Regular Session - March 6, 2001
1280
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 6, 2001
11:04 a.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.
Will everyone present please stand
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: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT MEIER: Reading
of the Journal.
THE SECRETARY: In Senate,
Monday, March 5th, the Senate met pursuant to
adjournment. The Journal of Friday, March
2nd, 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.
1282
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Dollinger.
SENATOR DOLLINGER: Mr.
President, consistent with my practice the
last couple of sessions, I give written
notice, as required by Rule XI, that I will
move to amend the rules to add a new rule, XV,
in relation to the ethical standards of
members, officers, and employees of the
Senate.
Thank you Mr. President.
ACTING PRESIDENT MEIER: The
notice has been received, and it will be
entered in the Journal.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time adopt the Resolution
Calendar in its entirety.
ACTING PRESIDENT MEIER: All in
favor of adopting the Resolution Calendar
1283
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
Resolution Calendar is adopted.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time have the noncontroversial
reading of the calendar.
ACTING PRESIDENT MEIER: The
Secretary will read the noncontroversial
calendar.
THE SECRETARY: Calendar Number
87, by Senator Seward, Senate Print 1573, an
act to amend the Insurance Law, in relation to
allowing domestic mutual insurance companies.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
99, by Senator Skelos, Senate Print 401, an
1284
act to amend the General Obligations Law, in
relation to exoneration.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
109, by Senator Morahan, Senate Print 1759, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to fixing sentences
for persons.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
110, by Senator Padavan, Senate Print 1822, an
act to amend the Criminal Procedure Law, in
relation to the defense of guilty but mentally
ill.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
112, by Senator Libous, Senate Print 1990, an
act to amend the Penal Law, in relation to
authorizing an additional term of
1285
imprisonment.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
115, by Senator Marcellino, Senate Print 106,
an act to amend the Vehicle and Traffic Law,
in relation to the enforcement of the offense
of operating a motor vehicle with a suspended
license.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
118, by Senator Maltese, Senate Print 1854, an
act to amend the Vehicle and Traffic Law, in
relation to increasing the penalty.
ACTING PRESIDENT MEIER: Read the
last section.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
119, by Senator Kuhl, Senate Print 2101, an
act to amend the Highway Law, in relation to
1286
the temporary discontinuance of snow and ice
removal.
SENATOR PATERSON: Oh, lay that
one aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
122, by Senator Velella, Senate Print 1360, an
act to amend the Administrative Code of the
City of New York, in relation to the
investment powers.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
129, by Senator Stafford, Senate Print 1054,
an act to amend the Environmental Conservation
Law, in relation to nonhazardous municipal
landfill closure project costs.
SENATOR PATERSON: Lay it aside.
ACTING PRESIDENT MEIER: Lay the
bill aside.
THE SECRETARY: Calendar Number
160, by Senator DeFrancisco, Senate Print 432,
an act to amend the Social Services Law, in
1287
relation to the transportation of certain
persons.
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: Mr. President,
can we at this time take up the controversial
calendar and get on with the business of the
Senate on this beautiful, sunshiny day.
ACTING PRESIDENT MEIER: I
couldn't agree more, Senator Bruno. The
Secretary will read the controversial
calendar.
THE SECRETARY: Calendar Number
87, by Senator Seward, Senate Print 1573, an
act to amend the Insurance Law, in relation to
allowing domestic mutual insurance companies.
SENATOR PATERSON: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
Seward, an explanation has been requested of
1288
Calendar Number 87 by Senator Paterson.
SENATOR SEWARD: Yes, Mr.
President. This bill would remove what I
would describe as archaic restrictions
requiring that domestic mutual insurance
companies hold their board of directors
meetings in the United States or Canada and
only within a jurisdiction where the insurer
is authorized to do business.
The provisions requiring the mutual
company to have at least four board of
directors meetings per year is retained in the
bill, as is the requirement that at least one
of those meetings be held within the borders
of New York State.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Thank you, Mr.
President. If Senator Seward would yield for
a few questions.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield for some questions?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
1289
SENATOR PATERSON: Senator, would
the desire to have these meetings outside of
the jurisdiction impact on the consumer? In
other words, would this cost large sums of
money that might be passed on to the consumer?
SENATOR SEWARD: Well, Mr.
President and Senator Paterson, I would say
this. The reason for the bill is in this day
and age, more and more the mutual insurance
companies are involved in a global
marketplace. And, well, take -- companies can
be doing business in Hong Kong, in Europe,
other parts of Asia. And in fact, under those
conditions, they actually have policyholders
and thus people who would also be entitled to
attend these meetings should they choose.
So by removing the restriction, the
companies would be able to have a meeting in
another -- outside the borders of the United
States and Canada, to accommodate the
policyholders in another country, and also to
help spur business in these other countries.
In terms of the impact on an
individual policyholder, I think it's a wash,
frankly, because of the fact that by
1290
encouraging the business in other parts of
world and in a global marketplace, it helps to
spread the exposure of the company and to
build the assets of the company. I think
these are all very positive aspects for the
policyholder.
SENATOR PATERSON: I agree, Mr.
President. If Senator Seward would yield for
another question.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: I was happy to
hear, Mr. President, that what Senator Seward
has done, even by opening up the territories
in which the meetings can be held, is to still
have a mandatory number of meetings that would
be held in New York State -- in this case,
one -- which I think is very good. I think
the other points that Senator Seward made
about the global marketplace are absolutely
right.
Which leads to just this final
1291
question. Why, Senator Seward, would there
have been this restriction in the law in the
first place? In other words, what was the
legislative intent that we are now changing
through the passage of this bill?
SENATOR SEWARD: Well, Mr.
President, Senator Paterson, the original law
in this area that required these meetings be
held, setting the number of meetings and
establishing the location, dates back to 1909.
And frankly, I don't know the reason that the
Legislature had back in 1909 to implement
this, other than to say that obviously it was
a whole different world. And, you know, in
terms of -- the concept of doing business
globally just obviously was the furthest thing
from anyone's mind. And it was just put into
law in 1909. The reasons, I can only
speculate.
SENATOR PATERSON: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: Since I can't
find anyone here that voted on the original
1292
bill, Mr. President -- I assume that you
didn't -- I would figure that we won't worry
about it, it'll just be a matter of history.
And Senator Seward's point is
well-taken, and it is a global marketplace and
it will call for this type of flexibility in
terms of meetings and interactions with
people. And so I am convinced by Senator
Seward's point.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to a couple of questions, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield for a question?
SENATOR SEWARD: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: In
considering this bill, Senator Seward, did you
examine the impact of having those meetings in
New York on service of process against the
directors of these mutual insurance companies?
1293
And just through you, Mr.
President, service of process for a claim
against the directors of a mutual insurance
company for malfeasance in office or that kind
of claim, they have to be in the State of
New York.
One of the logical places that you
would go to serve a member of the board of
directors of a corporation is at a meeting of
directors. And if you want to get
jurisdiction over them here in New York and
you have to serve them personally, one of the
things you would do is show up at a meeting of
the board of directors and hand them service
of process.
In considering this variation to
allow them to hold meetings outside New York,
did you consider the impact that it might have
on a New York consumer or policyholder who's
bringing an action against the mutual
insurance company?
SENATOR SEWARD: Mr. President,
it would have no -- this legislation, once it
becomes law, would not have any impact on that
at all.
1294
Because currently the law is that
only one of the four meetings are required -
this is the current law -- only one of the
four meetings are required to be held in the
State of New York, and the others could be -
the other three could be anywhere in the
United States or Canada.
Now, we're not changing the
one-meeting requirement in New York. We're
going to maintain that.
So the point that you have raised
is really moot because of the fact that at
least once a year at a board of directors
meeting, these directors would be within the
boundaries of New York State.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Seward will yield to
one other question.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: This bill, as
I understand it, says that only one of the
1295
meetings of the board of directors has to be
in the State of New York; is that correct?
SENATOR SEWARD: That's correct.
SENATOR DOLLINGER: Again,
through you, Mr. President, if you would
continue to yield, does this affect the
requirement that the annual meeting of the
members of the mutual insurance company be
held in New York?
I assume that there are annual
meetings in which the members participate in
the election of the members of the board of
directors. Is the requirement that the annual
meeting of the members be held in New York,
does that remain?
SENATOR SEWARD: The legislation
before us would not impact the existing law
when it comes to the annual meeting.
SENATOR DOLLINGER: Through you,
Mr. President, if Senator Seward will continue
to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
1296
sponsor yields.
SENATOR DOLLINGER: Does current
law require that the annual meeting be held in
the State of New York?
SENATOR SEWARD: The legislation
does not impact the annual meeting. And
the -- we're just not impacting where the
annual meeting is conducted. We're talking
about the four board of directors meetings
that are held.
SENATOR DOLLINGER: Correct.
Through you, Mr. President, if Senator Seward
will continue to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: I assume that
what happens, Senator Seward is, as common
practice with most corporations -- or I assume
with most mutual insurance companies, although
it's an assumption not based on personal
experience -- that there's a meeting of the
members of the mutual insurance company at
1297
which the directors are elected and then
that's immediately followed by a meeting of
the board of directors in which the newly
elected members or the reelected members
perform their tasks as directors.
My question is, does this
legislation require that the annual meeting of
the membership be held in New York State, or
does it give them the option to hold the
annual meeting outside the state?
SENATOR SEWARD: Our legislation
does not specify or have anything to do with
the annual meeting. We don't alter where the
annual meeting is conducted.
SENATOR DOLLINGER: Again through
you, Mr. President, just one final question to
clarify -
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Does current
law permit the annual meeting of the mutual
insurance company to be held outside the State
1298
of New York, and would this legislation allow
that annual meeting to be held in some other
country or some other place?
SENATOR SEWARD: Mr. President,
I'm advised by counsel that the existing law
does not specify the location of the annual
meeting. And our proposed bill does not
address the annual meeting provisions in any
way. We are talking about the four board of
directors meetings.
SENATOR DOLLINGER: Thank you,
Mr. President. On the bill.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I understand
Senator Seward's interest in allowing mutual
insurance companies that are chartered here in
New York, or domestic mutual insurance
companies -- those are companies that have
their original situs and chartering from the
State of New York.
And I understand the need to give
them the flexibility to go other places and do
other things with respect to their board of
directors meetings, that they will now be able
1299
to have them outside the United States and
Canada.
They can have them in the Caribbean
during, perhaps, a snowstorm in March, or
similar types of locations which corporate
board of directors -- and I'm sure mutual
insurance companies follow the same pattern -
it's an attractive thing for them to do in
recruiting board members in participating in
their process.
However, having said that, it seems
to me that the original chartering here in
New York of mutual insurance companies should
still bring some responsibility with respect
to the State of New York. And that's why
Senator Seward's view that this is an
accommodation I think is a good one.
But it seems to me that the
original purpose of having a mutual insurance
company founded here in New York and chartered
here in New York, we should require that the
annual meeting not be held in some foreign
location. And we shouldn't give this company
the ability to move its annual meeting to some
other location.
1300
If they're going to remain under
the jurisdiction of the State Insurance
Department, if they're going to remain subject
to service of process, so that if there were a
complaint or a summons brought against
individual directors for their individual
malfeasance in office or other purposes, it
seems to me there's a reason to have them here
in New York.
And I would suggest -- I'm going to
vote against this measure, because I think if
we're going to do a bill like this, to provide
that additional flexibility, which is not a
bad idea, we should also set some kind of
requirement that mutual insurance companies
that are founded here in New York that are
under the jurisdiction of our Insurance
Department have their annual meeting here in
New York so that that maintains that New York
situs of this company, maintains its place
here in New York.
Frankly, if there were additional
evidence or additional information that they
needed relief from that condition, I might
even consider that.
1301
But at least at this point, I think
it would be a fair trade to say to those
mutual insurance companies:
We'll let you go and hold your
board of directors meetings other places
outside the United States and Canada, but
because you're domestically chartered here in
New York, you should hold your annual meeting
here.
I think that's a fair trade. With
that trade in mind, I'd vote in favor of the
bill. Without it, I'll vote in the negative,
Mr. President.
ACTING PRESIDENT MEIER: 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: Those recorded in
the negative on Calendar Number 87 are
Senators Dollinger, Espada, Gonzalez, and
Hassell-Thompson. Ayes, 38. Nays, 4.
ACTING PRESIDENT MEIER: The bill
1302
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we call for an immediate meeting of the
Local Government Committee in the Majority
Conference Room.
ACTING PRESIDENT MEIER: There
will be an immediate meeting of the Local
Government Committee in the Majority
Conference Room.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
99, by Senator Skelos, Senate Print 401, an
act to amend the General Obligations Law, in
relation to exoneration of certain crime
victims.
SENATOR PATERSON: Explanation.
ACTING PRESIDENT MEIER: Senator
Skelos, an explanation has been requested by
Senator Paterson.
SENATOR SKELOS: Mr. President,
this bill adds a new section to the General
Obligations Law which would allow crime
victims and Good Samaritans to be exonerated
1303
in a civil lawsuit initiated by the plaintiff
where the defendant shows that the plaintiff's
injuries were sustained by the plaintiff
during the commission or attempted commission
by the plaintiff of certain enumerated crimes
and the conduct of the defendant was justified
pursuant to Article 35 of the Penal Law.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
if Senator Skelos would yield for a question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, I
have a concern about this bill. First of all,
I want to compliment you. I like the fact
that you were very specific about the types of
crimes for which -
ACTING PRESIDENT MEIER: Senator
Paterson, excuse me a moment.
Can we have some order in the
1304
chamber, please, so we can conduct this
debate.
Senator Paterson.
SENATOR PATERSON: Thank you, Mr.
President.
The specific types of crimes for
which this law would apply are set forth in
the legislation. And I think that if we were
to pass this type of legislation, these are
the types of crimes where we would want to
encourage the intervention of Good Samaritans
or encourage the justification of
self-defense.
But my concern is that we might be
merging the criminal and civil standards in a
piece of legislation that could actually be
harmful to the plaintiff or actually would be
harmful to a defendant in a civil suit.
Because, since the justification provision,
that action taken by the Good Samaritan or
that action taken by the victim, if the
defendant, the person who was perceived to be
the wrongdoer, is acquitted in a criminal case
that established that as a reasonable -- in
other words, beyond a reasonable doubt
1305
standard, would it not then be the case that
it would be hard to recover civilly from this
defendant if the victim sued because of the
legislation we're passing now?
SENATOR SKELOS: First of all, I
disagree with the Trial Lawyers memo in
opposition to this legislation.
I just think it's very simple. If
a person commits a crime that involves certain
enumerated crimes and the force used against
that person is justified under the Article 35,
then that individual has assumed the risk and
should not be able to recover a judgment for
his or her criminal activity. Very simple.
SENATOR PATERSON: Mr. President,
if Senator Skelos would be willing to yield
for another question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield?
SENATOR SKELOS: Yes. Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: Senator Skelos
is willing to yield for a question.
ACTING PRESIDENT MEIER: That's
1306
the way he pronounces it, so I try to.
(Laughter.)
SENATOR PATERSON: Mr. President,
sometimes things are not always as they seem.
And certainly there have been cases -- the
Cummings case is the one that comes to mind -
where it just seems absolutely unfathomable
that a person who is committing a crime, was
putting other people in danger, somehow got to
recover in a civil lawsuit because of the
actions that were taken against him by people
who were really trying to stop him from
committing the crime.
But is it not true, Senator Skelos,
that there is a point where any reasonable
person would perceive that the perpetrator of
a crime is apprehended or subdued and that any
action taken after that fact would be beyond
the scope reasonably set for what would be
apprehension and then goes into what is, in a
sense, a new crime, an assault, some type of
physical abuse, and that without at least the
opportunity to have a court review it we would
be opening the door for some real damage or
violence to be taken against individuals who
1307
have long since been brought into the control
of either law enforcement or individuals who
are apprehending them?
SENATOR SKELOS: Mr. President,
if I could respond.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: It's my belief
that with this legislation, under Article 35,
that it would not be justifiable and he would
not be exonerated for that type of crime.
Plus, of course, there are also
federal civil suits that could be brought.
And we saw that in California, for example,
with the O.J. Simpson case, where the person
was found not guilty of the crime and yet the
family was able to sue and recover a judgment.
SENATOR PATERSON: Mr. President,
if Senator Skelos would be willing to yield
for another question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you continue to yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
1308
sponsor yields.
SENATOR PATERSON: What I am
interpreting from your answer, from the answer
that I got, Mr. President, is that at a
certain point, if there is action taken beyond
what would be reasonably necessary to subdue a
perpetrator, that at that point there would be
action that could be taken against the
individual who would commit that violence?
SENATOR SKELOS: Yes. Yeah. I
believe that -- I was watching -- during the
snowstorm, I was reading the transcript from
last year's debate, and I think that was
eloquently pointed out by Senator Dollinger,
that if it's not one of the enumerated crimes
and if the force used is not justified under
Article 35, then you could have a suit against
this individual, it would proceed.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
with the distinct disadvantage of being put in
the position where Senator Skelos is now
quoting Senator Dollinger to defeat me in
battle, I'm going to -- even with that
1309
standard, I'm going to push forward and ask if
Senator Skelos would yield for another
question.
ACTING PRESIDENT MEIER: Senator
Skelos, do you yield?
SENATOR SKELOS: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR PATERSON: My question
relates to the common law as it stands now.
And other than the fact that an actual suit
could be brought, doesn't the common law
really, in many respects, sustain what you're
writing in this bill, in that it really does
give a great deal of latitude in situations -
with the exception of some notable exceptions
that you have pointed out that are an affront
to you, and are an affront to me, where a
couple of times people did go to court and
they got away with it.
But in the overwhelming cases that
have been brought by people who were injured
while they were committing a crime, isn't it
true that the law has sustained itself to this
1310
point and that the common law has really borne
out what you're now trying to put into our
statutory law?
SENATOR SKELOS: If I could
respond, Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Listening to
your words so carefully as I do, Senator
Paterson, you indicated "up to this point."
And that's why I don't think it's improper for
us to be codifying the law and bringing back
the assumption of the risk doctrine in these
type of situations.
SENATOR PATERSON: Thank you, Mr.
President. On the bill.
