Regular Session - March 5, 2001
1176
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 5, 2001
3:16 p.m.
REGULAR SESSION
SENATOR RAYMOND A. MEIER, Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT MEIER: The
Senate will come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance to the Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT MEIER: The
invocation will be offered by the Reverend
Peter G. Young.
REVEREND YOUNG: Let us pray.
Dear God, as we experience Your
winter wonderland, we gather with a prayer
that our New York State citizens will be safe
on our icy highways and able to find warmth
and comfort in their homes.
As we gather for our legislative
priorities, may we remember those that are
homeless as a result of their addiction and
mental illness.
O, God, You have blessed our great
Empire State with dedicated leadership that
are sensitive to the poor and to the needy.
We pray that You will bless them with strength
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and wisdom to serve our New York State
citizens. We ask You this in Your name now
and forever.
Amen.
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Friday, March 2nd, the Senate met pursuant to
adjournment. The Journal of Thursday,
March 1st, was read and approved. On motion,
Senate adjourned.
ACTING PRESIDENT MEIER: 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 Libous.
SENATOR LIBOUS: Thank you, Mr.
President. I'd like to place a sponsor star
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on Calendar Number 111.
ACTING PRESIDENT MEIER: So
ordered.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, I just give written notice, as
required by Rule XI, that I will move to amend
the rules by adding a new rule, XV, in
relation to the ethical standards of members,
officers, and employees of the Senate.
ACTING PRESIDENT MEIER: The
notice has been received and will be entered
in the Journal.
SENATOR DOLLINGER: Thank you.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President,
may we please take up resolution 687, by
Senator McGee, have it read in its entirety,
and move for its immediate documentation.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator McGee,
Legislative Resolution Number 687,
memorializing Governor George E. Pataki to
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proclaim April 22nd through 29th, 2001, as
Shaken Baby Syndrome Awareness Week in the
State of New York.
"WHEREAS, Government figures show
that more than one million children were
victims of abuse and neglect in 1997, causing
unspeakable pain and suffering to our most
vulnerable citizens; and
"WHEREAS, Of the children who are
victims of abuse and neglect, more than three
die each day in the United States. The rate
of child fatalities rose by 37 percent between
1985 and 1997, and children who were 3 years
old or younger accounted for 77 percent of the
fatalities; and
"WHEREAS, The leading cause of
death of abused children is head trauma,
including the trauma known as shaken baby
syndrome; and
"WHEREAS, Shaken baby syndrome,
which results from a caregiver's losing
control and shaking a baby, usually less than
one year of age, can cause loss of vision,
brain damage, paralysis, seizures, or death,
and is a totally preventable form of child
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abuse; and
"WHEREAS, An estimated 3,000
children are diagnosed with shaken baby
syndrome every year, and thousands more are
misdiagnosed and undetected; and
"WHEREAS, shaken baby syndrome
often causes permanent, irreparable brain
damage or death to an infant and may result in
more than $1 million in medical costs for the
care of a single disabled child during the
first few years of life; and
"WHEREAS, The most effective way to
end shaken baby syndrome is by preventing such
abuse, and it is clear that the minimal costs
of educational and preventive programs may
avert enormous medical and disability costs
and untold grief for many families; and
"WHEREAS, Prevention programs have
been shown to raise awareness and to provide
critically important information about shaken
baby syndrome to parents, caregivers, daycare
workers, child protection employees, law
enforcement personnel, health care
professionals, and legal representatives; and
"WHEREAS, Prevention of shaken baby
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syndrome is supported by groups such as the
Shaken Baby Alliance, an organization started
by three mothers of children who had been
diagnosed with shaken baby syndrome and whose
mission is to educate the general public and
professionals about the syndrome and to
increase support for victims and their
families in the health care and criminal
justice systems; and
"WHEREAS, a year 2000 survey by
Prevent Child Abuse America shows that half of
all Americans believe that child abuse and
neglect is the most important issue facing
this country, as compared to other public
health issues; now, therefore, be it be
"RESOLVED, That this Legislative
Body pause in its deliberations to memorialize
Governor George E. Pataki to proclaim
April 22-29, 2001, as Shaken Baby Syndrome
Awareness Week in the State of New York; and
be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to the Honorable George E. Pataki, Governor of
the State of New York."
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ACTING PRESIDENT MEIER: Senator
McGee.
SENATOR McGEE: Thank you, Mr.
President. I cannot explain to you or tell
you how important this resolution is in being
able to designate the week as Shaken Baby
Syndrome Week.
Certainly, listening to the
resolution, you can see that approximately
3,000 children are diagnosed with this shaken
baby syndrome every year, and thousands more
are misdiagnosed on it. Shaken baby syndrome
can cause permanent brain damage, can cause
death to a child.
And really, this is abuse to our -
and sometimes unneeded -- certainly never
needed, but abuse that they simply don't
realize, caretakers just simply don't realize.
And they'll pick up a small child and shake a
small child, in frustration, perhaps, or in
anger, because the baby has kept them up or
that type of thing. This is really extremely
important.
And earlier this year, this past
year, Assemblyman Hoyt and I did a program
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concerning -- with our hospitals in our area
on the shaken baby syndrome, and we have found
that the most important thing is to educate
the people, to educate the parents, to educate
the caretakers that you simply cannot shake a
child without expecting some sort of bad
damage to them.
So this is an act toward educating
those caretakers that this is to give safety
to the smallest, most fragile of the citizens
that we represent.
So I would like to take this
opportunity to open up this resolution for
sponsorship by the entire Senate, because it
is so extremely important.
So with that, let me say thank you
so much. And please, let's everyone educate
our caretakers on the fragility of our
children and the fact that shaking a baby is a
bad, bad thing to do.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
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nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Senator McGee,
you want to open up this resolution for
sponsorship on the floor?
And anyone that would not like to
have their name on it, would you mind
addressing the chair.
ACTING PRESIDENT MEIER: All
members will be placed on the resolution
unless they notify the chair to the contrary.
Senator Bruno.
SENATOR BRUNO: And, Mr.
President, I have a resolution at the desk. I
would ask that it be read in its entirety and
move for its immediate adoption.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: By Senator Bruno,
Legislative Resolution Number 686, expressing
sincerest sorrow upon the occasion of the
untimely death of legendary stock car driver
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Dale Earnhardt, Sr.
"WHEREAS, It is the custom of this
Legislative Body to publicly recognize the
passing of a famed American athlete whose
tragic and untimely death has pierced the
national consciousness; and
"WHEREAS Dale Earnhardt, Sr., the
legendary stock car driver who was known as
"The Intimidator" died in an accident during
the last lap of the Daytona 500 on Sunday,
February 18, 2001, at the age of 49; and
"WHEREAS, Dale Earnhardt, Sr., was
born on April 29, 1951, in Kannapolis, North
Carolina. As a young boy, he watched his
father, Ralph Earnhardt, race in stock car
events throughout the Southeast.
"Dale Earnhardt, Sr., developed a
love for the sport that would ultimately fuel
one of the most successful careers in the
history of motor sports. Dale Earnhardt, Sr.,
began racing hobby-class cars in and around
Kannapolis in his late teens; and
"WHEREAS, after the death of his
father in 1973, Dale Earnhardt, Sr., continued
to compete on the sportsmen's circuit,
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determined more than ever to be a victorious
driver, racing at speedways such as Hickory,
Concord, and Metrolina Fairgrounds; and
"WHEREAS, Dale Earnhardt, Sr.,
began his illustrious NASCAR Winston Cup
career in 1975; he won 7 Winston Cup Driving
Championships, six between 1986 and 1994,
frequently competing at our own Watkins Glen,
New York.
"Dale Earnhardt, Sr., driving the
familiar No. 3 black Chevrolet with his
unrelenting driving style, brought the sport
of stock car racing into the mainstream of
America and elevated NASCAR to a
multi-million-dollar merchandising industry;
and
"WHEREAS, In addition to being
stock car racing's most popular and celebrated
figure, Dale Earnhardt, Sr., was the
proprietor of Dale Earnhardt, Incorporated, a
three-car racing stable that houses the NASCAR
Winston Cup series team of Dale Earnhardt,
Jr., Steve Park, and Michael Waltrip.
"Dale Earnhardt, Sr., is survived
by hi wife, Teresa, his four children, Dale,
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Jr., Kerry, Kelley, and Taylor, and his
mother, Martha Earnhardt; and
"WHEREAS, Dale Earnhardt, Sr., the
king of his sport, will best be remembered as
a loving son, a devoted husband, a proud
father, and a trusted friend who brought
excitement and joy to colleagues, family,
friends, and millions of fans throughout his
extraordinary life and career; he will be
deeply missed and truly merits the grateful
tribute of this Legislative Body; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to express
sincerest sorrow upon the occasion of the
untimely death of legendary stock car driver
Dale Earnhardt, Sr.; and be it further
"RESOLVED, That copies of this
resolution, suitably engrossed, be transmitted
to the family of Dale Earnhardt, Sr."
