making these remarks as conjecture,
being consistent with what human nature might
be on the parts of people elsewhere in the
process.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: A final
question for Senator LaValle, if the Senator
yields.
ACTING PRESIDENT MEIER: Senator
LaValle, do you yield for a final question?
SENATOR LAVALLE: Sure.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Senator, if
I'm not mistaken, that perhaps the reason for
896
this whole discussion is that when there's
poorer performance on the part of any board
members or legislators or, I would assume,
members of the Board of Regents or the Board
of SUNY, that it comes later in the term.
People lose interest. Rather than resigning
or just recognizing that they don't have the
time or the energy to put into the tasks, they
just kind of are dormant in their service.
And so I would assume that the
reason that the Regents was truncated by half
and now a two-year reduction in these services
to accommodate the seven-year time factor,
which would make it consistent in all areas,
is basically because people who served in
those capacities found that many of their
colleagues, toward the end of their terms,
were not as active as they'd been in the
beginning.
Is that correct?
SENATOR LAVALLE: Senator, the
answer to that is yes.
And I think it's consistent with
individuals that serve on boards. Sometimes
people may run out of steam in the fifth year,
897
and they say, Well, I have a seven-year term,
and their colleagues on the board say, Well,
why don't you just hang around, it's another
two years, and just finish out your term.
In some cases, revisiting a term
energizes people. It gives them a second wind
because they say to themselves, you know, if
I'm going to serve another term, I need be
responsible, I need to come up with new ideas
and so forth. And some people find that new
energy and new enthusiasm.
Others, as you have indicated, when
they reach the end of their term simply say
they've had enough, they've done their
community service, and they will move on.
What we're really doing, we've done
this legislation before, is we're simply
saying that we want both the individuals to
ask themselves whether they still have the
enthusiasm for the job that they have been
appointed to or whether they should step down.
We want that process to take place not at the
end of nine years, but at the end of seven
years.
ACTING PRESIDENT MEIER: Read the
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last section.
THE SECRETARY: Section 3. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 59.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Kuhl, that completes the
controversial calendar.
SENATOR KUHL: Yes, Mr.
President. Is there any housekeeping at the
desk?
ACTING PRESIDENT MEIER: There is
no housekeeping, Senator.
SENATOR KUHL: Well, there being
no further business to come before the Senate,
at this time, Mr. President, I move we stand
adjourned until Monday, February 26th, at the
normal time, 3:00 p.m., with intervening days
to be legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, February 26th, at 3:00 p.m.,
899
intervening days being legislative days.
(Whereupon, at 12:30 p.m., the
Senate adjourned.)