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I just wish
that if Senator Skelos would listen to my
words more carefully, as carefully as he
listens to the words of Senator Dollinger, I
could persuade him that this is probably not a
good piece of legislation to codify into law.
The spirit of the legislation is
1311
one that everyone in this room can understand.
Whenever someone goes beyond the
call of duty and intervenes in a situation
where they're risking their own life to save
others, there is no way that they should ever
then be sued really by anybody. But of all
those who might sue them, the actual
perpetrator of the crime, it is absolutely
horrendous to even know that there is some -
there have been a few examples that Senator
Skelos has cited in the past where that's
actually happened.
But in terms of our jurisprudence
and the way that we allow courts to make these
decisions, in the overwhelming number of cases
where this has come up, the courts have done
the right thing.
I don't think that we need to
legislate against the exception, because what
we lose is the opportunity to review
situations that could come up in the future
that the injured party would have absolutely
no redress.
I can't support Senator Skelos's
bill, but I certainly understand those who do
1312
support it. And I understand the emotional
feeling we all get every once in a while when
we pick up a newspaper and read the terrible
truth about what's happened when one of our
fellow citizens risks his or her life to try
to save that of another.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Just on the bill briefly.
This is a bill that I've talked
about a number of times on the floor. Part of
it is because I litigated a case called Smith
against Gooly to the Fourth Department of the
Appellate Division, in which I made an
argument based on Barker against Kallash. I
lost, and my opinion in which I lost gets
cited all the time for the proposition that
Barker should be somewhat narrowly read.
But, Mr. President, I rise today
because, while I appreciate and I'm going to
vote in favor of this bill, what I think we
may actually be doing through this bill is
actually constricting the cases under which
the doctrine of assumption of risk would
1313
apply, because the Court of Appeals has
interpreted the assumption of risk more
broadly than this statute defines it.
This statute says that it's only
when you're engaged in the enumerated crimes
that you are able to use, as Senator Skelos
properly points out, the at one time
disfavored notion of assumption of risk as a
defense in a civil action.
Currently the New York Court of
Appeals has held that the assumption of risk
applies in lesser criminal activity than that
enumerated in the statute. In Barker against
Kallash, the conduct that was the criminal
conduct which was the basis for preventing the
plaintiff from suing was the crime of making a
pipe bomb. It was highly controversial at the
time because it involved an 11-or-12-year-old
buy who was mixing gunpowder and fireworks in
the back yard of his house, which he had
obtained from a neighbor. The bomb goes off,
he tries to sue the neighbor.
The Court of Appeals held, wait a
second, he was really making a pipe bomb. He
was engaged in a felony and, as a consequence
1314
of that, he could not sue the person that he
had gotten the explosives from.
The thing that makes me concerned
about this bill and its impact is a case that
came from the Court of Appeals in 1997 called
Manning against Brown.
In that case, the person who was
the plaintiff in the lawsuit was involved in
what most lawyers know as the crime of
joyriding. Not automobile theft, a felony,
but actually joyriding. She or he had taken
the vehicle for the purpose of unauthorized
use and was off joyriding with a car. She's
involved in an accident, and the Court of
Appeals held that because she was engaged in
joyriding, which is not a felony, she was
precluded from bringing an action against
others involved in the accident.
The critical thing to keep in mind
there is the Court of Appeals concluded that
that conduct of joyriding was sufficiently
serious criminal activity to invoke the
doctrine that was set in Barker against
Kallash.
That is that someone engaged in any
1315
form of criminal activity has no recourse
through the civil courts.
The consequence of this
legislation, given that common-law backdrop
developed by the Court of Appeals, is that
what we're doing -- and I support this bill
and will vote in favor of it.
But what we're doing is we're
jumping into the common law of this state and
saying: No, no, it's only in these cases as
enumerated here -- that is, murder, robbery,
burglary, arson, forceable rape, or
kidnapping -- in which that defense of
assumption of the risk is going to be
available.
And the danger is that the courts
of our state, when they're faced with a
situation like Manning against Brown, where a
lawyer goes in and argues, Wait a second,
joyriding was sufficiently serious criminal
activity to preclude the plaintiff from
litigating, instead, they will walk in and
say, Well, wait a second. The New York State
Legislature has spoken, and we have decided as
a matter of public policy that it's only
1316
available when you're engaged in the crimes
that are enumerated in Senator Skelos's
statute.
So my point is this. By passing
this bill, we may actually be increasing the
number of times that those who are engaged in
minor criminal activity -- which the Court of
Appeals now said if you're engaged in
joyriding, you can't sue.
If we pass this bill, we may be in
a situation where if you're engaged in
joyriding again, someone will cite Manning
versus Brown as authority for the notion that
they have no claim and a good plaintiff's
lawyer will stand up and say: Well, that
isn't true anymore, because the New York State
Legislature has spoken and said that that
defense is only available in cases of serious
criminal activity -- murder, burglary,
forceable sodomy, and kidnapping, the other
ones cited by Senator Skelos.
So it may sound like a law school
lecture, Mr. President. I see the perhaps
somewhat disenchanted faces that we used to
see in law schools about long harangues by
1317
their law school professor. But just
understand that the effect of passing this
bill may be actually to constrict the use of
the defense of affirmative assumption of risk
rather than expand it, which is I think what
Senator Skelos was trying to do. And if we do
this, we may actually end up doing something
that we're unintentionally increasing the
claims by plaintiffs rather than decreasing
them.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 99 are
Senators Connor, Duane, Espada, Gonzalez,
Hassell-Thompson, Paterson, and Schneiderman.
Ayes, 42. Nays, 7.
ACTING PRESIDENT MEIER: The bill
is passed.
1318
THE SECRETARY: Calendar Number
109, by Senator Morahan, Senate Print 1759, an
act to amend the Penal Law and the Criminal
Procedure Law, in relation to fixing
sentences.
SENATOR STACHOWSKI: Explanation.
ACTING PRESIDENT MEIER: Senator
Morahan, an explanation has been requested of
Calendar 109 by Senator Stachowski.
SENATOR MORAHAN: Be happy to do
that, Mr. President.
It's an act to amend the Penal Law
and the Criminal Procedure Law, in relation to
fixing sentences for persons committing crimes
when on parole, conditional release, temporary
release, participating in a postrelease
supervision program, or persons serving on a
parole supervision sentence.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you. Would
the sponsor yield, please.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield for a question?
SENATOR MORAHAN: Yes, I do.
1319
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you. Where
will the prisoners be housed to serve out
their full terms?
SENATOR MORAHAN: In jail, I
guess. Prison.
SENATOR DUANE: In New York State
correctional facilities?
SENATOR MORAHAN: Correct.
SENATOR DUANE: I'm wondering if
the sponsor will continue to yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the sponsor
aware that most inmates are not being granted
parole?
SENATOR MORAHAN: Maybe most are
not granted parole. But those that are
granted parole or a work release or whatever,
any conditional release would be subject to
this bill.
1320
SENATOR DUANE: Through you, Mr.
President, I don't understand what the sponsor
just referred to.
SENATOR MORAHAN: It applies to
those who do receive parole or supervision.
SENATOR DUANE: I'm wondering if
the sponsor will continue to yield.
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you. Is
the sponsor aware that the lack of allowing
prisoners to be paroled is causing
overcrowding and overflowing of our state
correctional facilities?
SENATOR MORAHAN: I don't know if
that's any longer true. But however, I still
don't think it makes sense to release and
allow release of a prisoner who's been
released and continues to commit felonies on
the general public. I think they belong in
jail. If they're a little bit crowded, we'll
have to address that.
SENATOR DUANE: Through you, Mr.
1321
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator,
do you yield?
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the sponsor
aware that the overcrowding in the state
correctional facilities is causing many
prisoners to be kept in county and city jails
because there's no room for them in the state
facilities?
SENATOR MORAHAN: Okay, I don't
know if Senator Duane is up-to-date on the
latest information, but there are no
state-ready prisoners waiting to come into the
state system beyond the ten days.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would tell me where
he got that information.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield for a question?
SENATOR MORAHAN: The Department
1322
of Corrections, Senator.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
know how much this will cost the State
Department of Corrections each year?
SENATOR MORAHAN: No, I do not.
And I don't know if there would be a financial
impact, sir.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would clarify what
he said.
ACTING PRESIDENT MEIER: Senator
Morahan, I think he's asking you to yield.
SENATOR MORAHAN: Yes. Well, if
there are empty beds in DOCS, which is the
expectation of the Department of Corrections,
and we have room for the prisoners, there
1323
would be no financial impact as far as making
new prisons.
On their daily board, yes.
SENATOR DUANE: Mr. President,
I'm sorry, I just -- I can't hear.
SENATOR MORAHAN: I don't believe
there will be any significant impact other
than their room and board, which I think we
ought to be happy to pay to keep them in
prison if they're going to continue to do
violence in the public.
SENATOR DUANE: Through you, Mr.
President, if the sponsor could tell us how
much it costs per year to keep a -
ACTING PRESIDENT MEIER: Just a
second. Senator Morahan, do you yield for
another question?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Would the sponsor
tell us how much it costs per person per year
to have someone incarcerated in the Department
of Corrections facilities?
SENATOR MORAHAN: I don't have
1324
that information at the tip of my fingers,
Senator.
But let me say this in response to
that question, that I believe it's still
better for the public to house these violent
felons in a prison and let us address their
costs. I really don't like to relate the cost
versus the safety of the general public.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Would the sponsor
agree that whether or not someone agrees or
disagrees with this legislation, that we
should be cognizant of what the fiscal impact
would be?
SENATOR MORAHAN: I don't know if
that can even be determined, sir.
SENATOR DUANE: Through you, Mr.
1325
President, if the sponsor will continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: I continue to
yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: If we knew how
much it costs to keep a prisoner incarcerated
and multiplied that by the number of
anticipated prisoners who would be
incarcerated under this law, we would come up
with the amount of money this would cost the
state; is that not correct?
SENATOR MORAHAN: Assuming if you
can come up with the anticipated number, that
would give you some guesstimate, if you will,
yes.
SENATOR DUANE: And through you,
Mr. President, I'm assuming that -
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
1326
sponsor yields.
SENATOR DUANE: I'm assuming that
there was some reason that this legislation
was written and put on the agenda that had to
do with, I assume, people who had been -
committed a crime while they were on parole.
SENATOR MORAHAN: Committed a
felony. People committing felonies, it
applies to those.
SENATOR DUANE: So through you,
Mr. President, that was the reason for the
law?
SENATOR MORAHAN: The reason for
the law is I believe that if you get parole,
if you get work release, if you get some sort
of after-prison supervision, that's a bit of a
privilege. And I think if people violate that
privilege or abuse that privilege by
continuing to commit felonies, then I believe
they ought to be back in prison. That's the
purpose of the law.
SENATOR DUANE: Would the sponsor
continue to yield, Mr. President.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
1327
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the sponsor
aware of some circumstances under which
someone on parole did commit a felony?
SENATOR MORAHAN: Oh, I don't
have any specific case in mind, Senator. But
I would believe anyone who's read the papers
over the past year and a half, two years,
would have ample evidence of the need for this
particular bill.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the sponsor
saying that every one of these cases was
reported in the papers, or that's just an
1328
example?
SENATOR MORAHAN: I say that's
just an example.
SENATOR DUANE: So just to
clarify, the sponsor isn't aware of how many
people in the past year, say, would fall under
this legislation?
SENATOR MORAHAN: I don't have
that information at the tip of my fingers as
we debate the bill.
SENATOR DUANE: Would the sponsor
continue to yield, Mr. President.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, Mr.
President, I'll continue to yield.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
think that parole supervision is where it
should be at this time?
SENATOR MORAHAN: I don't know if
I understood the question.
SENATOR DUANE: Through you, Mr.
President, if I could clarify the question.
1329
ACTING PRESIDENT MEIER: Restate
the question, Senator.
SENATOR DUANE: Is it the
sponsor's position that parole supervision and
caseload ratios are where they should be right
now?
SENATOR MORAHAN: Senator, if you
want to get into statistics, if you want to
get into cost and relate statistics and cost
to the welfare and the safety of the public at
large, I don't enter into that debate.
If we have to spend more money, if
we have to hire more people, if we have to do
what we have to do to keep the general public
safe, then that's what I'm prepared to do.
But I don't put a price on the safety of the
general public. I don't do that.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: I'll continue
to yield, yes.
ACTING PRESIDENT MEIER: The
1330
sponsor yields.
SENATOR DUANE: What if because
of this law we had to build new prisons and
raise taxes? Would that be an acceptable
result of this law?
SENATOR MORAHAN: Senator, if a
person continues on parole to commit violent
felonies or felonies, I believe they belong in
prison, that's where they should be, and we
would have to deal, whatever the aftermath of
that is, as a responsible government.
I don't want to assume what may or
may not take place. I don't want to assume
that all parolees and the whole parole system
doesn't work. But for those that it don't
work, they ought to be in jail.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
1331
SENATOR DUANE: I'm wondering if
the sponsor would agree that whether or not
someone supports a piece of legislation or
not, that it would be in the interests of this
body for us to know what the fiscal
implications are before we pass it. Not even
specifically to this bill, but any bill that
we passed that did have a fiscal implication.
SENATOR MORAHAN: Senator, if
there was a fiscal note required, there would
have been one required. No fiscal note is
required.
One can only get into the realm of
assumptions, and I think that's why you can't
put a figure on this.
But again I repeat, Senator, if
you're saying that you're willing to turn
loose felons who continually commit felonies,
loose because of dollars, then I have a
serious question. I believe they belong in
prison, not on the streets of this state.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
1332
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
know in the past year how many parolees broke
parole by committing a violent felony or
whether or not he knows if the Department of
Parole actually keeps those statistics?
SENATOR MORAHAN: I believe I
already answered that question. But the
second part of your question, I don't know if
the Department of Parole keeps such
statistics.
But I think you have to understand,
when you talk about cost, while the cost of
housing this prisoners may go up, certainly
the cost of parole for those people would go
down. Another assumption, Senator.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
1333
SENATOR MORAHAN: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
believe that transitional planning within the
Department of Corrections or the Department of
Parole -- I should say Department of
Corrections (a), Department of Parole (b), is
where it should be, or does he believe it
needs more funding and staff members?
SENATOR MORAHAN: I don't know if
that's a subject for this particular bill,
Senator. But the transition, I don't know. I
think more people are going back into prison
than are staying out.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Is the -- in the
1334
sponsor's opinion, is the Department of Parole
doing a good job?
SENATOR MORAHAN: I don't think
that's a relevant question, Mr. -- Senator.
SENATOR DUANE: Through you, Mr.
President, I want to -- I'm wondering why the
sponsor thinks it's not relevant.
SENATOR MORAHAN: Well, I don't
know if that's just a matter of my opinion or
your opinion. I have no facts in front of me
to say whether they're doing a good job or a
bad job.
I don't know that this bill talks
about the relevance of what their job is, what
they do and how well they do it. I don't
believe the parole officer can prevent a
habitual criminal from committing a felony.
So I don't think that relates to the quality
of the job the Parole Department is doing.
I would assume they're doing a good
job.
SENATOR DUANE: Through you, Mr.
President, I think I need a clarification from
the sponsor on this if he will yield for that.
ACTING PRESIDENT MEIER: Senator
1335
Morahan, do you continue to yield?
SENATOR MORAHAN: Then I need a
clarification on his question.
SENATOR DUANE: Through you, Mr.
President, I just -- I don't really understand
what the sponsor said last, in his last
statement. So if he would repeat -
SENATOR MORAHAN: In answer to
your question whether I think the Parole Board
or the Parole Department is doing a good job
or a bad job, I don't know that that's
relevant to this bill. I don't believe if
they're doing a good job or a bad job that's
going to impact on who goes out of prison, who
stays out of prison or who comes back.
I would believe and I assume
they're doing a good job.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, Mr.
President, I continue to yield.
ACTING PRESIDENT MEIER: The
1336
sponsor yields.
SENATOR DUANE: Thank you. I'm
wondering what the sponsor could then tell me
what the purpose of the Department of Parole
is if it's not to help to keep people from
returning to prison.
SENATOR MORAHAN: Oh, I think
it's designed for that, sir. But I think if
someone is of a mind not to work with the
system and not work in a cooperative fashion
with the Parole Board, then those people have
to get special treatment, and that's the
purpose of this bill.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Does the sponsor
believe that if an inmate received vocational
education or higher education they would have
1337
a better chance of staying out of prison in
the future?
SENATOR MORAHAN: I don't know if
that's the purpose of this bill or if we're
getting off-point or if we're becoming
irrelevant in the questions or they're not
pertinent.
But let me say this. I think a
host of elements go into keeping people out of
prison once they're released. And I think all
the good things that we can do -- education,
training, substance abuse programs -- all of
those good things will help people succeed in
life once they get out of prison.
SENATOR DUANE: Through you -
SENATOR MORAHAN: The issue is -
if I may continue. The issue here is every so
often, no matter how many good things we do,
some people will continue to commit felonies
while on parole. I tend to think that's an
abuse of the system. And I think they ought
to be returned to prison if they abuse the
system.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
1338
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I may have
misspoken or didn't make my point clear
before. I meant does the sponsor believe that
having vocational training or higher education
in our prison facilities help people when they
get out of prison to stay out of prison.
SENATOR MORAHAN: Yeah, I believe
that would help. I believe we have those
programs in the prison system now.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield?
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Would the sponsor
support having college courses paid for by the
1339
state in our state correctional facilities to
help keep people from reentering prison when
they're released?
SENATOR MORAHAN: No.
SENATOR DUANE: Through you, Mr.
President, could the sponsor be more -
through you, Mr. President, if the sponsor
would continue to yield.
SENATOR MORAHAN: Yes, I do.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: If the sponsor
could tell us up to what level of education he
thinks our prisons should be supplying
incarcerated people with.
SENATOR MORAHAN: High school.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
Morahan, do you continue to yield?
SENATOR MORAHAN: I do, sir. But
before we continue to yield, let me just say
that I believe the questions are now starting
to become irrelevant to the purpose of this
1340
bill. Yes, I continue -- I will yield.