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President,
thank you.
We just heard in a few minutes a
1189
resolution outlining the life and
accomplishments of Dale Earnhardt. And when
they talk about him as being a champion, a
person who excelled, he set records, I
believe, in his chosen field of competition
that are unequaled. And it is tragic, in his
untimely death, and it's a great, great loss.
I had the privilege and pleasure of
meeting Dale Earnhardt and having a picture
taken with him when I was the Grand Marshal at
the Global Crossing NASCAR race at Watkins
Glen in August. And I know when we talked
about approaching him, it was minutes before
this 200-lap race.
And the officials were truly
intimidated in going up to him because they
felt that, you know, the adrenaline was
flowing and he was in the mode to get in his
car, and they were going to stop him to ask
him to have a picture taken with the Grand
Marshal, me. And I was saying, having known
of his reputation, "Don't bother," you know.
"I'll wave to him or I'll do something like
that."
But he was going by us, and they
1190
stopped him and asked. And he stood there
with his helmet in his hand. And I got to
tell you, I have met a lot of people who are
impressive, who are outstanding, from
presidents to governors to senators. But this
man had a presence about him that just said a
lot of things.
And you can tell that this was a
competitive individual. When they called him
"The Intimidator," it related to his racing
style, in that he did everything and anything
that was appropriate to win. As you heard, he
had 76 wins, seven titles. He excelled. His
son follows, as he followed in his father's
footsteps.
So, you know, when we do
resolutions like this, when you think about
the passing of an individual that truly
changed the history of NASCAR racing, of
racing as such, you wonder how long it will be
before it gets back to normal. Because you
can't see a race or have a race anywhere but
they don't refer to Dale Earnhardt and the way
he competed and led his life.
I was a guest there with Senator
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Randy Kuhl, who was very, very gracious in
getting me there, and it was one of the most
impressive things I've done in my life, with
about 180,000 people in one place. And when
Dale Earnhardt was getting in his car and you
had people like him there, I couldn't help but
reflect, when I heard what happened, on just a
few months before -- a man so vibrant, alive,
competing, dedicated to what he was doing, and
then an untimely accident.
But he made his mark. And many of
us, when we do what we do, we would like to
know that we could excel with what we're
dedicated and committed to do as Dale
Earnhardt excelled.
So I would ask any of you that
would join in this resolution to please do so.
And if you don't want to for any reason, just
say so and speak up.
But I was amazed at the people that
indicated they couldn't go to work. These are
people who are supporting families. When they
heard of this accident, they were devastated;
they weren't the same for days. That was the
effect that this man and his presence had on
1192
people and on the sports world.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Any
member not wishing to be placed on the
resolution, notify the desk.
The question is on the resolution.
All those in favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we ask for an immediate meeting of the
Rules Committee in the Majority Conference
Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Rules Committee in
the Majority Conference Room.
SENATOR BRUNO: And can we at
this time take up the noncontroversial
calendar.
ACTING PRESIDENT MEIER: The
1193
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
44, by Senator Balboni, Senate Print 859A, an
act in relation to authorizing the Chabad
Lubavitch of Old Westbury.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
84, by Senator LaValle, Senate Print 1422, an
act to amend the General Municipal Law, in
relation to granting additional points.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
85, by Senator Rath, Senate Print 1454, an act
to amend the General Municipal Law, in
relation to alternative methods.
ACTING PRESIDENT MEIER: Read the
last section.
1194
THE SECRETARY: Section 3. This
act shall take effect on -
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
90, by Senator Goodman, Senate Print 687, an
act to amend the Transportation Law, in
relation to disclosure by common carriers.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2 -
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
104, by Senator DeFrancisco, Senate Print 436,
an act to amend the Criminal Procedure Law, in
relation to the collection of court-imposed
financial obligations.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
1195
108, by Senator Volker, Senate Print 1697, an
act to amend the Penal Law, in relation to
arson in the fifth degree.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
128, by Senator Stafford, Senate Print 1052,
an act to amend the Environmental Conservation
Law, in relation to nonhazardous municipal
landfill closure.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
142, by Senator Leibell, Senate Print 2337, an
act to authorize the Town of Yorktown to
establish.
ACTING PRESIDENT MEIER: There's
a home rule message at the desk.
SENATOR PATERSON: Lay it aside,
please.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
1196
155, by the Assembly Committee on Rules,
Assembly Print Number 4446, an act to amend
Chapter 416 of the Laws of 1998.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
Senator Bruno, that completes the
reading of the noncontroversial calendar.
SENATOR BRUNO: Can we now take
up the controversial reading, Mr. President.
ACTING PRESIDENT MEIER: The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
44, by Senator Balboni, Senate Print 859A, an
act in relation to authorizing the Chabad
Lubavitch of Old Westbury.
SENATOR PATERSON: Explanation.
SENATOR BRUNO: Lay it aside for
the day.
ACTING PRESIDENT MEIER: Lay the
bill aside for the day.
THE SECRETARY: Calendar Number
1197
84, by Senator LaValle, Senate Print 1422, an
act to amend the General Municipal Law, in
relation to granting additional points.
SENATOR PATERSON: Explanation,
please.
SENATOR BRUNO: Can we lay it
aside temporarily.
ACTING PRESIDENT MEIER: Lay the
bill aside temporarily.
THE SECRETARY: Calendar Number
85, by Senator Rath, Senate Print 1454, an act
to amend the General Municipal Law, in
relation to alternative methods.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Rath, an explanation has been requested of
Calendar 1454 by Senator Paterson.
SENATOR RATH: Thank you, Mr.
President.
This bill is a bill which will
permit municipal corporations to petition a
state agency when it is imposing a regulatory
mandate to approve an alternative method of
implementing that mandate.
1198
Now, we know that the flexibility
discussions have been long and broad
throughout so many parts of this government.
And frankly, for local governments, you know,
we holler about mandates and have been talking
about them for -- and I say "we" because I
come from local government, as so many of us
do in this building and in this house.
And the opportunity to have a
flexible range and to look to the state agency
when at all times the state will maintain
approval authority, to look to them for an
alternate way to accomplish the same goal
makes total good sense to me. The local
governments would be extremely anxious to have
it. Because, let's face it, local governments
all over the state are very different -
upstate, downstate, cities, towns, villages,
school districts, we have a whole range.
So I would hope that my colleagues
would keep in mind that they may be able to
save some money if they have an alternate way
of doing it. Very often the way the state
recommends or suggests or mandates, if you
will, is not always the least expensive. And
1199
local governments like to try to keep costs
down.
Thank you.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if Senator Rath would yield for a couple of
questions.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for a question?
SENATOR RATH: Surely.
SENATOR PATERSON: Senator,
conceptually I agree with this legislation,
particularly because of the different
configurations of local governments. However,
my question relates to the way in which these
alternatives would be carried out.
Could you give me an example of a
way in which the regulatory authority is
transferred to the local government and then
gets carried out differently? Because I don't
know that the full spirit of what's in your
legislation can be understood without some
concrete examples.
In other words, there must have
1200
been in your mind some situations where
specifically you knew what the alternatives
were. And I was just wondering if you'd share
them with us so I could get a better
understanding of it.
SENATOR RATH: I think, Senator,
it might take me a moment or two to draw up
some specific thoughts. But I think what
we're attempting to do, as you pointed out,
are accounting for the unique circumstances.
And it comes to my mind the kinds
of things that counties would do for states.
Let's just take snowplowing, for example.
When counties snowplow roads that are on the
state list of roads and they have an agreement
as to how the counties plow those roads when
they are state roads, but it's more logical
for the county to do it because they're going
across a state road or they have a very small
space, I think that that those regulations
might be very different if they were handled
in counties downstate than counties upstate.
Not that that's a specific one that
comes to mind because we had a problem with it
when I was in local government, but it's that
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kind of thing.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you,
Mr. President.
Actually, Senator Rath's example is
one that's actually carried out now. We do
that, the agencies provide for that because
they are sensitive to the different types of
state. But the example is still fitting,
because in those areas where the regulatory
agency has not already prescribed some action
in these cases, that would be a good example
of what it is.
I just have one final question for
Senator Rath if the Senator would yield.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for a question?
SENATOR RATH: Thank you, yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Though I was
tempted earlier, Mr. President, to ask her
what brought snowplows to her mind, I think
I'll figure that out for myself and will go
1202
forward and just ask: In the different
municipalities served by an agency, does this
law open itself up to, in a sense, some
favoritism where the agency might be more
responsive to different municipalities around
the state for which they have better
relationships and perhaps wouldn't accord the
same opportunity to municipalities in
different parts of the state where they might
not understand the problems as clearly?