ACTING PRESIDENT MEIER: Are you
asking the chair to rule on the germaneness of
the questions, Senator Morahan?
SENATOR MORAHAN: Yes, sir.
ACTING PRESIDENT MEIER: Senator
Duane, before you ask the sponsor to yield I
would just caution you that the rules of the
Senate do provide the questions propounded in
debate should be germane to the bill at hand.
And I'd just caution you to frame your
question in that way.
Do you wish the sponsor to continue
to yield?
SENATOR DUANE: Yes, please, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Morahan, do you yield for a question?
SENATOR MORAHAN: Yes, I do, sir.
SENATOR DUANE: Just as a
clarification of that, does the sponsor
believe high school education means a GED or
an academic diploma?
SENATOR MORAHAN: I think -
ACTING PRESIDENT MEIER: Senator
1341
Duane, the chair is going to rule on its own
motion that that question is not germane to
the legislation before the house.
SENATOR DUANE: Then, Mr.
President, I'd like to -- what's the word -
appeal the ruling of the President.
ACTING PRESIDENT MEIER: The
question is on the ruling of the chair, which
is that the question last propounded was not
germane.
Senator Bruno.
SENATOR BRUNO: Party vote in the
negative.
SENATOR DUANE: Mr. President,
should we not be heard on this first?
ACTING PRESIDENT MEIER: You wish
to be heard on your appeal?
SENATOR DUANE: Through you, Mr.
President, I can guarantee that more than one
member of our side of the aisle would like to
respond.
SENATOR BRUNO: Party vote in the
negative.
SENATOR DUANE: But through you,
Mr. President, I don't think we're up to the
1342
vote yet. I'm not versed in Robert's Rules,
but I think first discussion, then a vote.
ACTING PRESIDENT MEIER: Well,
Senator, under the rules, the Majority Leader
may call the question at any time during the
course of the pendency of the motion.
SENATOR BRUNO: Call the
question, Mr. President.
ACTING PRESIDENT MEIER: The
question has been called. The question before
the house is whether the ruling of the chair
should be overruled.
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
I do understand that under Section 3.1 of the
Rules that you are allowed to rule on this.
However, for the benefit of members
such as myself and Senator Dollinger and some
of us here in the back, we didn't hear the
question.
ACTING PRESIDENT MEIER: Senator
Bruno.
SENATOR BRUNO: Mr. President,
you know, we know we're all getting very
informed this morning on all of these very
1343
important issues, and I appreciate that. But
we have a lot of work to do today. And I
think that we can be here -- our plans were to
be here till about 8 o'clock, since the
weather outside is so frightful and it's so
delightful inside.
So -- but we do have a full
calendar, and it's important to progress. And
I believe the rules call for the chair here to
be able to call the question, which is
nondebatable, and we will vote on the issue
and go on to the rest of the calendar.
And I'm reluctant to do that, but I
think that you're as well informed as you can
be on this particular issue. And if you're
not as well informed as you can be, then you
weren't up late last night, as our Senators
were on this side, studying. And I think
that's unfortunate.
So, Mr. President, if I am correct,
you have a parliamentarian there who is versed
in Robert's Rules, and we ought to handle
ourselves according to the rules.
ACTING PRESIDENT MEIER: The
question has been called, and the vote has
1344
been cast, a party vote in the negative. Does
the Minority have a vote to announce?
SENATOR PATERSON: Mr. President,
I heard Senator Morahan say that he didn't
think that the issue was germane.
ACTING PRESIDENT MEIER: Senator
Paterson, the chair ruled on the germaneness
of the question that had been propounded. The
question before the house now is an appeal of
that ruling. A negative vote upholds the
ruling of the chair. A vote in the positive
votes to overrule the opinion of the chair.
Do you have a vote to state, sir?
SENATOR PATERSON: Thank you, Mr.
President. I just didn't hear Senator Duane,
so I don't know whether or not I agree with
the ruling of the chair. I don't know, I
didn't hear him.
I did hear Senator Morahan say that
he thought the question was not germane. I'm
sure, knowing Senator Duane, that his question
was germane. But I didn't hear the question.
ACTING PRESIDENT MEIER: Senator
Paterson, the question has been called. How
do you vote?
1345
SENATOR PATERSON: Party vote in
the affirmative, Mr. President.
ACTING PRESIDENT MEIER: The
ruling of the chair is sustained.
Senator Dollinger, why do you rise?
SENATOR DOLLINGER: I just rise
to explain my vote, Mr. President. I agree
with Senator Paterson -
ACTING PRESIDENT MEIER: Senator,
Senator, the vote has been completed. The
results were -
SENATOR DOLLINGER: Can I explain
my vote, Mr. President?
ACTING PRESIDENT MEIER: The
Secretary will announce the results.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 20. Nays,
32. Party vote.
SENATOR DOLLINGER: Mr.
President, point of order.
ACTING PRESIDENT MEIER: What's
your point of order, Senator?
SENATOR DOLLINGER: Do I have an
opportunity to explain my vote?
ACTING PRESIDENT MEIER: Just -
1346
just give me a second.
SENATOR DOLLINGER: Fine.
ACTING PRESIDENT MEIER: Yes, you
can, Senator. You have two minutes.
SENATOR DOLLINGER: Thank you,
Mr. President. I'll be very brief.
I agree with Senator Paterson.
What I don't understand -- and I didn't hear.
I guess, maybe like other members of the
chamber, I wasn't focusing intently on the
debate between Senator Morahan and Senator
Duane. But it's impossible for me to make a
judgment as to whether Senator Duane's
question is not germane, which was the issue
decided by the house, or decided by the chair
and which now has been apparently affirmed by
the Majority. It's impossible for me to make
a judgment as to whether that's germane or not
unless I know what the question was.
And I would just suggest that
Senator Paterson's request to simply have the
question repeated is not certainly out of the
ordinary and would get all the members of the
house fully informed before we cut off the
debate on this issue and decide these
1347
questions without knowing what they were.
I just -- with all due respect to
the chair and to the Majority, if in the
future, since this is apparently not going to
happen now, we could simply have the question
repeated so we can make an independent
judgment about germaneness, it would perhaps
go a long way to avoiding the vote we just
took.
ACTING PRESIDENT MEIER: Senator,
the chair recognizes the person stating the
vote. Do you have a vote?
SENATOR DOLLINGER: I vote with
the Minority.
ACTING PRESIDENT MEIER: Senator
Dollinger, you are recorded in the
affirmative.
Senator Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
on my own inquiry I went over and asked
Senator Duane what his question was. And -
ACTING PRESIDENT MEIER: Senator
Paterson, for what purpose are you asking for
the floor?
SENATOR PATERSON: I'm explaining
1348
my vote. I'm explaining my vote.
ACTING PRESIDENT MEIER: Senator
Paterson, to explain his vote.
SENATOR PATERSON: And I thought
that the question that Senator Duane asked was
quite relevant to the discussion. I'm sorry
that Senator Morahan didn't feel that it was.
But it was, I thought, very much within the
ambit of the conversation that they were
having.
And I cast the party vote in the
affirmative, but I can now honestly tell you
that my own personal vote is in the
affirmative, because I thought the question
was well-taken.
THE PRESIDENT: Senator Paterson,
you will be so recorded as voting in the
affirmative.
Senator Morahan, to explain your
vote.
SENATOR MORAHAN: Yes, I'd like
to use this opportunity to have a
clarification of what is occurring here.
Number one, I did not rule the question to be
germane or not to be germane. The chair made
1349
that ruling before I had an opportunity to
respond or to say a word. So it's a ruling of
the chair.
I stand here ready to go on
explaining this bill to any other Senator or
to Senator Duane, should he have other
questions to ask me.
Thank you very much.
THE PRESIDENT: Senator Bruno.
SENATOR DUANE: Madam
President -
THE PRESIDENT: Senator Bruno,
did you wish to be recognized?
SENATOR DUANE: -- point of
personal privilege, because I couldn't hear
what the -
THE PRESIDENT: Senator Bruno has
the floor.
SENATOR BRUNO: Madam President,
I'd like to call the question on Calendar 109.
THE PRESIDENT: The Secretary
will call the roll.
Read the last section.
THE SECRETARY: Section 8. This
act shall take effect on the first day of
1350
November.
SENATOR SCHNEIDERMAN: Madam
President.
SENATOR DOLLINGER: Madam
President, can I have a point of order.
SENATOR PATERSON: Madam
President, just a point of order. The time
for debate -
THE PRESIDENT: Senator Paterson,
your point of order, please.
SENATOR PATERSON: The point of
order is that the time for the debate had not
elapsed. We -
THE PRESIDENT: Senator, this is
not a debatable bill.
SENATOR PATERSON: This is a
bill. We're debating it.
SENATOR SCHNEIDERMAN: We're
trying to explain our vote.
SENATOR PATERSON: Wait, wait,
wait -
THE PRESIDENT: The Secretary
will call the roll.
SENATOR PATERSON: Slow roll
call, Madam President.
1351
THE PRESIDENT: Slow roll call.
Have five members risen?
The Secretary will call the slow
roll call on the bill.
THE SECRETARY: Senator Alesi.
(No response.)
THE SECRETARY: Senator Balboni,
excused.
Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
(No response.)
THE SECRETARY: Senator Brown.
(No response.)
THE SECRETARY: Senator Bruno.
SENATOR BRUNO: Yes.
THE SECRETARY: Senator Connor.
(Senator Connor was indicated as
voting in the negative.)
THE SECRETARY: Senator
DeFrancisco.
(No response.)
THE SECRETARY: Senator
Dollinger.
SENATOR DOLLINGER: To explain my
1352
vote, Madam President.
THE PRESIDENT: Senator
Dollinger, to explain your vote.
SENATOR DOLLINGER: I'm sitting
here, Madam President, not quite sure what
this vote is all about. I'm assuming that
this is a vote on the merits of Calendar
Number 109, which Senator Morahan was
explaining to Senator Duane, which we then had
a -- and I think, Senator Morahan, you're
absolutely correct in your earlier
pronouncement. The chair had ruled that a
question was not germane. We're bound by that
ruling, we followed the procedure -
THE PRESIDENT: Senator
Dollinger, you have the floor to explain your
vote. Please proceed to explain your vote,
sir. That's the ruling of the house. Please
proceed with an explanation. That's why you
have the floor. Go ahead, sir.
SENATOR DOLLINGER: I know, Madam
President. I have the floor -
THE PRESIDENT: Then please
proceed pursuant to the rules.
SENATOR DOLLINGER: I will, Madam
1353
President.
THE PRESIDENT: Now. Thank you.
SENATOR DOLLINGER: With all due
respect, Madam President, I would simply ask
that I be allowed to explain my vote. I was
doing that, I was in the process of doing
that, and I will continue to do that.
THE PRESIDENT: Thank you,
Senator.
SENATOR DOLLINGER: Senator
Morahan was explaining to Senator Duane this
bill. We followed the procedure. The chair
ruled that Senator Duane's questions were not
germane. I understand that, I accept that
ruling.
What I don't understand is why
further questions from either Senator Duane,
who voted against this bill last year and had
valid objections, or Senator Montgomery, who
is not here but nonetheless had objections
last year, why that process wasn't allowed to
continue, Madam President.
And I'm going to vote in favor of
this bill. I voted in favor of it in the
past. I've supported this measure. But quite
1354
frankly, I don't know where this process is
going, and I frankly see it spinning out of
control. And if that's the consequence of the
rules of this house, I am fearful that this is
going to happen more and more frequently.
I would like to go back to debate
between Senator Morahan and Senator Duane.
That's where we should be.
THE PRESIDENT: Senator
Dollinger, you will be recorded as voting in
the affirmative on this bill.
SENATOR DOLLINGER: Thank you,
Madam President.
THE PRESIDENT: The Secretary
will announce the results.
SENATOR PATERSON: Madam
President, this is a slow roll call.
THE PRESIDENT: Senator Paterson,
to continue the slow roll call. To explain
your vote.
SENATOR PATERSON: Well, while
I'm here, Madam President -
(Laughter.)
THE PRESIDENT: The Secretary
will continue to call the roll.
1355
THE SECRETARY: Senator Duane.
SENATOR DUANE: To explain my
vote, Madam President.
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: I'm just
disgusted that there's an unwillingness in
this body to debate issues of crime and parole
and what happens in our correctional
facilities. The Governor himself believed
that this was important enough to put into his
State of the State address. And then for us
to shirk our responsibilities and to try to
cut each other off when we discuss these very
important issues I think is a tragedy for this
body.
And I'm voting no, Madam President.
THE PRESIDENT: Senator Duane,
you will be so recorded as voting in the
negative.
The Secretary will continue to call
the slow roll.
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Yes.
THE SECRETARY: Senator Farley.
1356
SENATOR FARLEY: Aye.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Aye.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Yes.
THE SECRETARY: Senator Gonzalez.
SENATOR GONZALEZ: Yes.
THE SECRETARY: Senator Goodman.
(Senator Goodman was recorded as
voting in the affirmative.)
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Yes.
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: To
explain my vote.
THE PRESIDENT: You may proceed,
Senator, to explain your vote.
SENATOR HASSELL-THOMPSON: Thank
you, Madam Chair.
THE PRESIDENT: You're welcome.
SENATOR HASSELL-THOMPSON: Coming
into the chambers today on this particular
issue I had some ambivalence, but I certainly
1357
was prepared to vote for the bill, primarily
because I represent portions of a district
where there are a tremendous number of the
elderly. And part of what continues to happen
is that they many times are victimized by
these types of criminals that live in our
communities. And so on their behalf, I felt
obligated at least to listen to the debate and
be prepared to vote on this bill.
I have to express, Madam Chair, my
disappointment, however, at the inability of
us to continue to have this debate. I heard
Senator Morahan say that he would continue to
entertain questions on this so that we
would -
THE PRESIDENT: Excuse me,
Senator.
If the members would take their
conversations out of the chambers, please.
You may proceed, Senator.
SENATOR HASSELL-THOMPSON: Thank
you.
THE PRESIDENT: You're welcome.
SENATOR HASSELL-THOMPSON: My
disappointment is only in our failure to
1358
continue to be allowed to debate this issue.
And I felt that the response by
Senator Morahan to continue to entertain
questions so that we would all have a better
comfort level when we came to the portion of
our vote, for that I am very disappointed.
So therefore, you have created an
ambivalence in me in my inability to support
the bill at this point. I vote no.
THE PRESIDENT: Senator, you will
be so recorded as voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Hevesi.
SENATOR HEVESI: Madam President,
to explain my vote.
THE PRESIDENT: Go ahead,
Senator.
SENATOR HEVESI: Thank you, Madam
President.
I voted for this legislation last
year, and I think it's a good piece of
legislation. I too am troubled at the lack of
debate that's been permitted on this piece of
legislation. And I was listening to Senator
Duane, and I found his questions relevant,
1359
germane, and important for those of us hearing
the discussion to determine whether or not
it's a good bill. So that's regrettable.
Having said that, I would suggest
that, Senator Morahan, this is a good piece of
legislation and that someone who has committed
felony offenses while they're on parole for
another felony should at the very minimum be
required to serve the maximum sentence on the
original felony.
And I'd even go you one further,
Senator Morahan, and suggest to you that we
might explore the possibility of, in addition
to this, not only requiring the minimum
sentence be served on the felony that was
committed while on parole, but perhaps the
maximum sentence. Because someone who abuses
the privileges of parole should never be put
in a situation where they're going to be
released on parole again, have already
violated a public trust and confidence on that
parole, and then are free to commit another
offense against somebody, particularly a
felony offense.
So I strongly support this bill
1360
and, ironically, would suggest to you I don't
think it goes far enough. So I support this
legislation. But again, the lack of
permissibility of debate in this house, a
trend that we have seen over the past few
weeks of this session, unlike my last two
sessions here, is exceedingly troubling and I
don't think does any justice to this house as
an institution.
So I vote aye, over regrets of the
process that has brought us to this point.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Aye.
THE SECRETARY: Senator Kruger,
excused.
Senator Kuhl.
SENATOR KUHL: Yes.
THE SECRETARY: Senator Lachman.
SENATOR LACHMAN: Yes.
THE SECRETARY: Senator Lack.
1361
(No response.)
THE SECRETARY: Senator Larkin.
(No response.)
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
THE SECRETARY: Senator Leibell.
(No response.)
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Yes.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Aye.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Aye.
THE SECRETARY: Senator
Markowitz, excused.
Senator Maziarz.
SENATOR MAZIARZ: Aye.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Yes.
THE SECRETARY: Senator Meier.
(No response.)
THE SECRETARY: Senator Mendez.
1362
SENATOR MENDEZ: Yes.
THE SECRETARY: Senator
Montgomery.
(No response.)
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Yes.
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Aye.
THE SECRETARY: Senator Onorato,
excused.
Senator Oppenheimer.
SENATOR OPPENHEIMER: Aye.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Yes.
THE SECRETARY: Senator Paterson.
SENATOR PATERSON: Madam
President, to explain my vote.
THE PRESIDENT: Go ahead,
Senator.
SENATOR PATERSON: We have rules
that operate this house. As a society, we
can't live without rules to protect each other
from the misfeasances that others may commit
on each other.
The chair ruled, using Section 3.1
1363
of our rules, that Senator Duane's question
was not germane. Senator Duane didn't feel
that way; I didn't feel that way. It was a
minor inconvenience that the only way I could
find out what Senator Duane's question was was
to actually ascertain it by asking him.
But the fact is that this bill
began debate at 11:39 a.m. Suddenly, at
12:20, the question was called. Under our
rules -
THE PRESIDENT: Senator, you may
proceed. I think you can be heard better now.
SENATOR PATERSON: Thank you,
Madam President.
Under our rules, there is a
two-hour debate period that can elapse before
the question can be called. Those are our
rules. Only 41 minutes of that two hours had
elapsed. I do not understand why we would
have to vote on this bill when only Senator
Duane was allowed to question Senator Morahan.
There were other members from this side of the
aisle, and presumably from the other side of
the aisle, who had an opportunity to learn
more about this legislation and did not
1364
because the rules were not adhered to.
I don't think that we as a Senate,
or our leadership, is going to be able to
establish any credibility when we don't follow
our own rules. If others disagree with the
rules and are upset because the Majority can
vote on the rules, that's one thing. But
these are rules that were set by all of us.
We all voted for the rules. And there is no
disputing this point: only 41 minutes of this
debate elapsed.
I'm going to vote no on the bill,
Madam President. But I would like to remind
everybody here that if in the future there's
any attempt to call the question before the
two-hour period has elapsed, I suggest that we
are going to have a very difficult time
cooperating with each other because we're not
going to have a standard that anyone can
adhere.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative.
Senator Bruno.
SENATOR BRUNO: Madam President,
just for clarity and for order, if you will
1365
just grant me the privilege here, I hear
Senator Paterson and respect what you have to
say.
We have rules that the Senate is
abiding by. And to my knowledge, the chair,
this chair can call the question at any time
on any issue. And that is nondebatable. It
is nondebatable. But the Senators to be heard
can explain their votes and can indicate what
they have on their minds at that time. And
that is two minutes, and two minutes only,
because the objective is to move the calendar.
That's the objective.
And if you take two minutes times
26, I think that's 52 minutes. So we can move
a bill an hour if you each want to take your
two minutes. And that's the objective here.
So we're going to call the question
regularly when it appears that the discussion
is not germane, that we're filibustering and
we're just showing our peeve at the rules
changes that took place.
So I am saying to you, you have the
privilege and the prerogative to do anything
that is within the rules. But we are going to
1366
abide by the rules of this house. And each
individual member doesn't have to like it.
But that's the way this chair is going to
function.
So, Senator Paterson, what we have
done was call the question, because we had
enough conversation, we had enough debate,
there was enough harassment that had taken
place. And that you are free to explain your
vote, as you have been doing. And that seems
appropriate, and that seems orderly, and I
don't understand why that should be disturbing
to anyone.
THE PRESIDENT: Senator Paterson,
why do you rise, sir?
SENATOR PATERSON: Point of
order, Madam President.
THE PRESIDENT: Please state your
point.
SENATOR PATERSON: I looked
through the rules as Senator Bruno stated
them. And I would have to say, upon
examination of them, that Senator Bruno is
right. I don't see anything in the rules that
allows for a standing member to be recognized
1367
by the Temporary President when the question
has been called.
I would like to say that on that
particular bill, only one member had spoken on
the bill. There was some indication that the
member who the point was addressed to had
raised the issue of germaneness. The chair
properly -- and when I say properly, I don't
mean that I agreed with it. But in compliance
with the rules, the chair ruled on that, and
that was the end of the issue of germaneness.
There were other members waiting to
speak on the bills. If we are just going to
call the question on every bill and, as
Senator Bruno pointed out, give everyone two
minutes to explain our vote, then I think we
need to take the sign down outside that says
"deliberative body." And I would suggest that
this be better performed in places other than
the United States of America.
Under a technical reading of the
Rules, I have no quarrel with Senator Bruno's
conclusion. I have no quarrel either with
Senator Bruno's feeling that there is conduct
that goes on in the chamber that at times
1368
reads acrimonious between the two conferences.
THE PRESIDENT: Senator, could
you please state your point of order.
SENATOR PATERSON: My point of
order is that it has been the tradition of
this chamber that all parties be heard within
a reasonable limit of time. And I don't think
41 minutes was a reasonable limit of time.
THE PRESIDENT: Senator, your
point is not well-taken.
The Secretary will continue.
THE SECRETARY: Senator Rath.
SENATOR RATH: Aye.
THE SECRETARY: Senator Saland.
(No response.)
THE SECRETARY: Senator Sampson.
SENATOR SAMPSON: Aye.
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: No.
THE SECRETARY: Senator
Schneiderman.
THE PRESIDENT: Senator
Schneiderman, to explain your vote.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
1369
I join with several of my
colleagues who have noted that the process of
debating this bill has unfortunately had an
impact on my consideration of the bill. And I
believe that the rule that Senator Bruno just
stated was not adhered to in the course of
this debate. Senator Duane appealed the
ruling of the chair that his question was not
germane. We voted on that ruling.
Several of us were standing to
explain our votes, which I believe Senator
Bruno just said is the right we always have.
He called the question then before we had a
chance to explain our votes. So if we always
have two minutes to explain our votes, as just
stated, that was not adhered to in this case.
I realize that we can continue to
escalate this and come up with ways to harass
each other. I do not think it serves the
purposes of this house. But, you know, if
that's the game we're playing, that's the game
we're playing.
I think this bill is a very
significant bill. I think it raises questions
about the purposes of incarceration, about
1370
judicial discretion in sentencing. Senator
Morahan apparently has thought a great deal
about this. He was ready to answer questions.
There were others of us who had questions to
ask. And I think that the cutting off of this
sort of debate does not bring any honor to the
house. And the cutting off of our opportunity
to explain our votes clearly violates the
rules of the house.
I vote yes for the bill, but I
strongly object to the procedures.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative on
the bill.
The Secretary will continue.
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Yes.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Yes.
THE SECRETARY: Senator A. Smith.
SENATOR ADA SMITH: Aye. Yes.
THE SECRETARY: Senator M. Smith.
SENATOR MALCOLM SMITH: Yes.
THE SECRETARY: Senator Spano.
SENATOR SPANO: Aye.
1371
THE SECRETARY: Senator
Stachowski.
THE PRESIDENT: Senator, to
explain your vote.
SENATOR STACHOWSKI: Briefly to
explain my vote. I'm going to support Senator
Morahan's bill.
But just in a continuation and an
observation of the things that just took
place, I don't have a problem with the chair
ruling germane or ungermane. I don't have a
problem with calling the vote. I don't even
have a problem with the Majority Leader
calling the question.
However, it's not the Majority
Leader's responsibility to notice that there
were members waiting to stand to explain their
vote on the challenge of the chair. It's the
chair's responsibility. And the chair ignored
the members, and that's the chair's problem,
not necessarily the Majority Leader's. The
Majority Leader is doing his job on calling
the question, and the chair just absolutely
ignored a group of Senators that were
standing.
1372
And to my mind, when we're doing
parliamentary procedure, everyone has the same
standing in this house. If the chair has a
point -- the Majority Leader has a point to
make, he can make that. But it would have
been the chair's responsibility to inform the
Majority Leader that he can call the question
as soon as the members that were standing to
explain their vote explained their vote.
If you're changing the rules again
and saying, Well, if the Majority Leader wants
to call the vote after a challenge to the
chair and we're just not going to let anybody
else explain whether they're for the challenge
of the chair or they're not, or they're not
entitled to explain their votes, well, that's
good. That's just another new rule change
we're going to do because we can. Or else
it's another interpretation of the chair
opposite of any parliamentary procedure
anywhere that they chose to do because they
can.
I vote yes, but I'm sorry that this
took place.
THE PRESIDENT: Senator, you will
1373
be recorded as voting in the affirmative.
And we will continue giving each
member, if each member so chooses, the
opportunity now to explain your votes.
The Secretary will continue.
THE SECRETARY: Senator Stafford.
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
SENATOR STAVISKY: Aye.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
SENATOR VELELLA: Yes.
THE SECRETARY: Senator Volker.
SENATOR VOLKER: Yes.
THE SECRETARY: Senator Wright.
SENATOR WRIGHT: Aye.
THE PRESIDENT: The Secretary
will call the absentees.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
THE SECRETARY: Senator Breslin.
THE PRESIDENT: Senator Breslin,
to explain your vote.
SENATOR BRESLIN: Thank you,
1374
Madam President.
THE PRESIDENT: You're welcome.
SENATOR BRESLIN: I too will vote
in the affirmative for this bill, as I did
last year.
But I, along with many members on
this side, am deeply troubled that the new
rules we operate under are an embarrassment to
us, an embarrassment to the people of the
State of New York, and the interpretation of
those rules are a further embarrassment to us
and to the people of the State of New York.
It could best be described in one
word: totalitarianism. And it's offensive.
And we must bring an end to it so there's an
open debate, an open debate where the people
of the State of New York can be proud of this
body again.
Thank you, Madam President.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator Brown.
SENATOR BROWN: Yes.
THE SECRETARY: Senator
1375
DeFrancisco.
THE PRESIDENT: Senator
DeFrancisco, to explain your vote.
SENATOR DeFRANCISCO: I just want
to -- I want to vote yes. It's a good bill.
But as to the procedure, everybody
in this room and everyone out there who pays
attention to what goes on in this room knows
what's happening here. If you look at these
bills that were noncontroversial last year,
they weren't even debated. And if they were,
they were done in five minutes. Now they
become 45-minute debates and then have to be
cut off.
The reason it's happening -- and
it's not totalitarianism. It's not anything
about lack of freedom of speech. It's that
one side of the aisle doesn't like the rules
that were put into place by the other side of
the aisle, and they're going to make us pay
for it.
So if that's the way the game is
going to be played, the only way to get work
done is after a reasonable period of time to
call the question.
1376
So thou protest too much. And you
all know the real reason what's going on here.
And I vote aye.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Aye.
THE SECRETARY: Senator
Montgomery.
(No response.)
THE SECRETARY: Senator Saland.
SENATOR SALAND: Aye.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Ayes, 51. Nays,
5.
THE PRESIDENT: The bill is
passed.
1377
The Secretary will read.
THE SECRETARY: Calendar Number
110, by Senator Padavan, Senate Print 1822, an
act to amend the Criminal Procedure Law, in
relation to the defense of guilty but mentally
ill.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
could we at this time ask for an immediate
meeting of the Corporations Committee in the
Majority Conference Room. Thank you.
THE PRESIDENT: There will be an
immediate meeting of the Corporations
Committee in the Majority Conference Room.
Senator Paterson.
SENATOR PATERSON: I'm sorry,
Madam President. I was just asking for an
explanation from Senator Padavan.
THE PRESIDENT: Senator Padavan,
an explanation has been requested.
SENATOR PADAVAN: Thank you,
Madam President.
If in a criminal action a defendant
asserts a defense of guilty by reason of
1378
insanity or mental disease or defect, in
accordance with existing law an alternative
verdict can be accomplished called guilty but
mentally ill.
However, there are a number of
requirements that would preclude -- a number
of requirements that must be in place in order
for such an alternative verdict to be
presented or agreed upon or adjudicated. The
conditions are outlined in the bill, beginning
on page 12.
THE PRESIDENT: Read the last -
Senator Paterson.
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Yes.
SENATOR PATERSON: Would Senator
Padavan yield for a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR PADAVAN: Madam
President, as Senator Paterson is aware, this
bill was discussed in this house and passed on
seven occasions. In most of those seven
occasions, Senator Paterson and I entered into
1379
a lot of Q&A, dialogue. I don't know if much
will be served by doing that again.
But however, as a matter of
courtesy to you, Senator Paterson, I will be
happy to yield to a question. "A" being one.
THE PRESIDENT: Senator, you may
proceed with a question. Senator Paterson.
SENATOR CONNOR: Madam President,
is there a quorum? I inquire as to a quorum.
I'd like to ascertain a quorum.
Could we please ascertain a quorum?
The rules say to call the roll forthwith.
THE PRESIDENT: The Secretary
will call the roll and ring the bell.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Present.
THE SECRETARY: Senator Balboni,
excused.
Senator Bonacic.
SENATOR BONACIC: Here.
THE SECRETARY: Senator Breslin.
(No response.)
THE SECRETARY: Senator Brown.
SENATOR BROWN: Present.
THE PRESIDENT: Senator Bruno.
1380
SENATOR BRUNO: Madam President,
I would like to ask for a closed call of the
house. And that means every member in the
chamber. And nobody leaves without an escort
if they have to leave.
THE PRESIDENT: The
sergeant-at-arms will close the doors to the
house and is instructed to bring the members
in.
Senator Skelos.
SENATOR SKELOS: Madam President,
if we could ask that the sergeant-at-arms go
out and escort all the members that are not in
the chamber to come into the chamber at this
time, and that the doors be locked.
THE PRESIDENT: As I just stated,
Senator, the sergeant-at-arms will proceed
with doing that, to close the door and to go
out and escort the members in.
SENATOR CONNOR: Madam President.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Yes, if I may be
so humble as to make a suggestion to the
Majority. Many of the members here were not
here when last a closed call was imposed,
1381
under Senator Anderson, which we did pretty
routinely. In those days there were phones in
the -- two phones in each of the fireplaces.
There wasn't a lounge. There weren't gates on
the outer lobby. If I may respectfully
suggest -- and you were allowed to eat in the
chamber, so you could send pages out to get
you sandwiches or whatever.
May I respectfully suggest -- and I
think it's a good suggestion. But if the
Majority doesn't like it, that's fine -- that
since we now have those iron gates, which we
didn't have in those days, that the closed
call of the house be deemed to embrace the two
outer lobbies in the lounge and that the iron
gates be locked as well as all the doors that
would give someone egress beyond that.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
the closed call of the house will be these
doors and these doors and those doors and
those doors. And if a member needs to go out,
they will have to come to the chair and ask
permission to go out.
THE PRESIDENT: So ordered,
1382
Senator Skelos.
The Secretary will continue with
the quorum call.
THE SECRETARY: Senator Bruno.
SENATOR BRUNO: Present.
THE SECRETARY: Senator Connor.
SENATOR CONNOR: Present.
THE SECRETARY: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Here.
THE SECRETARY: Senator
Dollinger.
SENATOR DOLLINGER: I'm here.
THE SECRETARY: Senator Duane.
(No response.)
THE SECRETARY: Senator Espada.
(No response.)
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Present.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Present.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Present.
THE SECRETARY: Senator Gonzalez.
1383
(No response.)
THE SECRETARY: Senator Goodman.
(No response.)
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Present.
THE SECRETARY: Senator
Hassell-Thompson.
(No response.)
THE SECRETARY: Senator Hevesi.
(No response.)
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Present.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Here.
THE SECRETARY: Senator Kruger,
excused.
Senator Kuhl.
SENATOR KUHL: Present.
THE SECRETARY: Senator Lachman.
(No response.)
THE SECRETARY: Senator Lack.
SENATOR LACK: Present.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Present.
THE SECRETARY: Senator LaValle.
1384
SENATOR LAVALLE: Present.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Present.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Present.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Present.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Present.
THE SECRETARY: Senator Marchi.
(No response.)
THE SECRETARY: Senator
Markowitz, excused.
Senator Maziarz.
SENATOR MAZIARZ: Present.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Present.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Present.
THE SECRETARY: Senator Mendez.
(No response.)
THE SECRETARY: Senator
Montgomery.
(No response.)
1385
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Present.
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Present.
THE SECRETARY: Senator Onorato,
excused.
Senator Oppenheimer.
(No response.)
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Here.
THE SECRETARY: Senator Paterson.
SENATOR PATERSON: Here.
THE SECRETARY: Senator Rath.
SENATOR RATH: Here.
THE SECRETARY: Senator Sampson.
(No response.)
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: Present.
THE PRESIDENT: The
sergeant-at-arms is continuing to bring the
members into the chambers.
In the interim, we can continue the
debate on the bill. A quorum is present,
Senator Skelos.
SENATOR SKELOS: If we could
1386
return to Senator Padavan's bill.
THE PRESIDENT: The bill is
before the house if there is any further
debate.
Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. Senator Padavan has kindly
been willing to answer a question of mine. I
had several questions.
THE PRESIDENT: Senator Padavan,
do you yield?
SENATOR PADAVAN: Yes.
THE PRESIDENT: You may proceed,
Senator Paterson.
SENATOR PATERSON: Okay. Senator
Padavan, would you explain for the body the
issues that were raised in the case Jackson
versus Indiana, United States Supreme Court
408, and how this case may have actually been
the precursor to the idea that you have to
institute a plea of guilty but mentally ill in
criminal proceedings?
SENATOR PADAVAN: Senator, first
I should explain that this was not my original
idea. I don't take any credit for that.
1387
But I did become aware of the fact
that the State of Michigan, many, many years
ago, had adopted this law. It's been in
effect all that period of time, as are
approximately 19 other states since then.
During my tenure as chairman of the
Mental Health Committee, we dealt with a
number of issues relevant to insanity pleas,
as it related to where and how they were being
treated, incarcerated or not incarcerated.
The pinnacle of that deliberation came about
during the so-called Son of Sam case.
So while I cannot give you a
definitive answer to your question relevant to
the court citation that you referred to, I can
explain to you that this was our attempt to
deal with a very complex issue in a manner
that had proven itself to be successful in
other jurisdictions.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. On the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR PATERSON: Madam
1388
President, if I were able to ask Senator
Padavan about the "fitness to proceed"
hearings -- those are the hearings at which we
determine whether a person can assist his or
her attorney in their defense or whether they
know the nature of the charges that have been
presented against them -- I'm sure that
Senator Padavan would have answered that under
our United States Constitution, without a
finding that a person is fit to proceed, that
they understand those charges and can assist
counsel in their defense, that we cannot try
them.
This doesn't speak to the conduct
of the individual at the time that they
committed the crime, allegedly. This speaks
to whether or not at the time of the trial the
individual can assist their attorney.
If they cannot, we can't go ahead
with the trial. And what we do at that point
is to send them for hospitalization and
further psychiatric evaluation until such time
as they can answer the nature of the charges
against them.
So I raise this to point out that
1389
Senator Padavan understands that there is a
requisite knowledge that a person has to have,
not only to assist counsel in defense but to
know the nature of charges against the
defendant, to know whether or not the act was
right or wrong and to appreciate the sense of
the act that the person has actually
committed.
Now, we have in our laws now the
plea of not responsible by reason of mental
disease or defect, the so-called insanity
defense, speaking to the fact that at the time
that the act was committed the person did not
understand the nature of the act and did not
fully appreciate the rightness or wrongness of
the act.
How we can say that a person is
guilty at the time that the act was committed
is beyond me. How we can actually say that
the person is guilty because they understood,
when it's quite possible that they didn't
understand, is the reason that we have
configured our defense to be not responsible.
When we say "not responsible," we
don't mean that the person didn't commit the
1390
act. We mean that the person really lacked
the requisite knowledge to understand what
they were doing, to put it simply. So the
interesting -
THE PRESIDENT: Go ahead,
Senator. I think you can be heard better now.