SENATOR RATH: Senator Paterson,
I'm chuckling because, as I indicated, having
come from the county, I would think that there
are probably no areas around the state that
agencies would have a relationship that was
better in one place than in the other.
Because it always seems to me
whenever the state came in and wanted to
negotiate with the county as to what it is
that they thought we should be doing the way
they thought we should be doing it, it was
immediate confrontation. It was not
necessarily -- it was not necessarily easy.
And from what I've heard, that's
pretty traditional around the rest of the
1203
state.
ACTING PRESIDENT MEIER: Read the
last section.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Will the sponsor yield for a
couple of questions.
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield?
The sponsor yields.
SENATOR DOLLINGER: Senator, how
long a time would you anticipate it would take
the state agency to review the alternative
suggestion from the municipality?
SENATOR RATH: I would imagine
that inside the regulation that they were
debating there would be some particular
characteristics of what it was they were
attempting to accomplish that might foreclose
a year or a year and a half going by. I just
can't imagine that it would get put on the
back burner for very long without someone that
wanted definition coming forward.
Now, if we need to go back and
1204
relook at that, we certainly could amend this.
But at this point I didn't see any problem
with that. But your point is well taken.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will again
continue to yield.
ACTING PRESIDENT MEIER: Senator
Rath, do you continue to yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Senator, I
know you carry the other bills that talk about
mandate relief. And the crux of those bills
is to reduce the cost to local government.
Is there anything in this
legislation that suggests that that
alternative method has to reduce the cost to
the local community?
SENATOR RATH: That's another
good point, Senator Dollinger. And I believe
you came from local government also, did you
not?
SENATOR DOLLINGER: I did.
SENATOR RATH: You know that at
1205
every turn of the road, every nickel is being
watched.
And so although we're not holding
an incentive out there, what we are saying to
them is if you can do it a better way, present
that to us and we will approve it or not
approve it, if you can find a better way for
Monroe County or Erie County or whichever
county it might be to work through that
particular mandate.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Rath will yield just
to another question, please.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: One of the
issues with respect to many of the mandates
that come down from the State of New York to
our local communities is that they have an
impact on third parties. They can be mandates
about health coverage, they can be mandates
about Medicaid coverage, the scope of those.
1206
They can be mandates about providing, as we've
done through Family Health Plus and Child
Health Plus, certain ways of providing
treatment to particular individuals.
This bill, as I read it, says that
if there's a proposal, 45 days goes by and
they haven't heard from the State of New York,
they can implement the alternative. My
question to you is, what happens if the
implementation of that alternative changes the
types of services that third parties are going
to receive? Do you anticipate affecting their
rights to obtain government programs or to
obtain government money? Would we be
influencing the rights of third parties?
SENATOR RATH: Senator, I think
you're pointing to something that -- the
significance of health delivery, if that kind
of mandate is what you're envisioning, I'm in
a much less complicated mode, as I'm thinking
of the kinds of things -- mostly, obviously,
traffic and public safety kinds of things.
Because when third-party payors are
involved, I don't see us moving forward to try
to implement something like this with a 45-day
1207
clause in it, because there would be a whole
lot more that would be involved in it than a
simple relationship between the county and the
state in relation to a regulation the state
was imposing.
SENATOR DOLLINGER: Through you,
Mr. President, just one more question for
Senator Rath.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for one more question?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Senator, you
have included a provision here that allows a
municipality to sue the state if -- and it's
not quite clear. It says "the action by a
state agency on a petition shall be subject to
review pursuant to Article 78 of the Civil
Practice Law and Rules," which is our section
that is our general body of procedural law in
this state.
My question is, what's the standard
to be applied by the court if the courts are
called on to adjudicate this alternative
1208
method? And aren't you somewhat concerned
that the courts of this state will decide
whether a municipality is offered an
alternative to a mandate from us?
Isn't that going to inject the
courts into that unfortunate interstice
between one level and government and another,
and we'll have the courts acting as a referee
about whether our mandates were appropriate
and whether alternatives are also appropriate?
SENATOR RATH: Senator Dollinger,
I was just trying to review in my mind where
this bill came from, because I've had it for a
couple of years. And I remember it real
clearly. It was the Town of Tonawanda, in my
district -- you may be familiar with it.
SENATOR DOLLINGER: I am.
SENATOR RATH: And the supervisor
there asked that his department heads go back
and see just what they could do to reduce
costs by -- in an alternate fashion, providing
the same kind of service that the state had
mandated one way or the other.
And I'm not answering your question
yet, but I'm leading up to it. I'm leading up
1209
to it.
SENATOR DOLLINGER: Your answer
struck a nerve. That's okay.
SENATOR RATH: A respondent
chord. Okay, we'll have one more question,
then, after this. Maybe two.
The point being that they came back
with a chart and documentations showing around
$250,000 a year of savings that they could
make by alternately providing the services
that the state had mandated. That was how
this bill came into place.
And again, I don't see the weight
of the item of the issue on the courts. I
think we put that in there as a safeguard.
And, frankly, again, those of us from local
government would have loved it if we could
take the state to court and get our point
heard, because we very often thought -- and
remember, I'm chairman of the Local Government
Committee, so I am their advocate here.
I would think that we would love to
have our voice heard in court as local
government, saying, Look, if this big state is
saying we have to do this this way and we can
1210
do it and save our taxpayers a hundred
thousand dollars a year, I think that's -- I
think it's a fairly simple remedy.
SENATOR DOLLINGER: Thank you,
Mr. President. Just on the bill, briefly.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I also come
from local government, as does Senator Rath.
And I appreciate the fact that she is here
advocating on behalf of local government. I
think that's exactly what you should do in
your position as the chair of the Local
Government Committee.
I think, however, if you look at
this bill in detail -- we've obviously
approved this bill in the past. But if you
look at it carefully, I think Senator
Paterson's questions about how often would it
apply, what specific mandates would it reach
out to -- remember, the critical ingredient in
a mandate is that we have decided, in our
position as the plenary legislative power in
this state, that there are certain things we
can require our municipalities to do because
1211
they are our creations. They in some ways are
our sons and daughters.
And therefore, as their parent, we
can require them to do certain things which
may benefit other people, which may benefit
third parties -- schoolchildren, families that
need health care, families that need access to
dental care, a whole gamut of potential
resources.
And while, Senator Rath, I voted in
favor of this bill -- I'm going to vote for it
again -- I guess in studying it and taking a
more careful look at it, I would suggest a
couple of things. One, that you not allow it
to interfere with the rights of third parties
that we have created. That if we have a
beneficiary group in these mandates, that they
somehow have a right to challenge the
alternative in the event that it doesn't meet
their needs.
I would also suggest that if that's
our goal, is to benefit third parties, that
ought to be a consideration for the courts in
evaluating the viability of an alternative. I
don't mean to discourage innovation in the
1212
laboratories of our local communities, but I
think we have to be careful when we do it.
And lastly, Senator Rath -- as I
said, I voted in favor of this, I'm going to
vote in favor of it again. I would just
suggest, however, that you should establish a
very clear standard of when the courts can
intervene and say that either our mandate is
what they must comply with or their
alternative is what they can elect to comply
with.
Because I would suggest that
without a rigorous standard for when the
courts can intervene, we are going to inject
the courts of this state into a constant
battle between the parents, the State of
New York, and the child, our municipalities.
Which, as you know, come in varying sizes:
Some big children, some very small children,
some, like the town of Tonawanda, in-between
size.
And my suggestion is that without
clear standards to mediate those policy
disputes, which is really what they will be,
policy and cost analysis, I would suggest that
1213
that bill doesn't have enough of a standard to
tell the courts what to do. When we don't do
that, we end up in situations where the courts
either rule against us or they rule for us.
And when they rule for us without standards,
the local communities are upset. When they
rule against us without standards, we end up
upset.
I would just suggest that in
mediating this dispute between what the parent
tells the child and what the child wants to
hear from the parent, we need a far more
definite standard.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: I don't
know, this analogy of family I think got
carried a bit far.
But I too support the bill. I'd
just like to ask one question, if the sponsor
will yield.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for a question?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
1214
sponsor yields.
SENATOR OPPENHEIMER: My question
is without having more strict parameters of
what could come back to the state in the way
of definition, would we need to enlarge our
bodies here to determine the validity of each
of these claims? Because I can see a lot of
state governments claiming that they are
being, you know, put in an unfair position or
they -- it is costing them too much to do. In
other words, there might be a lot of
contention here.
SENATOR RATH: Are you being
what, Senator? I couldn't hear you.
SENATOR OPPENHEIMER: So I'm
questioning what would the state government be
doing in this instance. Would we have to
enlarge the size of our agency in order to
accomplish this?
SENATOR RATH: Oh, I see what
you're saying. In order to review? In order
to review? I would certainly hope not.
I wouldn't anticipate right up
front that that would happen. I think there
would be isolated efforts at this originally
1215
if this was put into place, because our local
governments would now have someone to go back
to if they thought that they could do this a
better way than they were told that they had
to do it. And I think that that's all that
local governments have looked for for a long
time.
And in the analogy of parent and
child, maybe the state knows the best but
maybe the state doesn't always know the best.
And I think sometimes all of us, as parents,
have known our children have said things to us
that we say: Hmm, I don't know to let them
know that I think they're right, but I think
they are.
And I'm hopeful that this would be
the beginning of that, because we need the
relationship between the state and the local
governments to be a good, strong, healthy
relationship. And I know your background, and
I know you believe that and have seen these
before.
Thank you, Senator.
SENATOR OPPENHEIMER: Thank you,
Senator.
1216
On the bill. I strongly favor this
bill because of a personal experience when I
was mayor of my community where the state
government was mandating things, and contrary
things. So that my village had won a grant to
try to control, through the eradication of the
larvae of insects, mosquitos in our title
wetlands.
And we had this grant, and I put -
this is sort of a silly story. We had put our
Department of Public Works people into the
water up to their knees, and they went around
spraying, because we had had a very difficult
problem with mosquitos. And we did eradicate
a large amount of the larvae, and the
mosquitos were much more contained that
spring.
Towards the end of summer, I had
come into my mayor's office the DEC, and they
were about ready to arrest me because the
Department of Health -- they were not aware
that the Department of Health had given us
this grant, and now the DEC was furious
because the food chain had been interrupted.
So I think if local governments had
1217
more opportunities to appeal to state
government, as a child might appeal to a
parent, that good sense can prevail and easier
methods can be found. And after all, the
parent is not always right.
So I will be supporting this bill.
ACTING PRESIDENT MEIER: Read the
last section.
Senator Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, if the sponsor
would yield.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for a question?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
Just by way of following up on
Senator Oppenheimer's point, are there any
provisions in this bill for ongoing monitoring
of these alternate implementations, to see if
in fact they are working out as the state
agency anticipated when it approved them?
SENATOR RATH: The bill does not
1218
have something of the sort you're talking
about. But frankly, I think that that might
be another piece of legislation. That if this
is successful and we see the local governments
picking up on it and getting into it and the
agencies coming back to us and saying, Wait a
minute, you know, we need to make sure that
there's an ongoing evaluation of the success
or the lack thereof, in relation to
implementing the regulation.
But I think that that might be in
the case of a lot of things.
SENATOR SCHNEIDERMAN: Thank you.
Through you, Mr. President, one additional
question.
ACTING PRESIDENT MEIER: Senator
Rath, do you yield for a question?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: Thank you.
I gather from your answer to an
earlier question that if the alternate
implementation costs more than following the
regular regulatory mandate, there are not
1219
additional funds provided through this
legislation for the municipality.
SENATOR RATH: No.
SENATOR SCHNEIDERMAN: If the
alternate implementation actually produces
savings, would the municipality get those or
would that stay with the state agency?
SENATOR RATH: No, that would
stay with the municipality. Because it is a
recommendation that can be accepted or can be
rejected by the state agency when the petition
is made by the local government.
SENATOR SCHNEIDERMAN: So that -
through you, Mr. President, so that -
ACTING PRESIDENT MEIER: Senator
Rath, do you continue to yield?
SENATOR RATH: Surely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR SCHNEIDERMAN: So that if
there was a million dollars allocated for a
child safety program in New York City and
New York City said, We can do it a different
way that only costs $500,000, New York City
would keep that additional $500,000?
1220
SENATOR RATH: I would believe
that would be between the agency and the City
of New York on that point.
SENATOR SCHNEIDERMAN: Thank you
very much.
Mr. President, on the bill.
ACTING PRESIDENT MEIER: Senator
Schneiderman, on the bill.
SENATOR SCHNEIDERMAN: I
appreciate very much the important issue that
this bill attempts to address. I am
concerned, though, that in situations,
particularly if there's a financial incentive
one way or the other for a local government to
go with an alternative method of
implementation, I think that we have to be
very conscious of the need for monitoring and
for really increased regulatory activity.
Unfortunately, a simple regulatory
mandate that mandates the same thing across
the board for all the local governments in the
state is easier to administer, it's easier to
monitor than a more complicated and creative
patchwork of different programs. We have seen
this very dramatically demonstrated in a lot
1221
of the alternative education programs that
have been tried out with alternative schools
and charter schools. And this is not true
just in New York, but across the country.
Some schools that look very promising as
educational alternatives in fact have not
produced the results, not provided the
education.
And we need ongoing monitoring of
those programs and the ability of the agency
to intervene if things aren't going well and
to make sure that the intended beneficiaries
of these programs actually are receiving the
services and in many cases the resources that
the program mandates.
So I think that a critical element
of making sure this succeeds is to recognize
the fact that we're going to -- this is moving
in the direction of bigger government. I'm
not saying it's a bad thing, but a more
complicated system requires more people to
administer, more investigation, more
monitoring. It's more creative. But we have
to recognize the problems that can occur,
especially if there's a financial incentive
1222
for a local government to cut corners and do
things more cheaply.
So I would urge that as we move
forward in addressing this issue -- and I'm
hopeful that we are going to actually get some
legal changes to try and address these
issues -- we acknowledge the fact that state
agencies will have an additional burden and
address that issue.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 3. This
act shall take effect on the 60th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Velella.
SENATOR VELELLA: Can we recall
Calendar 142.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 142.
1223
THE SECRETARY: Calendar Number
142, by Senator Leibell, Senate Print 2337, an
act to authorize the Town of Yorktown to
establish.
SENATOR DOLLINGER: Explanation.
ACTING PRESIDENT MEIER: Senator
Leibell, an explanation has been requested of
Calendar 142.
SENATOR LEIBELL: Thank you,
Mr. President.
This is an act that authorizes the
Town of Yorktown to establish an open space
and conservation district. This is a new,
unconsolidated law. We give the town the
statutory authority to establish this
district. It would further permit the Town of
Yorktown to raise revenue for such district
from a special tax levy of $30 per lot.
On November 7th of this last year,
the town held a referendum on the creation of
such an open space and conservation district
and the assessment of a $30 per lot flat rate
to finance the same, and such referendum
passed overwhelmingly in favor in every one of
the town's 34 election districts. Prior to
1224
the referendum, the town conducted a written
survey and public hearings which also
confirmed the desire of residents to take
these actions.
This bill would provide for
conservation and open space in a very
beautiful but fast-growing town. The bill has
received a unanimous home rule message from
the Town of Yorktown and would take effect
immediately. EPL has also issued a memo in
support of this legislation.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
President, will the sponsor yield for a couple
of questions.
ACTING PRESIDENT MEIER: Senator
Leibell, do you yield?
SENATOR LEIBELL: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Through you,
Mr. President, it's my understanding that
there was a referendum on this issue in
November. Could you tell me what the results
1225
of the referendum were, the percentages of the
votes?
SENATOR LEIBELL: Yes,
actually -- and I have some news clippings
here. This was -- these were votes that were
taken in seven communities throughout
Westchester County, northern Westchester
County, to get funds to develop land. The
other six towns, the ways they are raising the
funds did not require special legislation as
this. The one for the Town of Yorktown does,
which is why we're here today.
I think -- Senator Oppenheimer, I
think one of the towns is in your district, I
think, Irvington. That's not yours? No?
Well, it's -- we have seven towns.
As I say, this is from Yorktown and this came
out of that vote in November.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Leibell will
continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes, I do.
ACTING PRESIDENT MEIER: The
1226
sponsor yields.
SENATOR DOLLINGER: What was the
actual tally of votes in Yorktown? Do you
have an actual breakdown of what the vote was
in Yorktown itself?
SENATOR LEIBELL: You mean the
actual for and against?
SENATOR DOLLINGER: Yes, for and
against in percentage terms. Was this close
or was this a landslide?
SENATOR LEIBELL: Well, there
wasn't a recount. It was quite overwhelming.
I don't think we have the vote.
Oh, we have it?
Yes, Senator, 65 percent in
Yorktown, 35 opposed.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Leibell will
continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: So I
1227
understand this, Senator Leibell, is this a
conservation and open space district that
includes the entire town? Or is this a
district the geographical boundary of which is
included inside the town line?
SENATOR LEIBELL: This will be a
district that includes the -- it will have the
same district as the town district, as the
town lines.
SENATOR DOLLINGER: Again through
you, Mr. President, if Senator Leibell will
continue to yield. Because I obviously wasn't
clear with my question.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: My question
is, Senator Leibell, is this a district the
boundaries of which are the town boundaries,
or is this a specific section of the town that
they -
SENATOR LEIBELL: No, no. It is
the -- to answer your question, the boundaries
1228
are the same for the town and the district.