SENATOR PATERSON: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR PATERSON: The
interesting aspect of Senator Padavan's bill
is that he says that the person is mentally
ill but they did understand the nature of the
charges and they did actually know the
difference between right and wrong.
Well, if that's the case, then the
person is just guilty. The mental illness is
an ancillary fact that should probably be
treated in the correctional institution but
doesn't relate to the nature of the crime
because the person, according to Senator
Padavan, knew what they were doing, so they
should be found guilty.
By the way, there are very few
instances where the not-responsible plea is
1391
used and even very few times when it's used
when it's actually sustained.
So I submit, Madam President, that
the law is operating quite successfully as it
is now. Senator Padavan actually defeats the
nature of his own bill when he puts into the
definition of what would be guilty but
mentally ill the definition of what would just
be guilty.
And if we are now going to track
the individual's mental disease or disability
through the correctional institution, that's a
decision that I think the institution and the
Office of Mental Health can actually make
without the intervention of the State
Legislature in terms of passing laws.
So looking at this legislation, I
don't understand why we would need a third
plea of guilty but mentally ill when all of
the ambits of the actual finding exist in the
other two pleas of either guilty or not
responsible by reason of mental disease or
defect.
What I think Senator Padavan fears
is the situation that was addressed in the
1392
court case Jackson versus Indiana, which is
where many times, Madam President -- if, for
instance, Senator Skelos was upset by the Good
Samaritans or people defending themselves
being sued by the perpetrator, I suggest he
would even be more outraged to find that there
were people who were found to be not guilty by
reason of insanity in some states, they went
to prison, they were converted to civil
commitment -- because they weren't guilty of a
crime, so it was a civil commitment, not a
criminal one -- and when the psychiatrists
ruled that they were now able to understand
and were now cured of their mental disease,
they were then released from hospitalization
and went out to commit other crimes.
THE PRESIDENT: If the members
would please take your conversations out of
the chambers, please.
SENATOR PATERSON: Well, that
would be rather difficult, Madam President.
(Laughter.)
THE PRESIDENT: If the members
would please have the conversations subside in
the chambers. Clarification on that ruling.
1393
Senator Paterson.
SENATOR PATERSON: Thank you.
Thank you, Madam President.
My admonition, Madam President, is
that Senator Padavan has raised a very valid
issue. I don't quarrel with the fact that he
has put together this legislation. My issue
is that he hasn't cured it and that there are
agencies working with law enforcement that I
think can.
I don't think a person who is
civilly committed should slip into a state
where they can leave the jurisdiction, go back
out of the jurisdiction and harm others,
when -- only because a couple of psychiatrists
have now thought that they are able to operate
and live peacefully in society. I agree with
him.
But I think that our passage of the
not-responsible plea, which orders up to a
six-month commitment and a hearing regularly
to determine whether or not the person has
been cured of their mental disease, is really
the more apt way to go. This way even law
enforcement, through the local district
1394
attorney's office and the Attorney General's
office, can monitor these situations, standing
in on behalf of the public.
And if it is determined at that
hearing that the accused still suffers from
that disease, they are ordered to be retained,
an order of retention. They cannot for
another year leave the custody of the Office
of Mental Health until there is a finding that
they have been able to fight through this
illness.
So I really don't understand any
reason to vote for this legislation. I know
that, as Senator Padavan says, we've debated
it seven times. I've gotten up and debated it
with him seven times because I do think it is
legitimate enough that we review it every
year. But I have not changed my mind.
Senator Padavan has not passed this
bill in the Assembly. His objection to me
asking questions is noted. But I doubt that
anybody in the other house would want to take
his questions as to why they can't pass his
bill if he's going to take the point of view
that he's going to limit me to one question.
1395
But I still appreciate the nature
of the legislation and his dedication to an
issue that he believes in, and one that 15
years ago I actually agreed with him. Over a
period of time I've come to the conclusion
this is not the way to go. I suggest a no
vote on this legislation. With all due
respect to Senator Padavan's effort, I think
that the law as it stands now addresses these
situations very well.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3 -
THE PRESIDENT: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Madam President. On the bill.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HASSELL-THOMPSON: Just
an observation on my part. I don't enjoy the
legal expertise of either of the gentlemen who
have spoken. But I know that one of our
biggest issues is there is no such thing as
reform or treatment in incarceration in our
1396
prison system today. And therefore, to tamper
with the existing sanity bill and to include
this does not do the society nor the person
any good.
There is nothing in here that is
guaranteeing the treatment that is so
necessary in a plea of insanity. Our prisons
are not capable nor willing to facilitate the
kind of treatment that people who are
genuinely mentally ill need to be provided
with.
Therefore, I would like to vote no
on this bill, Madam President.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, will the sponsor yield to a
question.
THE PRESIDENT: Senator Padavan,
do you yield?
SENATOR PADAVAN: I would yield
to a question, Senator Dollinger. A question.
SENATOR DOLLINGER: Thank you.
THE PRESIDENT: Senator
Dollinger, you may proceed with a question.
1397
SENATOR DOLLINGER: Thank you,
Madam President.
Senator Padavan, I think we've
debated this bill a number of times, as has
Senator Paterson.
My question, through you, Madam
President, this bill was proposed 15 years
ago. Nineteen states, as you properly point
out, already have it. Could you describe the
circumstances, do you know of any cases from
those 19 states in which this specific statute
has been used? Just to give us an idea of the
types of cases that it would be applied in in
New York.
SENATOR PADAVAN: Senator, we
have statistics on the number of times it was
used in a number of the states, specifically
Michigan, over a period of years. Senator
Paterson is correct, this is not a very common
plea, obviously, acquittal by reason of
insanity. But when it does come up, it is
very significant.
The kinds of cases are very simply
those which we describe in the bill, where an
individual has sought to be adjudicated on the
1398
basis of acquittal and that acquittal -
inherent in that acquittal is a determination
that the person did not know the consequences
of his act. Which can be legitimate in many
cases. And this bill does not eliminate that
plea.
However, when it is determined -
and contrary to some of the points made
earlier, the bill is very specific as to how
this determination must be made. It begins on
line 12 of page 1 and continues all the way to
line 3 of page 2, the specific procedures that
must be followed by the court in making a
determination that a guilty but mentally ill
plea is appropriate.
After that process is competed, and
only after that process is completed -- and by
the way, again to reflect on something that
was said a moment ago, the bill specifically
indicates that if a person is found guilty but
mentally ill, treatment will be provided,
either in a mental hospital or in a state
correction facility. And if parole is given,
such treatment must continue thereafter and be
monitored.
1399
That is one of the positive aspects
of this bill. Because currently if someone is
found guilty, meaning their acquittal plea is
not determined to be appropriate, they will go
to a prison and there's no mandate for mental
health care, none whatsoever. So we provide,
I think, a benefit to the individual here, as
well as, I think, a more appropriate way of
dealing with the crime.
But to answer your question, in
most cases that we're aware of, the person
committed a violent act. They initially
sought to be acquitted by reason of insanity,
not knowing the consequences of their act. It
was determined, after hearing psychiatric
evaluations -- as you know, there's an arm of
the court that does that, advises the court -
after that process was completed, it was
determined, yes, there is a level of mental
illness, but not to the extent that the person
did not know the full consequences of his act.
So therefore, an alternative
verdict recognizing mental illness -- as well
as the fact that the person when he shot the
bullet, stabbed the individual, knew that they
1400
were killing them -- did exist.
SENATOR DOLLINGER: Thank you,
Madam President.
If Senator Padavan will yield to -
I have two other questions on the bill, very
specific questions.
SENATOR PADAVAN: No, it was a
question. A question.
SENATOR DOLLINGER: Okay, Madam
President, I assume that Senator Padavan will
not yield then.
THE PRESIDENT: Senator Padavan,
do you yield?
SENATOR PADAVAN: Not any longer.
SENATOR DOLLINGER: Madam
President, let me announce what I would have
asked Senator Padavan, and I'll speak on the
bill.
THE PRESIDENT: Senator, you are
being heard on the bill.
SENATOR DOLLINGER: The concern I
had that I hoped Senator Padavan would answer,
and maybe he'll answer if I ask this question
rhetorically, is on lines 19 and 20 of the
bill it says that the district attorney has to
1401
approve the entry of the plea.
And my question to Senator Padavan
would have been, in the experience of other
states, how likely is it that the district
attorney, who takes the position initially
when the indictment comes through that this
individual was making conscious choices and
therefore could be held criminally liable, how
likely is it that the district attorney is
going to show up at some other point and say,
Oh, we acknowledge that the person was
mentally ill all the time?
It seems to me that if we had had
the ability to ask Senator Padavan that
question, we might find that that provision
requiring the approval of the district
attorney is something of an illusion, that in
most cases these are highly publicized crimes,
as was the terrible tragedy in the New York
City subway system. Those kinds of cases tend
to generate lots of publicity and make it very
unlikely that an elected official like a
district attorney will suddenly consent to
approving the entry of a plea that is contrary
to the indictment rendered by the grand jury.
1402
And I was wondering simply how
likely is it, or what experience do we have in
other states that suggests that the district
attorneys suddenly come into the process at
the time of the entry of the plea and agree
that the grand jury was wrong by indicting
someone under a theory of criminal culpability
by then agreeing that they were mentally ill.
There may be evidence of that, there may be
history behind that that shows that that
works.
Senator Padavan apparently has -
apparently chooses, as is he entitled to, to
not answer that question. But it seems to me
that's a legitimate one, to try to figure out
how likely is it the district attorney will
show up and give his approval.
The second question I would have
asked, had I had a chance, would have been to
simply ask whether the definition of mentally
ill which is contained in this statute mirrors
the definition of mental illness that's used
so many times in the Mental Hygiene Law and
elsewhere.
My goal there is if we're going to
1403
create a statute, pass a law that defines
mental illness -- and it is not the same
definition that we use everyplace else -
we're going to confuse our courts that have to
interpret this law, and we're not going to be
able to find out exactly what it means.
I think we'll lend great confusion
to our courts if we don't have consistency,
Madam President, in the definition of terms in
our criminal statutes that we have in the
remainder of our other statutes involving
mental illness.
My other thoughts on this bill,
Madam President, are well known. But I just
was interested in what happened in the 15
years in other states that would give us some
guidance about how this statute is going to
work, how the definition works, and how this
notion of the district attorney's approval,
whether it's absolutely needed or not or
purely put in here as an illusion for some
kind of circumstance that may never arise.
Those were my questions, Madam
President. My thoughts on the bill, the rest
of the bill, are well known.
1404
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the 90th day.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Madam President,
I'd ask for a slow roll call, please. If we
have could five members join me in that
request.
THE PRESIDENT: Five members are
standing. The Secretary will call the roll.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
THE SECRETARY: Senator Balboni,
excused.
Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
THE PRESIDENT: Senator Breslin,
to explain your vote.
SENATOR BRESLIN: Yes, Madam
President, briefly.
This bill would overturn the
longstanding rule in New York State of
M'Naghten, understanding the nature and
1405
consequences of what you do and understanding
the nature -- the differences between right
and wrong.
And to make such a monumental
change in our law, although I believe that we
do need some remedy when we see the likes of
the Son of Sam be found all right to go into
our regular prison population -- but to limit
debate on such an important, important change
to me, again, is just another evidence of how
this body becomes more stifled and more
stifled.
However, based on that limited
information, I will vote that change and vote
in the affirmative.
THE PRESIDENT: You will be
recorded as voting in the affirmative,
Senator.
THE SECRETARY: Senator Brown.
SENATOR BROWN: To explain my
vote, Madam President.
THE PRESIDENT: Senator Brown, to
explain your vote.
SENATOR BROWN: As a new member
of this house, it's been a little distressing
1406
to me today to hear the debate limited on
important questions such as this, with members
responding that, Well, we have debated this
item for the past seven years, the past 10
years.
Well, I haven't been here for the
past seven years, for the past 10 years, for
the past 15 years, for the past 20 years to
hear some of these debates. So as someone who
earnestly is here to do a good job on behalf
of the citizens that I represent in my
district, and certainly to represent citizens
across the State of New York, it's really
disappointing to hear that members want to
limit the debate. Because for me it would be
very helpful to hear the debate, to hear what
members have to say on this issue.
I'm not here to filibuster, I'm not
here to stall, I'm not here to vote against
what I think is in the best interests of my
constituents or the citizens of the State of
New York. And I'm not here simply for some
false exercise. I'm here to do the best job
that I can. And I think part of being able to
do that best job is to be able to hear the
1407
debate that Senators have on these important
issues and these important questions.
Like Senator Breslin, I am deeply
disturbed that there isn't the kind of debate
on this piece of legislation that I think
there should be. But I'm also going to vote
in the affirmative.
Thank you.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
THE SECRETARY: Senator Bruno.
SENATOR BRUNO: Aye.
THE SECRETARY: Senator Connor.
THE PRESIDENT: Senator Connor,
to explain your vote.
SENATOR CONNOR: Yes, thank you,
Madam President. Thank you very much.
THE PRESIDENT: You're welcome.
SENATOR CONNOR: You know,
I've -- Senator Brown just made the point I
was going to make, playing good leader, but he
made it for himself.
I know those of us who have been
here for a lot of years will say, Oh, this
bill's been around for a long time. I was
1408
once on the Mental Hygiene Committee with
Senator Padavan when -- I think one of the
first years he brought this bill forth, and we
had some interesting debates.
We actually had hearings in those
days. Committees did things like that
regularly, hearings with members both from the
Minority and the Majority there to ask
questions. I remember a professor from SUNY
New Paltz -- Professor Schultz, was it,
Stultz, something -- who was a big advocate
for this, he was a psychologist.
So this is an important,
substantive issue. To say, Well, we've
debated it before, is simply not fair. Maybe
we all -- and I certainly applaud the
Majority, they all did a good job of making
sure there were no new members coming back in
their places, did an excellent job. But we
had a couple of new members come in on this
side, and it really isn't fair to say we've
heard this all before.
You know, I looked back and this
bill actually, either last year or the year
before, had a very lengthy debate. And I
1409
looked at who participated in that lengthy,
substantive debate. And it wasn't when there
was any intimation that people were stalling
or whatever, but it was in fact that year, I
think, Senator Duane, Hevesi, Senator
Schneiderman, they were new members.
This is an interesting bill. It's
an important bill. In some respects, a
different concept for people who have been
trained in the criminal law. And they wanted
to debate it. They're as entitled to debate
it, they were then, as Senator
Hassell-Thompson and Senator Brown are now.
They haven't been here to hear it before. And
it's a sad day when we just close it down and
say, Oh, we debated it last year. Well, they
weren't here. And their constituents have as
much to do -
THE PRESIDENT: Senator Skelos.
SENATOR CONNOR: My position on
the bill, if I may.
THE PRESIDENT: Excuse me,
Senator Connor.
Senator Skelos.
SENATOR SKELOS: Madam President,
1410
point of information. Are we on a roll call
now in explaining our votes?
THE PRESIDENT: Yes, we are,
Senator Skelos.
SENATOR SKELOS: We are. And the
two-minute limit applies?
THE PRESIDENT: Yes, Senator
Skelos, it does.
SENATOR SKELOS: Thanks, Madam
President.
SENATOR CONNOR: Thank you,
Senator. On the bill.
I was almost convinced a few
years -- it has been around a long time. And
I was initially against this. There was a
time when I was in fact, I think, convinced.
There may be a few years where I voted for it,
I'm not sure. I've turned around on it -
THE PRESIDENT: Senator.
Senator, you are over your two minutes and
we'd like you to please wrap up.
SENATOR CONNOR: Thank you. If I
can just conclude.
But I'm voting against it now. And
the reason I'm voting against it now is I am
1411
not convinced, although I am troubled by the
issue. I think juries convict people who are
clearly mentally ill because they view them as
too dangerous to let go. And I don't think
they get the treatment; Senator Padavan is
right.
On the other hand, I don't know
that this is the way to go. I think civil
procedures would work. So I vote no.
THE PRESIDENT: Senator Connor,
you will be recorded as voting in the
negative.
THE SECRETARY: Senator
DeFrancisco.
THE PRESIDENT: Senator
DeFrancisco, to explain your vote.
SENATOR DeFRANCISCO: I vote no,
and I just want to make it very clear it's on
the substance of the vote, not any of the
procedural issues that have been raised.
THE PRESIDENT: Senator
DeFrancisco, you will be recorded as voting in
the negative.
The Secretary will continue.
THE SECRETARY: Senator
1412
Dollinger.
SENATOR DOLLINGER: To explain my
vote, Madam President.
THE PRESIDENT: Go ahead, Senator
Dollinger, to explain your vote.
SENATOR DOLLINGER: I'll conform
to the shot clock.
This bill has a couple of good
things in it. One is Senator Padavan's
inclusion of the back-end treatment is
critically important. I think this is part of
a continuing trend, both as we've done in drug
courts and other places, to recognize that
there are certain disabilities which can
influence people in the judgment of what
constitutes criminal activity and the mens rea
necessary.
Secondly, I think the other
critical thing that Senator Padavan has in
this bill is it applies to all crimes, that
this will not only affect those highly
publicized crimes of violence, but it could
affect smaller crimes as well. People could
be deterred out of the criminal justice system
and into treatment, which is perhaps where
1413
they belong.
But I'm going to continue to vote
against this bill because the questions that I
asked Senator Padavan I think are critical.
There are 19 other states that have tried this
idea, and we don't know whether it's worked or
not. And in the absence, Madam President, of
evidence in other states that the statute
works, that the district attorneys are
actually assisting in the use of this defense
rather than resisting, it seems to me that
we're not operating on the best possible
evidence of success. Until that evidence is
forthcoming, I'm going to continue to vote no.
Thank you.
THE PRESIDENT: Senator
Dollinger, you will be recorded as voting in
the negative.
The Secretary will continue.
THE SECRETARY: Senator Duane.
SENATOR DUANE: No.
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Madam Chair, to
explain my vote, please.
THE PRESIDENT: Senator Espada,
1414
to explain your vote.
SENATOR ESPADA: Well, clearly
this matter, as indicated by its sponsor, has
been here at least seven or eight times in and
of itself. I would venture to guess that
there is still an information gap, there is
still a lot to be discussed as it pertains to
the merits of this bill.