SENATOR DOLLINGER: Okay.
Through you, Mr. President, if Senator Leibell
will continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: So this in
essence allows -- will the town board act as
the board of trustees or the board for the
district, the commissioners for the district?
SENATOR LEIBELL: That's my
understanding.
SENATOR DOLLINGER: Okay. And
again through you, Mr. President, if Senator
Leibell will continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: So because
the district is coterminous with the town, the
1229
town could use money from this fund to buy
parcels all over the town to preserve pieces
of open space?
SENATOR LEIBELL: For open space,
environmentally sensitive pieces.
SENATOR DOLLINGER: Okay. And
through you, Mr. President, if Senator Leibell
will continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: This is a
per-lot taxation, which, as you properly point
out in the memo, is contrary to the ad valorem
method by which we usually tax real property.
My question is, could you just
explain to me the theory of why they did it
that way? Obviously the voters have approved
it, they've chosen to do it that way. Why did
they choose to do it by dollar size without
taking into account the value of the property?
A million-dollar house and a $100,000 house
are in essence paying the same amount.
1230
SENATOR LEIBELL: The other towns
did it in different ways, different -- a
variety of fashions, the other six towns.
But as I noted in my earlier
comments, the town did a survey and they held
a hearing. And based on that information and
intake they got back from the constituents,
this is the way that they wished to go forward
in order to acquire these properties.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Leibell will
continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you yield?
SENATOR LEIBELL: Yeah.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: When the
referendum was held in November, was it held
to create the district and to finance it with
this set -
SENATOR LEIBELL: Yes. Yes.
SENATOR DOLLINGER: -- set dollar
per property valuation assessed? Interesting.
A final question through you,
1231
Mr. President, to Senator Leibell.
ACTING PRESIDENT MEIER: Senator
Leibell, do you still yield?
SENATOR LEIBELL: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Do you have
any other instances in New York State in which
we have varied the ad valorem property tax
into a per-parcel property tax valuation?
And, as a dovetail question to that, is it
constitutionally acceptable to do it this way,
when I believe isn't it the state constitution
that requires ad valorem taxation?
SENATOR LEIBELL: In a nutshell,
we feel it's constitutional.
Would you like me to read you
the -
SENATOR DOLLINGER: I would
suggest, Senator Leibell, if I got any other
answer to that question, you and I wouldn't be
here.
SENATOR LEIBELL: Yeah. Let me
just -- if you'd like, I can read you the
question the way it was phrased on the ballot.
1232
And it was: "Should the Town of Yorktown
create a dedicated open space and conservation
district subject to New York State enabling
legislation that would be funded through an
annual per-lot charge of $30?"
SENATOR DOLLINGER: Just one
final question, since this raises another
issue.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Through you,
Mr. President, the $30 per-lot assessment will
be an annual assessment that will continue to
replenish this fund over time?
SENATOR LEIBELL: Yes.
SENATOR DOLLINGER: And how much,
approximately, is it supposed to raise? About
$350,000?
SENATOR LEIBELL: Approximately
$396,000.
SENATOR DOLLINGER: Senator
Oppenheimer was whispering the same number in
1233
my ear.
Mr. President, just on the bill,
ever so briefly.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I actually
commend Senator Leibell, whose reputation in
the environmental community is well-known, for
this bill.
I think or I hope that this bill is
a sign of the future in New York, that this
kind of alternative to taxation that would say
to a community since everyone benefits through
the preservation of environmentally sensitive
properties, that to some extent it is as much
a value to the person with a smaller house as
it is to a bigger house to be able to preserve
these kinds of properties.
And it seems to me that if a
community freely chooses to adopt an equalized
property or per-lot assessment, regardless of
its value, that's the kind of innovation
which, in my discussion earlier with Senator
Rath when she talked about alternative ways of
doing things, it seems to me that the Town of
1234
Yorktown has found a good alternative way to
do it that achieves the right goal.
The only other consideration I have
is something that doesn't really relate to the
bill as much as to the procedure. It's just
my hope that these kinds of innovations that
occur in communities represented by
Republicans in this house, if other
communities come forward with similar ideas,
alternatives that have the same merits as
Senator Leibell's, that they'll find a way to
get access to this floor too.
It may not be through motions to
discharge, but we hope it comes through the
normal channels at the latter part of this
session, that these kinds of ideas that are I
think perhaps even cutting-edge, Senator
Leibell, will find a way to make it to this
floor again in the future.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If Senator
Leibell will yield for a question.
ACTING PRESIDENT MEIER: Senator
Leibell, do you yield for a question?
1235
SENATOR LEIBELL: Absolutely.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR OPPENHEIMER: This is
very creative. And I applaud the people of
Yorktown. I find it very, very interesting
because it's different. It's unique.
I know that in our county we have
about seven communities, I think, that have
now voted to create a fund to purchase open
space and sensitive land. Do you know if this
has been discussed in any of those other
communities, or did they go with ad valorem?
SENATOR LEIBELL: Senator, my
understanding is that -- and I was there, I
was involved. And in northern Westchester,
this achieved across-the-board bipartisan
support.
And probably to answer somewhat
Senator Dollinger's inquiry before, this is
carried in the other house by Assemblywoman
Sandy Galef. We have both worked on this
legislation together.
As to the actual mechanics, each
town chose the mechanics that their
1236
constituents wished to see. This was unique
to Yorktown. It's not representative of the
way the other towns wish to fund the open
space acquisition.
But having said that, all of these
towns, these seven towns throughout northern
Westchester, wish to accomplish the same end.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you,
Senator.
Just on the bill.
ACTING PRESIDENT MEIER: Senator
Oppenheimer, on the bill.
SENATOR OPPENHEIMER: This is
just a terrific bill. And we in our county
happen to be particularly sensitive to
environmental issues and very supportive of
these issues; indeed, very supportive with our
own dollars.
And being mindful of that, we have
had several communities go to votes on should
we spend our taxpayer money to purchase open
space. And most of the communities have been
upcounty; several have been -- a couple have
1237
been downcounty in Westchester.
And it's a shame that this concept
did not come around earlier, because many of
the downcounty communities have absolutely no
open space left. And at this juncture, it's
like the horse has left the barn and there's
not very much that can be done. And were this
concept around earlier, even a decade ago, we
would have been so much better off in the
southern part of Westchester than we are
today.
And I applaud the northern part of
our county where so many communities are
saying this is important enough to us that we
are willing to put our money behind our
mouths. And it's a fine bill. And I'm very
pleased to support it.
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Mr. President,
will the sponsor yield for a question?
ACTING PRESIDENT MEIER: Senator
Leibell, do you yield for a question or two?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
1238
sponsor yields.
SENATOR GENTILE: Senator, I'm
just a little bit confused as to the actual
operation of what is being created here.
You had indicated -- the Senator
had indicated that the district, this open
space and conservation district, would be
coterminous with the entire town of Yorktown.
Am I correct about that, Senator?
SENATOR LEIBELL: Yes.
SENATOR GENTILE: Okay. If the
Senator would continue to yield, I have
additional questions.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Mm-hmm. Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: The question I
have, Senator, is that once these open spaces
are purchased by the Town of Yorktown, are
they considered to be parkland at that point,
once these open spaces are purchased?
SENATOR LEIBELL: They would be
properties of the district. Now -- I'm sorry.
1239
I think you could describe them as parkland,
possibly. Maybe on some occasions they won't
be. But they are meant to be taken and to be
nondeveloped.
SENATOR GENTILE: If the sponsor
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: That's right.
Only parkland if they're actually dedicated as
such. Or actually used.
SENATOR GENTILE: Will the
sponsor continue to yield?
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yeah.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: So then,
Senator, based on that response, I'm not sure
what the purchasing of the open space would be
considered under the creation of this
district.
SENATOR LEIBELL: Well, Senator,
it would be exactly that. It would be open
1240
space. If you mean it as a word of art,
parkland. As was noted, if they're used that
way and dedicated with that purpose, they
would be parkland.
Otherwise, they are meant to be
taken out of the possibility for development
and to be owned by that district.
SENATOR GENTILE: If the Senator
would continue to yield.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: Well, Senator,
then under what auspices would this land be
controlled? Would it be the town park
service, would it be the county department of
forestry? Under what auspices -
SENATOR LEIBELL: It would be
controlled by that district, the district
that's created.
SENATOR GENTILE: It would be
controlled by the conservation and open space
district?
1241
SENATOR LEIBELL: Yes.
SENATOR GENTILE: If the Senator
would continue to yield.
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR GENTILE: So, Senator, as
we know, we create the open spaces and the
conservation district, but sometime down in
the future, 10, 20, 30, 40 years from now,
when circumstances change and the leadership
changes in that area, and should there be a
need or a desire to sell off part of that land
that now has been created as an open space,
would it be under this legislation a
requirement, as it is a requirement for
parkland anywhere in the state, that in order
for parkland -- to alienate parkland it must
first get the approval of the State
Legislature?