It's clearly a substantial bill, a
substantial matter to really erase any
affirmative defense that any defendant, as
Senator Dollinger indicated, in any crime -
to eviscerate, to take away such a fundamental
right would have to take us back to 1980 when
the major public hearings on insanity-defense
reforms were held.
And to ration out, to ration out
this matter in terms of one question at a time
or to make it as arbitrary as it has been made
here today, is, if I may say, insane as to its
procedural matter in and of itself. How could
we be asked to -- whether it's Senator Brown
or whether it's Senator Espada or whether it's
anyone on that side of the aisle that's new to
this issue -- to vote without knowing what's
1415
happened in 19 other states, to really fully
understand why mental health associations
throughout this country have advocated defeat
of this bill, to really truly understand what
a chance this has of really becoming law in
terms of what the other body, the Assembly,
would have to say on this? All of this would
have to go through severe tests and public
hearings.
It's for all those reasons, and
more that the two-minute rule does not give me
the opportunity to comment on, that I would
vote against this bill.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Aye.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Aye.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Madam
President, to explain my vote, please.
THE PRESIDENT: To explain your
1416
vote, Senator Gentile.
SENATOR GENTILE: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR GENTILE: I must say that
my experience as a prosecutor, in that
experience, one of the most frustrating and
potentially damaging verdicts that I've had
experience with in the criminal justice system
has been the verdict of not guilty by reason
of mental disease or defect.
And I say that because I agree with
some of my other colleagues who have indicated
that if a mens rea can be accomplished -- and
I don't think my microphone is on, Madam
President.
The light just doesn't work?
THE PRESIDENT: It is on,
Senator.
SENATOR GENTILE: Okay. Thank
you, Madam President.
As I was saying, I believe that if
a mens rea can be established in a
prosecution, and a prosecutor can establish a
mens rea, then I believe this verdict of
1417
guilty but mentally ill is an appropriate
verdict. And the fact that this bill does
incorporate the treatment at the rear end of
the sentence is certainly something that makes
this bill potentially something that will
enhance the criminal justice system and the
way we deal with these types of cases.
Unfortunately, we didn't have that
opportunity to discuss it at full length as
professionals on this floor.
Having said that, I believe that
the discussion that we have put forth here
leads me to vote for this bill, for the
reasons I have stated.
Thank you.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative -- in
the affirmative, excuse me.
The Secretary will continue.
THE SECRETARY: Senator Gonzalez.
SENATOR GONZALEZ: Madam
President, to explain my vote.
THE PRESIDENT: Go ahead, Senator
Gonzalez, to explain your vote.
SENATOR GONZALEZ: I think that
1418
the sponsor has indicated that this bill has
been around for six or seven years. And being
that in terms of even this procedure, I may
have been out of the chamber and have been
recorded otherwise to what I am voting as of
today.
It's an issue that's very complex.
I think that the people that deal with mental
illness -- and a lot of people are in need of
that mental illness assistance. Insofar here
as we get crazy going on with what we're
doing, I vote in the negative.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Aye.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Aye.
THE SECRETARY: Senator
Hassell-Thompson.
THE PRESIDENT: Senator, to
explain your vote.
SENATOR HASSELL-THOMPSON: Thank
1419
you, Madam Chair.
When I spoke earlier on the bill,
one of the concerns that I addressed was that
I did not feel that our prison system could
amply handle these types of cases, because
that is not the motivation nor the direction
of prison.
And as I have had a very limited
opportunity to review the budget, there is
nothing that's being allocated in the
Department of Correctional Services or Office
of Mental Health that would ease my mind that
by passing this that there will be a more
substantial amount of money being put and made
available to treat mental illness within the
prison system.
So therefore I continue to vote no.
THE PRESIDENT: Senator
Hassell-Thompson, you will be recorded as
voting in the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Hevesi.
THE PRESIDENT: Senator Hevesi,
to explain your vote.
1420
SENATOR HEVESI: Thank you, Madam
President. I rise to explain my vote on this
legislation.
And I have supported Senator
Padavan's bill in the past, and I'm supporting
it again today. I'm particularly enamored of
the provisions in this legislation that do
provide for treatment for individuals, in
contrast to the current situation under
current law, where somebody may find
themselves having committed a crime as a
consequence or in association with a mental
illness and not have treatment be made
available to them.
I probably would feel a little bit
more comfortable if there had to be a
determination both that the individual knew
the consequences of his or her actions and the
additional factor that those actions were
right or wrong, could make that determination.
But regardless, I do believe that
this legislation strikes a middle ground and
fills a vacuum in current New York State law,
where we're really going to be doing a service
to individuals by requiring them to get
1421
treatment that they otherwise would not have
had provided. And I do believe that there are
adequate safeguards within this legislation to
prevent abuses, by extension, which would
incarcerate individuals who should not be
incarcerated based on their actions.
So I'm going to support this
legislation. But I would again be remiss if I
did not also echo some of the comments of my
colleagues that the lack of debate on this
particular bill -- and this is a striking
example -- is really damaging, particularly to
new members.
My first session here, I listened
to this debate intently, really without
knowing prior to having come into this chamber
how I was going to vote on the bill. And
every time I hear this discussion I really
weigh it back and forth, because this one's a
close call.
So I really feel for my new
colleagues here who did not have that
opportunity. And it's another reason why we
should not be proceeding as we are currently
proceeding.
1422
But having said that, I think this
is a good bill. I commend Senator Padavan for
bringing this to the house. And I support it.
I vote aye.
THE PRESIDENT: Senator Hevesi,
you will be recorded as voting in the
affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Aye.
THE SECRETARY: Senator Kruger,
excused.
Senator Kuhl.
SENATOR KUHL: Yes.
THE SECRETARY: Senator Lachman.
THE PRESIDENT: Senator Lachman,
to explain your vote.
SENATOR LACHMAN: Madam Chair, I
rise to explain my vote at a time of great
distress. I say great distress because at
this moment, the National Association of
Jewish Legislators, recently constituted, is
1423
meeting. I'm the only one who has the agenda.
And there are people from all over the state,
lay leaders of the Jewish community as well as
elected officials, who will be there. So that
is why I'm distressed.
But on the substance of the bill, I
vote no this year as I voted no last year and
the year before. Thank you.
THE PRESIDENT: Senator, you will
be recorded, Senator Lachman, as voting in
the -- it was in the negative. And you will
be so recorded, sir.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Yes.
THE SECRETARY: Senator Maltese.
1424
SENATOR MALTESE: Aye.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Nay.
THE SECRETARY: Senator
Markowitz, excused.
Senator Maziarz.
SENATOR MAZIARZ: Yes.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Yes.
THE SECRETARY: Senator Meier.
SENATOR MEIER: No.
THE SECRETARY: Senator Mendez.
SENATOR MENDEZ: No.
THE SECRETARY: Senator
Montgomery.
THE PRESIDENT: Senator
Montgomery, to explain your vote.
SENATOR MONTGOMERY: Yes, Madam
President. I have in past years voted no on
this legislation, and certainly I'm going to
vote no again today.
I believe that based on prior
1425
debates that we've had, we understand that
there is not necessarily a pressing need for
this. The National Alliance for the Mentally
Ill of New York State have said in their memo
to us that there is no need to limit the
insanity defense, it is rarely used, and less
than 1 percent of all felony cases result in a
not guilty by reason of insanity finding.
I think there are laws that we
already have that cover this, and so I'm going
to vote no on this bill.
THE PRESIDENT: Senator
Montgomery, you will be recorded as voting in
the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Yes.
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Aye.
THE SECRETARY: Senator Onorato,
excused.
Senator Oppenheimer.
SENATOR OPPENHEIMER: To explain
my vote.
1426
THE PRESIDENT: Senator
Oppenheimer, to explain your vote.
SENATOR OPPENHEIMER: I have in
the past supported this. And I'm going to
continue to support it, because I do feel that
since there will be provision within the
system for treatment of the mentally ill, I
feel it's a positive direction. And perhaps a
direction that the prisoner would not have
taken, or she taken, on their own very often.
We know people who have mental
illness who object strongly to treatment and
feel that it is their right to be free of the
demands of society that say you should be
treated because you are mentally ill. And
they deny that they are mentally ill and feel
that it is their prerogative, whether they
want to be mentally ill or they don't want to
be mentally ill.
If I could just say one thing on
the process here. For the fact that this was
limited in debate by the statement of the
sponsor that we have discussed this in the
past, I simply call to mind things that I
recall from 15 years ago where we discussed
1427
every single year, interminably, the death
penalty, the Medicaid funding for abortion.
And this went on year after year, at extensive
debate. And there were always nuances that
were original and that in a sense contributed
to that debate.
And this is an issue, just by
looking at the vast number of people that do
not support this bill -- though I was not one
of them -- but certainly something that had
this kind of opposition, this bill should have
had a very extensive debate. I'll be voting
affirmatively.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Aye.
THE SECRETARY: Senator Paterson.
THE PRESIDENT: Senator Paterson,
to explain your vote.
SENATOR PATERSON: Madam
President, the unfortunate ramification of
this bill is that it confuses people into
1428
thinking that it's a remedy against excessive
uses of the insanity defense, or what we term
in New York State as not responsible by reason
of mental disease or defect.
The fact is that this is a bill
that addresses people who were already found
basically guilty of the crime, who had the
requisite knowledge to appreciate that their
conduct was wrong, and really is a bill
directed more toward the treatment rather than
the actual issue that was before the jury at
trial.
My recommendation to Senator
Padavan is that he write some legislation
enabling for there to be a hearing at the end
of the trial to determine the mental fitness
of the defendant, who is now the convicted
party, as we have in the very beginning in the
trial. And that if that is the case, then
certain mental health procedures supervised by
the State Department of Corrections and the
Office of Mental Health be triggered at that
particular time.
I think that would solve the
problem rather than to create the confusion
1429
that I think this bill allows by making us
think that it really has anything to do with
the insanity defense.
I vote no on the merits of the
bill.
THE PRESIDENT: Senator, you will
be recorded as voting in the negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Rath.
SENATOR RATH: Yes.
THE SECRETARY: Senator Saland.
SENATOR SALAND: Aye.
THE SECRETARY: Senator Sampson.
SENATOR SAMPSON: Madam
President, to explain my vote.
THE PRESIDENT: Senator Sampson,
to explain your vote.
SENATOR SAMPSON: Well, there's
three components to this bill that have
troubled me to some extent, because of the
lack of ability to question the sponsor, such
as how do other states deal with this statute
and how does it work. And also the DA's
willingness to work with the judge and the
1430
defense attorneys to structure such a defense.
But third, most of all, the
resources. We talk about dealing these
individuals once they have pled guilty. But
the point is, where are these resources going
to come from at this point in time?
So those questions have not been
answered. For that reason, I vote in the
negative.
THE PRESIDENT: Senator, you will
be so recorded as voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: No.
THE SECRETARY: Senator
Schneiderman.
THE PRESIDENT: Senator
Schneiderman, to explain your vote.
SENATOR SCHNEIDERMAN: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR SCHNEIDERMAN: I agree
with the statements of my colleagues. This is
an extremely difficult area of law. I have
serious concerns about this legislation,
1431
although I do think it's an effort to address
something that is a problem in our system.
Unfortunately, I think this bill is
subject to the rule that hard cases make bad
law. And there are some very highly
publicized instances where many people
perceive that the current affirmative defense
on our law books in New York State does not
really work properly.
I would urge, though, that less
than one-tenth of 1 percent of our cases
involve any effort to invoke such an
affirmative defense. It is not something that
I believe to be a pressing problem. I think
the system as it exists now is not improved by
this bill.
In particular, I'm very concerned
about the fact that this is not limited to
felonies. I think that the highly publicized
cases are not going to really be where this is
going to have an impact. It's going to be in
lesser offenses. And I think this opens up a
whole Pandora's box which to my mind has not
been satisfactorily addressed in the debate,
the truncated debate.
1432
I think that the question of what
the fiscal impact of this will be, how it's
going to affect the Office of Mental Health,
how it's going to affect our corrections
system has not addressed adequately. And I
think that we really need to deal with these
issues before we move forward with such a
piece of legislation.
There's a fundamental notion in the
law that you're either culpable and or you're
not culpable. And if you're not culpable and
you're culpable, which seems to be what this
bill says, I think the law is tying itself in
a knot.
So I will vote no. I do think,
though, that it's important for us to try and
do something about this area, and I welcome
further unfettered debate about this once we
return to a state of improved civility in this
house.
THE PRESIDENT: Senator
Schneiderman, you will be recorded as voting
in the negative.
The Secretary will continue to call
the roll.
1433
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Yes.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Yes.
THE SECRETARY: Senator A. Smith.
SENATOR ADA SMITH: Madam
President, to explain my vote.
THE PRESIDENT: To explain your
vote, Senator Smith.
SENATOR ADA SMITH: Thank you.
As a longstanding advocate of the
mentally ill, I'm greatly distressed that I
have not been allotted the time necessary to
get the answers to some of my questions that
may allay the fears that I have about what
this bill would do to the mentally ill.
In the past we've had a lengthy
debate and we've had the opportunity to air
what we felt were problems with the bill. And
I believe that it is important, especially for
the new members, to be able to hear the
concerns of others. And from those concerns
and the ideas of others, we all learn, and we
often change our mind.
But since I have not been allotted
1434
that opportunity, I continue to vote in the
negative.
THE PRESIDENT: Senator Smith,
you will be so recorded as voting in the
negative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator M. Smith.
SENATOR MALCOLM SMITH: Madam
President, to explain my vote.
THE PRESIDENT: You may proceed,
Senator Smith, to explain your vote.
SENATOR MALCOLM SMITH: The bill
at face value has some merit. And even as I
was reviewing it initially, I had some -- or
did not have some reservations as to whether
or not I shouldn't support this bill.
However, there are a few questions
that I do still have, obviously relating to
the fiscal implication, clearly whether or not
in other states this statute, how effective it
is. Germane or not, there was some questions
I had with regard to whether or not the mental
competency should be done prior to or after,
as my colleague Senator Paterson raised, or
1435
whether or not the 730 exam process, as some
of the attorneys in the room understand, is
germane to this particular bill. And I wanted
to understand that. And in addition to the
fact that I had some questions around
treatment.
However, I also didn't have the
opportunity to raise the questions, whether
they were germane or not, or whether -- or
even to find out whether or not my questions
had any relevance to it. And because of that,
while I initially thought the bill had some
merit and I was going to vote in the
affirmative, I now have no other choice but to
vote in the negative.
THE PRESIDENT: Senator Smith,
you will be recorded as voting in the
negative.
The Secretary will continue.
THE SECRETARY: Senator Spano.
SENATOR SPANO: Aye.
THE SECRETARY: Senator
Stachowski.
SENATOR STACHOWSKI: To explain
my vote.
1436
THE PRESIDENT: Senator
Stachowski, to explain your vote, sir.
SENATOR STACHOWSKI: I previously
supported this bill. And mostly because after
listening to the debate, it seemed to make
sense, seemed to be a rational alternative.
But on reading the memos, there
were some questions that arose now that had me
a little concerned. And then seeing some of
the practicing attorneys that may deal with
cases like this opposing this makes me wonder,
maybe it's not as good a bill as I thought it
was.
And I was kind of sorry to see the
fact that the sponsor either didn't feel like
or didn't deem it necessary to engage in
debate with people that had questions for him
this year. And I was a little sad to see
that. And I think that maybe I could have
continued to support the bill had that
exchange freely taken place on the floor.
I've been here quite a while now,
and there's tons and tons of bills that I've
heard over and over, and it never seems to
bother me, because there's always either some
1437
new aspect or some new member -- because
somebody left and somebody took their place -
that maybe hadn't heard the bill.
And I know in our case we have a
few new members this year, and it's really not
fair to them at all. And I'm sorry that
people carrying legislation don't deem it
necessary to at least talk about it, at least
to the new members if to nobody else. And
it's kind of a sad day here when that attitude
takes place. But you can do that, because you
can.
And I vote no.
THE PRESIDENT: Senator, you will
be so recorded as voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Stafford.
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
THE PRESIDENT: Senator, to
explain your vote.
SENATOR STAVISKY: To explain my
vote, Madam President.
One of the problems being at the
end of the alphabet is that much has been said
1438
that I wanted to say. I'm not going to change
my name. However -- what can I change it to?
Aardvark?
I am not an attorney. I'm a high
school teacher by training. Senator Gentile
used a phrase here that I didn't have a clue
what he was talking about. Other people,
other members of the Senate have used phrases
where I would have liked the opportunity to
get up and ask what is meant. There are a
number of us who are not attorneys, who do not
understand some of the technical language.
And this is the opportunity for us to ask the
questions.
For example, I do not, as well as I
read the bill, understand what the definition
of mentally ill is. It's not the situation
where, you know, if you see it you know what
it is. I don't think that's the case here.
This -- there are aspects of this
bill which should have been debated far more
thoroughly than they were, and they were not.
For example, as was mentioned, they talk about
crimes. It does not limit the crime to felony
crimes. That is an aspect that troubles me.
1439
However, there were parts of the
bill that I thought were very good,
particularly the aspect of treatment. And I
would have liked to have found out what
provisions in the mental hygiene budget are
going to be included for the treatment of
these mentally ill people should this
legislation pass.
However, I voted against this bill
last year after listening to a full and
thorough debate. And unfortunately, we were
not afforded the same opportunity this year.
But I vote no.
THE PRESIDENT: Senator, you will
be so recorded as voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
SENATOR VELELLA: Yes.
THE SECRETARY: Senator Volker.
THE PRESIDENT: Senator Volker,
to explain your vote.
SENATOR VOLKER: Madam President,
to explain my vote, quickly.
1440
As Senator Padavan, I believe,
said -- but I don't know if he realizes this
is, I believe, the oldest bill still left in
my Codes Committee. I was just looking at the
history of it. It was first introduced in
1983. Well, he just tells me '78, so he's
probably -- but I'm looking at my committee.
Of course, I've only been chairman since 1988,
so I suppose -- but at any rate, this is one
of the most debated bills that we have in this
house.
I have consistently felt, and in
fact, I was -- hard to believe I was with
Senator Padavan when he drafted this bill.
And I believe it had to do with the Son of Sam
and some things that happened about that time.
As the years have gone on, it seems
to me, given what's happened, I think there's
even more reason to do this. But I think the
mental health advocates knee-jerk react
against this sort of thing, and I guess I
understand.
I think my main point, though, is
that this is one of the bills that has
probably been debated more in this house than
1441
just about any bill left in my committee.
It's a bill that's been around for a long,
long time.
I vote in the affirmative.
THE PRESIDENT: Senator Volker,
you'll be recorded as voting in the
affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Wright.
SENATOR WRIGHT: Aye.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Ayes, 37. Nays,
20.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
112, by Senator Libous, Senate Print 1990, an
act to amend the Penal Law, in relation to
authorizing an additional term of
imprisonment.
SENATOR CONNOR: Explanation.
THE PRESIDENT: Senator Libous,
an explanation has been requested.
1442
SENATOR LIBOUS: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR LIBOUS: What this
legislation would do is create stiffer
penalties for possessing a gun while selling
drugs if the individual is convicted of a
felony, and it would also prohibit gun
ownership by that individual who is convicted
of a felony in the future.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. Would Senator Libous -
THE PRESIDENT: Senator Libous,
will you yield?
SENATOR MONTGOMERY: -- agree to
answer -
SENATOR LIBOUS: Absolutely,
Madam President.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Okay, thank
you.
Senator Libous, it is my
1443
understanding that it is already a crime -
when you use a weapon in committing any crime,
that there are already laws on the books that
require a certain level of charge against a
person who commits crime with a weapon, Madam
Chair.
SENATOR LIBOUS: That's correct,
Madam President. Senator Montgomery is
correct.
SENATOR MONTGOMERY: Okay, thank
you. Madam Chair, just one other question.
THE PRESIDENT: Senator, do you
yield for an additional question?
SENATOR LIBOUS: Yes, I certainly
do.
THE PRESIDENT: You may proceed,
Senator Montgomery.
SENATOR MONTGOMERY: Okay. So in
that case, since there's already a specified
sentencing on the books, this bill would
simply add an additional 10 years for the same
crime. So this is really not -- you're not -
this is not a new crime that you're talking
about, this is the same crime, it already has
a level of penalty, and this just adds 10 more
1444
years.
SENATOR LIBOUS: Madam President,
Senator Montgomery is correct that it would
add an additional -- up to an additional
10 years if convicted of a felony, that's
correct.
SENATOR MONTGOMERY: That's -
thank you, Madam President.
THE PRESIDENT: Senator Connor.
SENATOR CONNOR: Yes, Madam
President. If -- rather than perhaps ask the
Senator to yield, maybe -- since he's only
spoken once on it -- I have some concerns, if
I'd just list them, and he if he wishes could
address them.
THE PRESIDENT: Senator, do you
wish to speak on the bill?
SENATOR CONNOR: Yes, I'd like to
speak on the bill.
THE PRESIDENT: Go ahead,
Senator.
SENATOR CONNOR: But as I say,
Madam President, I look forward to Senator
Libous's comments on this, because -- I have a
concern because we know our great Governor is
1445
proposing changes in the drug sentencing laws.
Long overdue. I applaud our great Majority
Leader for last year indicating his
willingness to consider those issues.
And they of course deal with the
length of sentences that people who are in
possession of large amounts of controlled
substances -- and I guess there's a
presumption, if you have a large amount, that
you're going to sell it -- or get caught in an
actual sale are, depending on the weights of
various substances, subjected to -- under the
so-called Rockefeller Laws, to 15 to life.
And I think we've all heard the
injustices of that, where, you know, the
17-year-old girlfriend in the car didn't know
the drugs were there. Nonetheless, she's
deemed to be in possession. And someone with
no prior history, no prior record, in fact
very little connection other than a technical,
legal one to the drug possession, ends up with
15 to life.
We've had members of our judiciary,
from the top down to the county court level,
who handle these cases in effect saying: I
1446
have to impose this unjust sentence in this
case. So I hope we're going to deal with
that.
Now, I'm a little concerned with
the kind of piecemeal approach. And also we
are all concerned about drug dealers who are
also armed to the teeth. That's a concern.
But as I read this bill, there's a couple
of -- I guess my number-one rhetorical
question, which I hope someone will address,
is isn't it already federal law that if you're
convicted of a drug felony or whatever that
you can't possess a rifle or shotgun or buy
it? This bill, therefore, would at least seem
redundant unless you read further.
And it seems to address
misdemeanors. And I'm concerned about who
exactly is this bill designed to get. If it's
designed to take someone who gets 15 to life
under the Rockefeller Drug Laws and add 10
years on -- and is also in possession of a
machine gun, and gets whatever you can get for
that. I defer to Senator Volker on that. I'm
sure with possession of a machine gun you can
probably get five to 10 years for that, and
1447
then add 10 years on top of that because they
also had the drugs.
I mean, I don't know -- how does
this make sense? Somebody gets 15 to life,
concurrent with an eight-year possession of a
machine-gun charge, and now you're adding 10
years onto it, do you add the 10 years onto
the life? I think once somebody gets life,
they should do the best they can to serve it.
I don't know that we ought to add time on top
of it.
And, you know, I -- that wasn't
original. Once when a judge I knew sentenced
someone to 333 years and the person said, "How
am I going to do that?" the judge said, "Just
do the best you can."
So, I mean, I wish the sponsor
would address these concerns. What's the
niche we're trying to get here that isn't
already covered by all these other laws that
have pretty stiff penalties?
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 6. This
act shall take -
1448
THE PRESIDENT: Senator
Schneiderman, excuse me.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. If the sponsor would yield
for a -- the svelte sponsor would yield for a
question or two.
THE PRESIDENT: Senator Libous,
do you yield?
SENATOR LIBOUS: Sure.
THE PRESIDENT: You may proceed,
Senator Schneiderman.
SENATOR SCHNEIDERMAN: I must say
I find -- I respect the comments of my
colleagues, but I do find the notion that
someone who commits a felony should not be
allowed to possess a firearm is an attractive
idea to me, and I think that it's something
that we should explore.
My first question is, is this -
this is not -- do I understand this is not
limited to whether it's an illegal possession
of a firearm or not, that if you are legally
possessing a firearm and you're convicted of
dealing drugs you would still suffer this
additional penalty?
1449
SENATOR LIBOUS: That's correct,
Madam President.
SENATOR SCHNEIDERMAN: The second
question is, is there any other prohibition
currently in the law comparable to this? If
you're convicted of a particular crime, any
other types of crimes, do we revoke your right
to possess a firearm?
SENATOR LIBOUS: You know, Madam
President, I'm not sure if there is. But this
is what the intent of this legislation would
do.
SENATOR SCHNEIDERMAN: Thank you,
Madam President. On the bill.
I think this is a terrific idea in
the abstract. I think that we -- in fact, I
would urge Senator Libous that that bill
doesn't go far enough. I think that we
should -- anyone who is convicted of any
felony should not be eligible to possess a
firearm.
I think, though, that the 10 years
is awfully stiff. And I do have concerns
about the people who could be swept up in
this, people who are in possession and sale of
1450
minor amounts of marijuana, the whole issue
that is raised by the Rockefeller Drug Laws.
So I think that the intent is
terrific. I would urge that we consider this
on a broader basis. I know this would be
supported by people in the -
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR DUANE: Thank you, Madam
President. I'm wondering if the Senator would
yield for a question.
SENATOR SCHNEIDERMAN: Yes, I
would yield.
THE PRESIDENT: Senator
Schneerman yields for a question.
SENATOR SCHNEIDERMAN: Senator
Schneiderman too.
THE PRESIDENT: Schneiderman,
excuse me.
Senator Duane, you may proceed with
a question.
SENATOR DUANE: Thank you, Madam
President, the sponsor, whatever the heck his
name is.
I'm wondering, Senator, whether you
1451
have taken a position on the reform of the
Rockefeller Drug Laws, since you raised that
issue in your comments.
THE PRESIDENT: Senator Duane,
I'm going to clarify. The Senator is Senator
Libous. And please keep your comments
relevant to the bill at hand. Thank you,
Senator.
Go ahead, Senator Schneiderman.
SENATOR SCHNEIDERMAN: Yes, thank
you. I am -- I know, but she just was
cautioning you not to make comments about -
Civility. Civility.
THE PRESIDENT: Thank you.
SENATOR SCHNEIDERMAN: Thank you.
THE PRESIDENT: You may
definitely proceed, Senator.
(Laughter.)
SENATOR SCHNEIDERMAN: My
position is that the Rockefeller Drug Laws
have been in need of reform for many, many
years. It's a wholly irrational system. It
is a disgrace, quite frankly, that we've not
been able to do anything on this, and I think
reflects more of a lack of political will than
1452
any conceivable argument on the merits
relating to the criminal justice system.
I was encouraged last year when
Senator Bruno said he would consider it.
Somehow or other the other house chose not to
follow his lead, which they do at their peril.
This year I'm encouraged that the Governor,
perhaps attempting to rectify what some of us
perceive as his inadequacies in other areas,
is trying to take the issue on. I hope that
they will be reformed.
And I would like to see this
bill -- and this was really my point
earlier -- put in the context of a reform of
the Rockefeller Drug Laws. I think that the
concept of additional time for possession of a
firearm is a great concept. I think that
we -- last year in this house we took a
tremendous step forward on gun safety and gun
control legislation. I commend Senator Libous
for staking out this new ground. I think that
he's welcome -- he would be feted in my
district, or even in Senator Duane's district,
for such an aggressive approach to guns. But
I do think that it has to be done in the
1453
context of a reform of the Rockefeller Drug
Laws, which I do favor.
SENATOR DUANE: Thank you. Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR SCHNEIDERMAN: I'll yield
for just another couple of questions. I don't
want to get carried away here.
THE PRESIDENT: Thank you,
Senator Schneiderman.
Senator Duane, in the context of
not getting carried away, you may ask another
question.
SENATOR DUANE: Not that it makes
it any better, but the "heck" I referred to
actually referred to Senator Schneiderman -
so I apologize for that -- and not to
anyone -
SENATOR SCHNEIDERMAN: Well, I
appreciate your apology, and I accept that.
Thank you, Senator Duane.
SENATOR DUANE: Thank you.
Now, I know that you're aware that
1454
in addition to the problem of the Rockefeller
Drug Laws we also have the issue of
determinate sentences for second felony
convictions. And I'm wondering if you've
considered that as you considered this
legislation before us today.
SENATOR SCHNEIDERMAN: Yes.
Actually, this points up another aspect of
this very difficult issue.
I believe, through the historic
trend of being perceived as being soft on
crime, we have moved towards determinate
sentencing at a very aggressive pace in
New York State over the last twenty years.
The issue of determinate sentencing is
something that will be debated as long as we
have trials, juries, and a criminal justice
system. I think I wrote a lengthy if not
brilliant paper when I was in law school on
the issue of determinate sentencing and what
should be done about it.
I think that the problem of
determinate sentencing for second felonies and
the efforts in fact to impose determinate
sentences for parole violations, for first
1455
felonies, relates very, very strongly to this
issue. When you add a term of up to 10 years,
which is -- I note that is not a determinate
sentence. That bestows great discretion on
the trial court -- the problem is that that's
lapped on top of other determinate sentences.
That really suggests that in many instances
this would provide for a punishment wholly out
of proportion to the crime.
SENATOR DUANE: Thank you. Madam
President, begging the Senator's indulgence
for yet another question, would he yield?
THE PRESIDENT: Senator, do you
yield?
SENATOR SCHNEIDERMAN: Yes, I
will yield for another question.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you very
much.
I'm sure the Senator is aware that
one of the things that we've been discussing
is the whole issue of parole. And I'm
wondering if he believes, in light of what the
Governor discussed in regard to eliminating
1456
parole, whether or not he believes that parole
should be an important part of someone who is
convicted under this law, should it go into
effect, if parole in fact would be there for
them when they are about to be released and
whether or not he believes that's a good
thing.
SENATOR SCHNEIDERMAN: Well, I
think that that -- again, that does point up
the difficulty of adding a 10-year sentence
when we have less and less flexibility in our
criminal justice system.
I think that from a law enforcement
point of view, the elimination of parole is a
very bad idea. And I say this as someone who
worked for two years as a deputy sheriff in a
prison. I do not want to have to work in a
prison system where parole is not available
for many of the people who are residents of
that system. I think parole is a tremendously
powerful vehicle for good in the criminal
justice system, and a vehicle for law
enforcement. I can't emphasize that strongly
enough.
If we don't have parole, then once
1457
again this sort of an addition of 10 years -
which in a more flexible system of less
determinate sentencing, more options for
judges, would not perhaps be so offensive -- I
think that makes it very difficult to vote for
such a measure.
SENATOR DUANE: Thank you. Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator
Schneiderman, do you continue to yield?
SENATOR SCHNEIDERMAN: Yes, Madam
President, I will yield.
THE PRESIDENT: Senator Duane,
you may continue.
SENATOR DUANE: Thank you, Madam
President.
I know that the Senator has heard
about the concerns that some of us share about
the overuse of the SHUs, the special housing
units, in the state correctional system. And
in fact, he's also probably aware of the new
Five Points facility, which is in fact
dedicated only to special housing units.
And I'm wondering whether or not,
1458
under the scenario of this bill being passed,
if he could see a time when people who are
incarcerated under this law could in fact be
sentenced to being in an SHU, and also how he
feels about people being permanently or for
great lengths of time being put in SHUs
without any administrative review of their
sentences to the SHUs.
SENATOR SCHNEIDERMAN: Well, in
this case -- and I think that as the day wears
on, we may be able to relate more closely to
those in SHUs -- I don't really think that
that issue in and of itself relates to my
opposition to this bill.
I think that the concern about the
overuse of SHUs is a part of the whole process
of trying to appear tough on crime by
essentially closing doors down, limiting
flexibility, limiting treatment options,
limiting our ability to reach in -- and this
is something that I've believed in very
strongly since I worked in the prison. There
are at any given time a significant portion of
the prison population who would like to get
out of their cycle of crime and violence if we
1459
make that available. Not a majority. But if
it's even 15 percent, we should not take that
away. That's an important thing to do. And
SHUs are the worst example of removing those
possibilities from the system.
I don't think that that issue per
se relates to my opposition to this bill,
since it's not clear where anyone would go.
But I think the -- unlike the points raised
earlier, because that had to do with the
length of sentences, access to parole, and I
think those do relate very, very closely to
the reasons for opposition to this
well-intentioned but somewhat flawed
legislation.
I think the problem of SHUs is
something, though, that we should certainly
address. And I hope that -- I know that you
and Senator Montgomery, among others, have
participated in hearings on this and related
issues, and I hope that we will be able to
continue that effort.
SENATOR DUANE: Thank you,
Senator. It's always a pleasure to debate on
the floor someone that actually has the
1460
courage behind his convictions and is willing
to discuss how he feels. Thank you, Senator.
SENATOR SCHNEIDERMAN: Thank you,
Senator.
I'm speaking on the bill, if that's
okay.
THE PRESIDENT: Senator
Schneiderman, you may proceed on the bill.
SENATOR MONTGOMERY: Madam
President.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Would
Senator Schneiderman yield for a question from
me?
THE PRESIDENT: Senator
Schneiderman, will you yield?
SENATOR SCHNEIDERMAN: I would
yield to a question from Senator Montgomery.
THE PRESIDENT: You may proceed,
Senator Montgomery, with a question.
SENATOR MONTGOMERY: Yes.
Senator Schneiderman, I respectfully disagree
with you or take issue with you. Are you
implying that this chamber is in a lockdown?
1461
Are we in lockdown? Madam President, are we
locked down, as an, i.e., SHU? You said that
we were somehow in SHU -
SENATOR SCHNEIDERMAN: No, no,
no. If I may clarify, Madam President. No, I
was just -
SENATOR MONTGOMERY: Is this a
lockdown for legislators, for Senators, in
this chamber?
SENATOR SCHNEIDERMAN: Well, I
guess that -
SENATOR LIBOUS: Madam President.
SENATOR MONTGOMERY: Because I
resent -- I do not want to be considered -
SENATOR LIBOUS: Madam President,
point of order.
THE PRESIDENT: Senator Libous.
SENATOR MONTGOMERY: -- as an
inmate in lockdown.
THE PRESIDENT: Senator
Montgomery, Senator Libous has the floor.
Senator Libous.
SENATOR LIBOUS: Madam President,
point of order. This discussion is not
germane to the bill. As a matter of fact, I
1462
don't even recognize any of the discussion on
the floor that pertains to this piece of
legislation.
SENATOR SCHNEIDERMAN: Madam
President, I can attempt to respond.
No, this is -- I don't think we're
in any way, shape or form in a lockdown. I
think that -- but, you know, I suppose there
is an analogy that could be made.
SENATOR LIBOUS: Point of order,
Madam President.
THE PRESIDENT: Senator Libous,
your point was well taken.
Senator Libous, do you have another
point you'd like to make?
SENATOR LIBOUS: Once again,
Madam President, I don't believe that the
discussion or the debate on the floor between
the two Senators is germane to the subject
that should be on the floor at this time.
THE PRESIDENT: Thank you,
Senator. As President, I was about to remind
Senator Schneiderman to keep your comments
germane to the bill at hand.
SENATOR SCHNEIDERMAN: Certainly.
1463
Thank you, Madam President. I'm just trying
to respond to questions.
I think that finally the other
point that I want to make is that other states
have dealt more broadly with the issue of the
consequences of possession of a firearm when
committing a felony. And I think that as we
move forward in this bill we've seen before
and perhaps will see again, I would urge the
sponsor to take a look at the possibility of
making this a broader piece of legislation.
Because really, I don't know why
you would say that if you're selling drugs and
you're in possession of a firearm, you get an
additional penalty, but if you stab someone in
the back and you're in possession of a
firearm, you wouldn't. I mean, there are
crimes where you rob a bank and you're in
possession of a firearm as opposed to not
being in possession of a firearm.
Now, there are certain other crimes
that have within the definition of the crime
provisions related to whether you're armed or
not, but many do not. And I don't really see
any reason why we should restrict this to drug
1464
possession or drug sale. I think it's
something that has far broader application.