SENATOR LEIBELL: We do not have
a copy of the plan. The plan will come out
from them after we pass this enabling
legislation. And based on that, we'd be able
to give you better answers on that.
1242
But the goal is, as I've said, to
take land and to permanently preserve it so it
will not be developed.
SENATOR GENTILE: If the Senator
will continue to yield for -
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
SENATOR LEIBELL: Yes.
SENATOR GENTILE: I suppose,
Senator, my question is currently, the current
law in the state is that any parkland, any
alienation of parkland must first receive the
approval of the State Legislature. In this
instance, if for some reason in the future
some of this open land, the desire was to
alienate it and sell it off, that alienation,
would that alienation need the approval of the
State Legislature?
SENATOR LEIBELL: If it were used
and dedicated as parkland, it would require
our action to do something different with it.
SENATOR GENTILE: But -- if the
Senator would continue to yield further.
ACTING PRESIDENT MEIER: Senator
Leibell, do you continue to yield?
1243
SENATOR LEIBELL: Yes.
SENATOR GENTILE: But you're
saying in this instance, in this instance it
may or may not be designated as parkland?
SENATOR LEIBELL: That's correct.
SENATOR GENTILE: Under this
district.
SENATOR LEIBELL: That's correct.
SENATOR GENTILE: On the bill,
Mr. President. Thank you, Senator.
ACTING PRESIDENT MEIER: Senator
Gentile, on the bill.
SENATOR GENTILE: I too applaud
this legislation and the efforts by Senator
Leibell to create the open space and
conservation district, or at least make the
way so that the voters can have the district
as they so desire.
The only concern I have is the
alienation in some future time of some of this
open space. And I would suggest that if not
in this legislation, in some future
legislation we make it clear that any open
space that has been created in this
district -- or any district, for that
1244
matter -- we make it clear that open space is
important to this state, parkland is important
to this state, open space be designated as
parkland and therefore come under the statute,
that any alienation of parkland first receive
the approval of the State Legislature.
I think in that way there will be
no question as to whether land is designated
parkland or not and whether or not it meets
the approval of the State Legislature. We
need to have the approval of the State
Legislature in any alienation.
And in your case, in the case of
Yorktown, I think it holds whether or not it
is considered open land or parkland.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT MEIER: The bill
1245
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar 155, by
Senator Alesi.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar 155.
THE SECRETARY: Calendar Number
155, by the Assembly Committee on Rules,
Assembly Print Number 4446, an act to amend
Chapter 416 of the Laws of 1998 amending the
State Administrative Procedure Act.
SENATOR DOLLINGER: Explanation,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Alesi, an explanation has been requested.
SENATOR ALESI: Thank you, Mr.
President.
This bill makes permanent the
comprehensive exemption for filing notices for
telephone companies and makes it retroactive
to March of 2001.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Yes, Mr.
1246
President, if the sponsor will yield just to a
couple of questions.
ACTING PRESIDENT MEIER: Senator,
will you yield for a question?
SENATOR ALESI: I will yield,
yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Thank you.
Through you, Mr. President, we have
had an exemption in effect for these kinds of
tariff notices for how long?
SENATOR ALESI: For a number of
different variations on the exemption, since
1991. Most recently in 1997, which you
supported, Senator Dollinger.
SENATOR DOLLINGER: Through you,
Mr. President, if the sponsor will continue to
yield.
SENATOR ALESI: I'll be happy to.
SENATOR DOLLINGER: Thank you,
Mr. President.
As I understand it, this simply -
does this do away with the notice requirement?
Does it still require some public comment
1247
period before these changes occur?
SENATOR ALESI: No, Senator, the
bill clearly states that it will make
permanent the existing comprehensive
exemption. The comprehensive exemption itself
says that because there is a SAPA requirement
and a Public Service Commission requirement,
that there's no need to duplicate the
services.
And in fact, the Public Service
Commission requirement is more friendly to the
process, enabling telecommunications companies
to get their services to market in a more
expeditious way.
SENATOR DOLLINGER: Through you
again, Mr. President. One final question may
clarify all of this.
ACTING PRESIDENT MEIER: Senator
Alesi, do you continue to yield?
SENATOR ALESI: For one last
question, I'll be happy to yield.
SENATOR DOLLINGER: So what this
does is this simply removes the duplication of
the notice under the State Administrative
Procedure Act as well as the notice of the
1248
PSC, and consumers who are concerned about
their ability to publicly comment on the rate
would be able to adhere to the PSC process?
SENATOR ALESI: In response to
the question, Mr. President, it removes the
duplication, it makes it permanent, it makes
it retroactive to March 1st of 2001, in view
of the fact that the Assembly has already
passed this.
SENATOR DOLLINGER: Again through
you, Mr. President, just so I make sure that
the -
SENATOR ALESI: Uh-uh, uh-uh,
uh-uh.
ACTING PRESIDENT MEIER: Are you
asking Senator Alesi to yield?
SENATOR DOLLINGER: Yes, I am,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Alesi, do you yield?
SENATOR ALESI: I'll yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Again, just
so I'm sure. The PSC notification of the
1249
public comment period would still apply? This
doesn't change that in any way; is that
correct?
SENATOR ALESI: You're correct.
SENATOR DOLLINGER: No further
questions from me, Mr. President.
ACTING PRESIDENT MEIER: Read the
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, 52. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT MEIER: 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
Rules Committee at the desk. I ask that it be
read.
ACTING PRESIDENT MEIER: Reports
of standing committees.
1250
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 2963, by Senator Leibell, an act
to authorize the Town of Yorktown to fund
certain sewer districts.
SENATOR SKELOS: Mr. President,
move to accept the report of the Rules
Committee.
ACTING PRESIDENT MEIER: The
question is on the motion to accept the report
of the Rules Committee. All those in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
report of the Rules Committee is accepted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
may we please take up the Rules report at this
time.
ACTING PRESIDENT MEIER: The
1251
Secretary will read.
THE SECRETARY: Calendar Number
192, by Senator Leibell, Senate Print 2963, an
act to authorize the Town of Yorktown to fund
certain sewer districts.
SENATOR STACHOWSKI: Explanation.
ACTING PRESIDENT MEIER: Senator
Leibell, an explanation has been requested by
Senator Stachowski.
SENATOR LEIBELL: Thank you,
Mr. President.
This bill would enact a new,
unconsolidated law to provide the Town of
Yorktown, in Westchester County, with the
statutory authority to continue their sewer
district bonding repayment schedule in
accordance to a predetermined fiscal plan.
This bill has been requested by the
town after consultation with the State
Comptroller, so as not to impose an undue tax
burden on town or sewer district residents
while still providing for important sewer
district improvements. The sewer districts
involved would include the Mohegan East sewer
district, the Mohegan West sewer district, the
1252
Chalet sewer district, and the Clover sewer
district.
Pursuant to the terms of this bill,
all repayments by the sewer districts would be
completed by the year 2009.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: Would the
Senator yield for a question?
ACTING PRESIDENT MEIER: Senator,
do you yield for a question?
SENATOR LEIBELL: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STACHOWSKI: I know in
Rules it was said that we needed to get this
done right away because the town had paid the
money and now wanted to get the money back.
The question I have is the
repayment of this, will this only be on the
people that live in the sewer districts or
will the whole town share in this debt or does
the whole town share in this debt now and it
will -- because in most areas, the sewer
district, if you live in that district, you
1253
pay for it; if you don't, you don't.
SENATOR LEIBELL: The reason for
this legislation is that this was money that
was put forward by the town for the benefit of
those sewer districts, and this is now a
method of allowing for the repayment.
What I should explain to you is
that in this area, and through much of the
areas, many of the areas in Westchester County
that are in the New York City Watershed, these
sewer districts are necessary and critically
important to the health and well-being not
only of the residents who live there but for
those in the New York City Watershed. They
are very, very expensive to do. And in fact,
you may be servicing very few families, as is
the case with these districts.
So the town put the money forward,
as they have attempted to do in the past, and
now is a -- the town sends out the tax bills
in March. And without these, the tax bills
would be very different if they are not able
to go through this elongated repayment
schedule.
ACTING PRESIDENT MEIER: Senator
1254
Lachman.
SENATOR LACHMAN: Will the
distinguished Senator from Yorktown yield for
a question, Mr. Chairman.
ACTING PRESIDENT MEIER: Senator
Leibell, do you yield?
SENATOR LEIBELL: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR LEIBELL: And I want to
make sure you understand, this is not a sewer
district to go in the open space that I was
just talking about. I want to clarify that.
(Laughter.)
SENATOR LACHMAN: Okay. Why
didn't the sewer districts, or the
encompassing entity, issue bonds for this
rather than going to the general funds -- have
an advance on the general funds of the area?
SENATOR LEIBELL: The goal was to
attempt to minimize the cost.
SENATOR LACHMAN: Itemize?
SENATOR LEIBELL: Minimize the
cost for these residents.
And to do that, they borrowed the
1255
money from the town at large. Which you can
do. You can transfer funds within -- from the
town on a loan basis. The difference is those
monies have to be paid back within that year.
The town was not really aware of
that. And the burden is too great if they
don't stretch out this payment period for the
monies to go back to the general revenues of
the town.
SENATOR LACHMAN: And that's why
an advance was made rather than -
Mr. Chairman, is that why the advance was
made?
SENATOR LEIBELL: Yes, that's
correct.
SENATOR LACHMAN: Thank you.
ACTING PRESIDENT MEIER: There is
a home rule message at the desk.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
1256
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
would you please call up Calendar Number 104,
by Senator DeFrancisco.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 104.
THE SECRETARY: Calendar Number
104, by Senator DeFrancisco, Senate Print 436,
an act to amend the Criminal Procedure Law, in
relation to the collection of court-imposed
financial obligations.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
DeFrancisco, Senator Paterson has requested an
explanation.
SENATOR DeFRANCISCO: A court,
upon sentencing, can sentence an individual to
a fine which would include a surcharge, a
mandatory surcharge that the Legislature has
imposed for various reasons, or it can require
restitution. And the law that is in existence
presently allows for the district attorney -
requires the district attorney, if the court
1257
so orders, to prepare such an order and file
it.
The problem is very rarely do these
fines or these orders get enforced, because
the only person allowed to do that would be
the district attorney of that county. And in
most counties, the district attorneys don't
have the civil collection priorities. They'd
be, rather, doing prosecutions.
What this bill does is that if
there's a court-ordered fine or restitution,
it allows for others to actually enforce the
judgment, the court order that was reduced to
a judgment. And those others, according to
this bill, would be the county representative,
such as the county attorney; the victim, if
it's restitution; and also, I believe, the -
there's one other group I can't remember right
now.
But I think that's -- that's the
intent of it. And I believe last year it
passed 61 to nothing.
SENATOR PATERSON: The
corporation counsel of that municipality -
Mr. President, if the Senator would yield.
1258
ACTING PRESIDENT MEIER: Senator,
do you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Would that be
the third entity?
SENATOR DeFRANCISCO: Yes. I'm
sorry, you're correct. Thank you.
SENATOR PATERSON: So actually -
if the Senator will continue to yield.
SENATOR DeFRANCISCO: Yes.
SENATOR PATERSON: So actually
what's happening now is that we're really just
treating the issue as a civil matter. And
even though the -- because the district
attorney's impact, by getting involved, was
really civil in the first place.
SENATOR DeFRANCISCO: That's
correct.
SENATOR PATERSON: Thank you,
Mr. President.
ACTING PRESIDENT McGEE: Senator
Gentile.
SENATOR GENTILE: If the sponsor
1259
would yield for just a question.
ACTING PRESIDENT McGEE: Does the
sponsor yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT McGEE: Thank
you.
SENATOR GENTILE: I'm curious as
to the actual practicality of this.
Authorizing other units of the municipality to
enforce the money judgments that may be
imposed by a district attorney is all well and
good. But practically, how does the other -
how do the other aspects of that municipality
pick up on that judgment and carry through the
enforcement?
SENATOR DeFRANCISCO: Well, it
could either be the county attorney, as far as
the municipality is concerned -- at which
time, if there's a fine that's supposed to be
paid to a certain entity that the judge would
state in the court order, it would allow the
county attorney to process that -- or
restitution. It might be restitution to a
county for some damage that occurred in the
course of the crime.
1260
It also allows victims -- many
times a victim may have a restitution order
and they never see it enforced, for whatever
reason that may be. They would have an
incentive to collect on that judgment if the
restitution was significant enough.
SENATOR GENTILE: If the sponsor
would yield for one more question.
ACTING PRESIDENT McGEE: Will the
sponsor yield for one more question?
SENATOR DeFRANCISCO: Yes.
SENATOR GENTILE: So in effect,
the judge imposing a fine or some type of
money judgment would put the case on the
calendar once again and -
SENATOR DeFRANCISCO: No, no, no,
I'm sorry. What would happen is once the
court order was signed, it would be filed with
the county clerk and become a part of the
judgment roll. So it would be a judgment.
Just like if you sued somebody and you got a
judgment, you filed it, you've got ten years
to bring some type of enforcement action.
This is an enforcement action on the judgment.
SENATOR GENTILE: Thank you.
1261
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
would you please call up Senator Stafford's
bill, Calendar 128.
ACTING PRESIDENT McGEE: Bill
128. The Secretary will read.
THE SECRETARY: Calendar Number
128, by Senator Stafford, Senate Print Number
1052, an act to amend the Environmental
Conservation Law, in relation to nonhazardous
municipal landfill closure project.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Stafford, an explanation is requested.
SENATOR STAFFORD: Thank you.
1262
Madam President, this would simply allow
municipalities to be reimbursed when they
relied upon the law and they went ahead and
started really before the actual date was set
for reimbursement.
And this bill passed June 21st,
1994, without a single no vote. It passed on
June 21 again, in 1995, without a single no
vote. Then it passed on February 6, 1996,
without a single no vote, February 3, 1997,
without a no vote, February 23, 1998, without
a no vote, February 8, 1999, without a no
vote, and February 28, 2000, without a no
vote.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Here on
March the 5th of 2001, I'd like to know if the
Senator would yield for a few questions.
ACTING PRESIDENT McGEE: Senator
Stafford, will you yield for a few questions?
SENATOR STAFFORD: Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR STAFFORD: This is March
1263
what, now?
(Laughter.)
SENATOR PATERSON: Senator, I was
wondering to what extent this legislation
would have an impact on the Bond Act that's
been passed since this legislation was passing
here in the Senate.
SENATOR STAFFORD: Well, I think
it might possibly be involved with the Bond
Act. But of course when we passed the Bond
Act, we didn't know exactly what projects
would be involved.
SENATOR PATERSON: Right. Mr.
President, if this bill passed on
February 21st of 1994, February 21st of 1995,
February 6th of 1996, February 3rd of 1997,
February 23rd of 1998, February 8th of 1999,
and February 28th of 2000 -- if I got that
right, Senator -
SENATOR STAFFORD: If you didn't
read that, I'm leaving.
SENATOR PATERSON: My question
is, why has it not passed the Assembly?
SENATOR STAFFORD: Well, of
course I find that there are many vagaries and
1264
vicissitudes with which we have to deal. And
I find often that sometimes, even when you
raise the issues and balance the equities, you
don't quite find the responsiveness that you
would expect.
But we just keep working and hope
that the Speaker will get the correct advice.
I'm sure it's his staff that's not doing the
job over there. And I'm sure that maybe they
will find that they're not really as aware as
they should be.
SENATOR PATERSON: Mr. President,
if Senator Stafford would -- Madam President,
excuse me, if Senator Stafford would yield for
another question.
ACTING PRESIDENT McGEE: Senator
Stafford, do you continue to yield?
SENATOR STAFFORD: By all means.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: Perhaps we
might be able to interest the Assembly in this
bill. One of the things that I think might be
an issue is the number of landfills and
perhaps their general location. If you could
1265
tell us that, maybe that would be helpful.
SENATOR STAFFORD: Well, it of
course is sometimes hard to get exact details.
But we feel really, again, on a serious note,
any municipality that relied upon the law and
they were of the opinion that they were going
to get assistance, we think they should.
And, yes, they were encouraged. I
have many. It's a very, very serious
situation. And I think that their reliance
really is what we should really work with.
SENATOR PATERSON: Madam
President, I want to thank Senator Stafford
for his responsiveness, as he's always been
whenever I inquire of matters of him on the
floor, and say on the bill that perhaps the -
ACTING PRESIDENT McGEE: Senator
Paterson, on the bill.
SENATOR PATERSON: -- perhaps the
comprehensive discussion we've had on this
legislation may change its future here on
March the 5th, 2001.
I rest.
ACTING PRESIDENT McGEE: Read the
last section.
1266
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Skelos.
SENATOR SKELOS: Madam President,
if you could call up Calendar Number 84, by
Senator LaValle.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
84, by Senator LaValle, Senate Print 1422, an
act to amend the General Municipal Law, in
relation to granting additional points.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
LaValle, an explanation has been requested.
SENATOR LAVALLE: Thank you,
Madam President.
This bill passed 59 to zero last
year. This bill would clarify and add one
1267
area that volunteer firefighters, in meeting
the 50 points that they must secure in order
to receive the award -- by adding the teaching
of fire prevention classes in order to meet
their 50-point commitment.
And some of the things that they
must already do, of course, are fighting
fires, dealing with things around the
firehouse, marching in parades. And what
we're adding to all of those things that are
listed in the service award bill are allowing
them to gain points, within the 50 required
points, teaching fire prevention classes.
That's it, Madam President.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, that certainly sounds, to me,
pretty straightforward. And the only question
I have, if Senator LaValle would yield -
SENATOR LAVALLE: Yes, I'd be
delighted to.
SENATOR PATERSON: Senator -- I
don't know if he's delighted by my question or
delighted by the fact that there will be one
1268
question.
I just wanted to ask what NYCOM and
some of the other municipalities feel about
this, being that this was not included in the
original list of methods in which the
volunteer firefighters make points. Was it
simply an omission, or was there a reason that
they had for it not being the case that they
now have chosen to take a second look at it?
SENATOR LAVALLE: Senator, this
is somewhat a similar question that Senator
Dollinger asked me last year.
And certainly, as you know, the
world evolves year by year. And as the
volunteer fire service looks at what their
members are doing, they make requests of the
Legislature to add different things that the
volunteer fireperson would do in meeting their
50-point requirement.
Now, I can't believe that anyone
would be opposed to this, because we are not
shrinking the number of points, we're not
broadening the number of points, but we're
just saying within the same 50 points that you
are using to make the service award, we are
1269
merely adding another item that they can do.
And indeed, Senator, a year or five
years from now there may be other items that
we might want to amend the legislation to
actually add as part of the duties and
responsibilities in earning the 50 points,
that we can come up with something else.
So I can't believe that anyone
would have a problem with this, because it's
cost-neutral. We're not changing the number
of points. We're not really -- and we're not
adding something that is offensive. We're
adding something that is really good, because
we want more volunteers to go out to our
schools, to go out to nonprofit groups and
talk about fire prevention.
So it's really a good thing, and
that's what this is all about, to really spur
people to go out and do good things in the
community, talking about fire prevention.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT McGEE: Call the
1270
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Bonacic.
SENATOR BONACIC: Thank you,
Madam President. Can we now call up Calendar
108, please.
ACTING PRESIDENT McGEE: The
Secretary will read.
THE SECRETARY: Calendar Number
108, by Senator Volker, Senate Print 1697, an
act to amend the Penal Law, in relation to
arson in the fifth degree.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: Senator
Volker, an explanation has been requested.
SENATOR VOLKER: Madam President,
I apologize, I was outside trying to work with
the Assembly on some bills.
This bill is a bill that was
suggested to us by some downstate law
enforcement group, I believe by the Metro
Police people and Suffolk County Detectives
1271
Association. And it came out of a series of
incidents involved in Dumpster fires.
And what happened is there's been a
great deal, apparently, of malicious mischief,
which is what the charge sometimes is. And
they've had difficulty getting convictions
when these Dumpster fires in particular are
deliberately started.
And this bill was designed
specifically in that area. Initially, it was
talked about to become a Class E felony
because of the -- frankly, the problem with
New York City where nobody pays any attention,
it seems like, unless it's a felony.
But the agreement was that we would
make this arson in the fifth degree, which is
a Class E misdemeanor. And in other words,
that you would prosecute somebody under the
arson statute when the act results in damage
to property.
Most of the time this would be
disorderly conduct or criminal mischief, which
in most cases would be a violation. And this
would make it a Class E misdemeanor.
SENATOR PATERSON: Madam
1272
President.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Would Senator
Volker yield for a question.
ACTING PRESIDENT McGEE: Senator
Volker, will you yield?
SENATOR VOLKER: Sure.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: Senator, my
understanding of this bill is that the
difference between arson in the fifth degree
and malicious mischief, which is the way it's
prosecuted now, is that in a malicious
mischief case it didn't completely fulfill the
danger that a Class 5 arson would, because in
any situation involving fire, there's the
fear, particularly in those Dumpster
situations, of it spreading.
So that the malicious mischief
standard wasn't really communicating to juries
or to judges the danger that this person was
causing.
SENATOR VOLKER: That is a better
1273
explanation than I made of the bill. Yes.
SENATOR PATERSON: Thank you,
Senator Volker.
Madam President, if the Senator
would continue to yield.
ACTING PRESIDENT McGEE: Senator
Volker -
SENATOR VOLKER: Yes.
SENATOR PATERSON: Now, just a
technical clarification. It's a Class E
misdemeanor, or is that -
SENATOR VOLKER: No, no, no.
SENATOR PATERSON: -- the Class E
felony that becomes a misdemeanor?
SENATOR VOLKER: No, no. It's a
Class A misdemeanor.
SENATOR PATERSON: I see.
SENATOR VOLKER: I was referring
initially that the initial discussions we had,
it was requested it be a Class E felony. But
we finally agreed -- well, in part because the
Assembly had great problems with that -- that
we would -- in effect, what we're doing here
is raising the general level of this kind of
action actually from a violation to a Class A
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misdemeanor, is what we're doing. Because
normally what they end up with is they can't
get anything more than a violation for this
kind of action. And this way now, you would
make it a Class A misdemeanor.
The E felony was the initial
discussion, which didn't happen.
ACTING PRESIDENT McGEE: Senator
Paterson.
SENATOR PATERSON: Madam
President, on the bill.
ACTING PRESIDENT McGEE: Senator
Paterson, on the bill.
SENATOR PATERSON: The Class A
misdemeanor and the E felony almost rotate
from time to time. And I can see why Senator
Volker wanted it to be that way, because many
of those Class E felonies wind up as Class A
misdemeanors.
But even that it didn't work out
that way, it probably is a lot better to label
this type of an action under a misdemeanor
statute rather than a violation, because the
malicious mischief relates a lot of times more
to vandalism and those types of things where,
1275
after the perpetrator leaves, the
circumstances pretty much stay the same. In
the case that is before us now, there's always
the opportunity of a spreading of a fire. And
I can understand the change.
If Senator Volker would yield for
one last question.
ACTING PRESIDENT McGEE: Senator
Volker, will you yield?
SENATOR VOLKER: Yes. Yes.
ACTING PRESIDENT McGEE: The
Senator yields.
SENATOR PATERSON: In the cases
of fourth-degree arson, how do they now
distinguish themselves from this new
classification of fifth degree?
SENATOR VOLKER: I think the
fourth-degree arson is -- that's a -- that I
believe is a felony.
And I think the difference is that
there is -- and I'd have to look it up -
there is a danger, there's some more immediate
danger, I think, to -- more serious danger to
person and property than would be the case in
this situation.
1276
SENATOR GENTILE: Madam
President.
ACTING PRESIDENT McGEE: Senator
Gentile.
SENATOR GENTILE: On the bill,
Madam President.
ACTING PRESIDENT McGEE: Senator
Gentile, on the bill.
SENATOR GENTILE: I would add to
my esteemed colleague Senator Paterson's
remarks by adding that reckless endangerment
and criminal mischief not only do not
adequately tell a jury the circumstances about
which a defendant is being charged, but I
would argue that it also inadequately tells a
prosecutor or anyone looking at a criminal
history sheet, the NYSID sheet of previous
convictions, whether or not someone was
involved in some type of arson, if in fact
that was the only conviction, a criminal
mischief conviction was the only conviction on
a previous time for someone who is involved on
a series of arsons.
So certainly having a charge, a
misdemeanor that says arson in the fifth
1277
degree, I believe it is, will adequately
reflect on someone's criminal history sheet
exactly what that person is being convicted
of, rather than just a generic reckless
endangerment or a generic criminal mischief.
So I want to congratulate our
learned colleague Senator Volker for filling
in that gap for us here.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT McGEE: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 53.
ACTING PRESIDENT McGEE: The bill
is passed.
Senator Bonacic.
SENATOR BONACIC: Madam
President, could you call Calendar Number 90,
please.
ACTING PRESIDENT McGEE: The
Secretary will read.
1278
THE SECRETARY: Calendar Number
90, by Senator Goodman, Senate Print 687, an
act to amend the Transportation Law, in
relation to disclosure.
ACTING PRESIDENT McGEE: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 120th day.
ACTING PRESIDENT McGEE: Call the
roll.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT McGEE: I'm
sorry, Senator Bonacic, an explanation has
been requested.
SENATOR BONACIC: Madam
President, we ask that that be laid aside for
the day, please.
ACTING PRESIDENT McGEE: Lay the
bill aside for the day.
Senator Bonacic.
SENATOR BONACIC: Madam
President, is there any other housekeeping at
the desk?
ACTING PRESIDENT McGEE: No,
there is not, Senator.
1279
SENATOR BONACIC: There being no
further business, I move we adjourn until
Tuesday, March 6, at 11:00 a.m.
ACTING PRESIDENT McGEE: We stand
adjourned until Tuesday, March 6, at
11:00 a.m.
(Whereupon, at 4:53 p.m., the
Senate adjourned.)