I'm going to vote no, but I think
this is an idea that we have to pursue, and I
look forward to us pursuing it together.
Thank you.
THE PRESIDENT: Read the last
section.
Senator Brown.
SENATOR BROWN: Madam President,
if the sponsor would yield for a question.
THE PRESIDENT: Senator Libous,
do you yield?
SENATOR LIBOUS: Yes, Madam
President, I yield.
THE PRESIDENT: You may proceed
with a question, Senator Brown.
SENATOR BROWN: Thank you, Madam
President.
I am concerned, as I'm sure all of
us are concerned, with the effects that drug
dealing have on our society, and further
concerned about the violent elements of drug
dealing. Of course, if someone is drug
dealing and using a weapon, to me it makes the
1465
situation even worse and potentially more
dangerous to society.
Senator Connor, when he rose
earlier, Senator Libous, asked the question
about does this provide a redundancy in the
law. And I didn't hear an answer to that.
And I'm just concerned about your response to
that question.
SENATOR LIBOUS: Madam President,
through you.
Senator, I don't believe it does.
And certainly this chamber takes up a number
of pieces of legislation over the course of a
legislative session. And as far as making
legislation tougher, that's something we do
all the time. So I don't see it as having an
effect as Senator Connor felt it did.
SENATOR BROWN: Madam President,
through you, if the sponsor would yield for
just two more questions.
THE PRESIDENT: Senator Libous,
do you yield?
SENATOR LIBOUS: I'd be happy to,
Madam President. Certainly.
THE PRESIDENT: You may proceed,
1466
Senator Brown, with two questions.
SENATOR BROWN: So presently,
then -- and I heard Senator Libous's answer to
my original question. But presently if a
person was in the circumstances where they're
dealing drugs and they have a weapon, there
are no laws on the books -
SENATOR DUANE: Madam President,
please, I'm having trouble hearing. There's a
telephone conversation happening here at the
dais. And I can't hear from this corner
because of the other phone conversation. It's
happening right here, Madam President. Is
that permitted?
THE PRESIDENT: Yes, it is,
Senator. I'm not having any trouble hearing.
But if you are, I will gavel and remind
everyone to keep their voices up.
SENATOR DUANE: Madam President,
are the phones open to all Senators?
THE PRESIDENT: Senator Brown,
you may proceed.
SENATOR BROWN: Yes. So there
are no laws presently on the books that would
provide the same kind of penalty that this law
1467
provides?
SENATOR LIBOUS: I don't believe
so, Senator.
SENATOR BROWN: And my final
question is, is this piece of legislation
designed to be a deterrent to people who are
engaging in the dealing of drugs from carrying
weapons at the same time?
SENATOR LIBOUS: Senator, I think
it does a couple of things. It makes the
penalties much more severe for those who are
possessing a weapon and committing a drug
felony, as you know from the way the bill is
stated. It also falls in line with, I think,
a number of pieces of legislation that have
crossed this body last year that dealt with
tougher penalties in taking guns out of the
hands of those criminals who should not have
those weapons.
And I think this piece of
legislation really complements what many
members in this chamber voted for last year.
SENATOR BROWN: Thank you.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
1468
SENATOR HEVESI: Thanks. Madam
President, would the sponsor yield?
THE PRESIDENT: Senator Libous,
will you yield?
SENATOR LIBOUS: I'd be more than
happy to, Madam President.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Thank you, Madam
President. I was wondering if the sponsor
would indicate to the house whether or not
there is a requirement in this legislation
that the preclusion from possessing a rifle or
a firearm was somehow enforced other than in
fact.
SENATOR LIBOUS: Madam President,
could we hear that question one more time?
There was some distraction.
THE PRESIDENT: Senator Hevesi,
could you -- we're having difficulty hearing.
Please remind the members to keep
your conversation limited in chambers.
Go ahead, Senator Hevesi.
SENATOR HEVESI: If I may, let me
elaborate, because my question was really not
1469
clear to the sponsor. And if you'll indulge
me.
SENATOR LIBOUS: Do you mind if I
sit until you're finished?
SENATOR HEVESI: Not at all.
A few years ago, before I was
elected to the Senate, while I was working for
another State Senator, I did some research
into this issue and found that if you go to
buy a rifle or a shotgun in New York State,
the only requirement that presented itself
from purchasing that weapon was to fill out a
form from the Alcohol, Tobacco and Firearms
Bureau, Form 4473, where you as the purchaser
certify that you were not a fugitive from
justice or mentally incompetent or had, you
know, been convicted of felonies, what have
you. And nobody ever checked those forms, and
the owner of the gun store was in no way
required to even report that information to
ATF unless the store closed down.
So my question to you is, Senator
Libous -- and I think this is a good bill -
that if we go ahead and do this, is there any
component in the law right now, or in this
1470
bill -- and I don't think it's in this bill -
that would require someone who is selling a
rifle or a shotgun to actually check and see
whether or not the individual who is seeking
to purchase the weapon is precluded from doing
it by this bill that we're about to pass
today?
SENATOR SCHNEIDERMAN: Good
question.
SENATOR LIBOUS: Yeah, this would
require the court to deem someone unsuitable
to possess. And that under federal law,
counsel tells me that there is a background
check to determine whether or not someone is
qualified. So the court would issue this.
And it would be issued no different than under
the legislation that was passed last year in
this house.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
SENATOR LIBOUS: Sure.
THE PRESIDENT: Senator Libous,
you do yield?
You may proceed, Senator Hevesi.
SENATOR HEVESI: Just for
1471
clarification, your understanding is that
under New York State law, if I go to buy a
rifle or a shotgun, a background check is
mandated?
SENATOR LIBOUS: A background
check is mandated by federal law, Madam
President. And if the dealer does not do it,
he is violating New York State law. We
enacted that last year.
SENATOR HEVESI: Would the
sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR LIBOUS: I'd be happy to.
THE PRESIDENT: You may proceed,
Senator Hevesi.
SENATOR HEVESI: Senator Libous,
I'm unfamiliar with this. If this was a
result of the gun legislation that we passed
lass year, my understanding was that that
legislation did not require any additional
background checks or what have you in New York
State, it simply made the possession of
certain firearms illegal under state law,
mirroring the federal legislation in order to
1472
enable state prosecutors to have an additional
tool in their arsenal to pursue individuals
who are guilty of these crimes.
So just to clarify, is it the case
that under the legislation we passed last year
that now if an individual goes to purchase a
riffle or a shotgun, they are required under
New York State law to have a background check
performed on them?
SENATOR LIBOUS: Once again,
Senator, the dealer is required to do the
check under federal law. If that dealer does
not do it, it is then in violation of the law
that we passed last year.
SENATOR HEVESI: Thank you, Madam
President. On the bill.
THE PRESIDENT: Go ahead,
Senator, on the bill.
SENATOR HEVESI: Thank you. And
I thank Senator Libous for bringing this
legislation to us. I've supported this
legislation the past two sessions.
I would simply suggest that this
legislation could be a bit tighter by
recognizing the fact that New York State law
1473
should also require a background check. And
I'll take Senator Libous's comments at face
value, since he has always proven to be
knowledgeable and trustworthy, particularly on
the floor.
This is a good piece of
legislation, particularly in light of the fact
that it recognizes, not just with the rifle
and shotgun component, but that those who are
drug dealers who ply their trade utilizing
weaponry should be subject to much more harsh
penalties. I'm not sure why these two things
are juxtaposed within the same bill, but that
doesn't in any way prevent me from supporting
it.
So I commend Senator Libous on
bringing this legislation. I think it's well
intended, and I hope the Assembly passes it
and it becomes law. Thank you.
THE PRESIDENT: Senator
Dollinger.
SENATOR DOLLINGER: Madam
President, will the sponsor yield just to one
question? I want to clarify one thing Senator
Hevesi said.
1474
THE PRESIDENT: Senator Libous,
do you yield?
SENATOR LIBOUS: Yes.
THE PRESIDENT: You may proceed,
Senator Dollinger.
SENATOR DOLLINGER: Am I correct
in my understanding that under revised law,
because of the law we changed last year,
there's now a certification requirement for
rifles and shotguns in this state?
SENATOR LIBOUS: Madam
President -- and again, Senator Dollinger, it
is under the federal, federal law that the
dealer -
SENATOR DOLLINGER: But through
you, Madam President, I just want to clarify
the question. Does that rule apply to
purchases of rifle and shotguns? Which in our
state, in the past, we've had no prohibition
against. My understanding is that that
applied to purchase of rifles and shotguns at
gun shows, but not to purchase at retail. If
you went into Wal-Mart or to K-Mart or to
Sears, you could buy a shotgun without a
certification.
1475
SENATOR LIBOUS: Madam President,
counsel advises me again that licensed dealers
must provide a background check before someone
purchases a shotgun or a rifle.
SENATOR DOLLINGER: Through you,
Madam President, just one other clarification
question, if Senator Libous will continue to
yield.
SENATOR LIBOUS: I'd be happy to.
I'm sorry, Madam President, I'm only sorry I
didn't -
SENATOR DOLLINGER: And I
appreciate that. We're doing new law. I've
voted for this in the past. I'm going to vote
for this in the future, because I think the
provision that Senator Hevesi referred to
about increasing penalties for drug dealers
who use weapons is a good idea.
I'm simply trying to figure out,
this says that the court, at the time of
sentencing for a violation or a misdemeanor,
or if the charge is a felony and the plea is
down to a misdemeanor or a violation, then the
court will issue a certification that says
you're not fit to possess a rifle or a
1476
shotgun.
My question is, how does that work
to intercept a new purchase of a weapon?
Would that be filed in such a way as to show
up on the FBI background search when someone
applies to buy a rifle or shotgun? Because my
understanding, Madam President, is that I
could walk into K-Mart and buy a rifle or a
shotgun without anyone checking anything.
Still.
SENATOR LIBOUS: I'm advised that
the FBI would pick up the DCJS records and the
court would issue that and it would be in the
record.
SENATOR DOLLINGER: Madam
President, again, just briefly on the bill.
THE PRESIDENT: Go ahead, Senator
Dollinger.
SENATOR DOLLINGER: I appreciate
Senator Libous bringing this to the floor. I
voted for this in the past. And I was -- I
also appreciate his educating me about the
requirement for a preclearance or a background
check in the event that someone buys a rifle
or a shotgun.
1477
With all due respect to everyone in
this chamber, I was a strong advocate for the
bills that we passed last year to change the
law, ban assault weapons and require
background checks. But it was never my
understanding that it would apply in an
instance in which someone goes in to buy a
rifle or a shotgun from K-Mart, Wal-Mart, or
any other retail distributor.
My understanding was that the
changes we made last year were designed to
affect gun shows, which have traditionally
been a more unregulated way of buying and
selling weapons. And I was further intrigued
by the notion that there actually will be some
point at which someone will review the DCJS
records before they buy a rifle or a shotgun.
Those are somewhat new to me. I'm not so sure
whether I understood that when we passed the
law last year.
But this bill I'm going to vote in
favor of because the provision that actually
deals with the problems of guns being used by
drug dealers, I agree with the increased
penalties that Senator Libous proposes.
1478
I'll be voting aye, Madam
President.
THE PRESIDENT: Senator Breslin.
SENATOR BRESLIN: Yes, Madam
President. Would the sponsor yield for, I
believe, only one question.
THE PRESIDENT: Senator Libous -
SENATOR LIBOUS: Yes.
THE PRESIDENT: You may proceed,
Senator Breslin.
SENATOR BRESLIN: Is it true that
the penalty for the possession of a firearm
would be the same whether the firearm is
legally registered or not?
SENATOR LIBOUS: That's correct.
SENATOR BRESLIN: And further -
Madam President, would the sponsor yield to
one additional question.
THE PRESIDENT: Senator Libous,
will you yield?
SENATOR LIBOUS: Sure.
THE PRESIDENT: You may proceed,
Senator Breslin.
SENATOR BRESLIN: Would there be
any flexibility with the sentencing judge,
1479
under the statute, to treat someone who is
licensed versus someone who is unlicensed?
SENATOR LIBOUS: It's up to the
discretion of the judge, Madam President.
SENATOR BRESLIN: Thank you,
Madam President. On the bill.
I commend Senator Libous for this
portion of the bill because it (a) takes
someone who illegally possesses a firearm in
the commission of a drug felony and harshens
the penalty. But it also creates a burden on
those individuals who are properly licensed to
make sure they refrain from criminal behavior,
in this instance as it relates to drugs.
It would seem to me, as has been
mentioned prior, that we should take this kind
of legislation and spread it across to include
all illegalities, all illegalities performed
or done by those people with weapons, either
licensed or unlicensed.
And accordingly, I'll sponsor this
bill and I encourage the sponsor to expand it
in the future.
Thank you, Madam President.
SENATOR CONNOR: Slow roll call,
1480
please, Madam President.
THE SECRETARY: Section 6. This
act shall take effect on the first day of
November.
THE PRESIDENT: Five members are
standing.
The Secretary will call the slow
roll.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
THE SECRETARY: Senator Balboni,
excused.
Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
THE PRESIDENT: Senator Breslin,
to explain your vote.
SENATOR BRESLIN: On the bill.
This bill does much to strength the
law as relates to gun possession, legal or
illegal, when there are drug transactions
involved.
In the future, if we continue to
penalize those people who possess guns, either
legally or illegally, through all forms of
1481
criminal behavior, it will do much to make
this state a safer place.
Thank you, Madam President. I vote
aye.
THE PRESIDENT: Senator, you will
be so recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator Brown.
SENATOR BROWN: Madam President,
to explain my vote.
I'm also going to be voting yes to
this piece of legislation. And I have been
deeply concerned previously, as a city council
member, seeing the effects that people who
deal drugs have on our communities. And
certainly anything that can be done, I think,
to deter violent drug dealers from using
weapons in the commission of crimes is an
important piece of legislation.
I hope that we will be making -- I
hope this will pass, I hope we will
communicate that this law is on the books.
And I hope we will communicate it throughout
the state of New York so people that would be
engaged in the activity of dealing drugs and
1482
who would think to use weapons during the
activity of dealing drugs will think twice
about that.
And so I think that this can have a
powerful deterrent effect, and I commend
Senator Libous for putting forth this piece of
legislation.
THE PRESIDENT: The Secretary
will continue to call the roll.
THE SECRETARY: Senator Bruno.
SENATOR BRUNO: Aye.
THE SECRETARY: Senator Connor.
SENATOR CONNOR: Madam President,
to -
THE PRESIDENT: Senator Connor,
to explain your vote, sir.
SENATOR CONNOR: Thank you, Madam
President.
THE PRESIDENT: You're welcome.
SENATOR CONNOR: I still -- it's
not clear to me how this fits into the overall
scheme of sentencing. And I do wish I had the
benefit of one of those charts we sometimes
make up.
But I'm going to give my good
1483
friend, Madam President, and colleague Senator
Libous the benefit of the doubt. I'm sure
this bill does fit into a scheme. I certainly
know what the intent is here, and the intent
is a good one. And that is to have enhanced
penalties on drug dealers who are apprehended
with weapons. And I certainly think just, at
the minimum, protecting our law enforcement
officers requires that we support this.
Again, I have a concern. I don't
know quite how it fits into everything else.
But I'll take the shorthand version, Madam
President. An extra 10 years for a drug
dealer with a TEC-9 sounds good to me. And
I'm sure it sounds good to all the
constituents I represent.
So that said, I will put aside my
concerns and vote in favor of the bill.
Thank you, Madam President.
THE PRESIDENT: Senator Connor,
you will be record as voting in the
affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator
1484
DeFrancisco.
SENATOR DeFRANCISCO: Yes.
THE SECRETARY: Senator
Dollinger.
SENATOR DOLLINGER: To explain my
vote, Madam President.
I know it was Senator Volker a
couple of years ago who said that sometimes
when we take a real close look at these bills,
we learn a lot -- some of it may be
beneficial, some of it may be detrimental -
about how we're going to vote. But we
certainly come away much better informed.
And this bill has been, through
Senator Libous's good graces, an education for
me. As I explained in the debate on the bill,
I wasn't aware that we had changed the rules
with respect to when a certification would be
applied. This bill, which I think has been
around for a couple of years now, has new
meaning because of what we did last year. I
think that's a good thing.
There is one other piece of the
bill that raises some question in my mind that
no doubt if this becomes law will be the
1485
subject of intense litigation, and that will
be the question of whether we can create a
judicial presumption or a criminal presumption
that if you have the weapon in your possession
and you have ammunition that would be used in
the weapon in your possession, whether you can
combine those two things to come up with the
notion that it is a loaded rifle even though
it doesn't actually have the bullets in it or
the ammunition in it at the time.
But all of those things, I think,
are important parts of this bill. I agree
with the intent of it. I'm going to vote in
favor of it, as I have done in the past. And
it will be fascinating to see (a) whether the
Assembly actually moves this bill and whether
the certification concept with respect to
shotguns and rifles actually works and proves
to be a deterrent to crime.
I vote aye.
THE PRESIDENT: Senator
Dollinger, you will be recorded as voting in
the affirmative on this bill.
The Secretary will continue to call
the roll.
1486
THE SECRETARY: Senator Duane.
THE PRESIDENT: Senator Duane, to
explain your vote.
SENATOR DUANE: Thank you, Madam
President.
The thing that I like the most
about this legislation is that it preserves
judicial discretion in sentencing. As many of
you know, I have strong feelings about the
determinate sentencing of the Rockefeller Drug
Laws and of second felony conviction laws.
But in this anticrime legislation, the
discretion of both the judge and the district
attorney is preserved.
I think that's what we should be
doing in general when we pass criminal laws,
and so I commend Senator Libous for
incorporating that into this legislation.
I hope that this will also help us
as we work towards reforming the Rockefeller
Drug Laws and the second-felony-offender laws
to show that we can trust the judiciary to
have discretion in sentencing matters.
Thank you, Madam President.
THE PRESIDENT: Senator Duane,
1487
you will be recorded as voting in the
affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Madam President,
to explain my vote.
I'd like to commend Senator Libous
for his civility, conduct, courtesies, and
actually for the substance of the bill. It's
a bill that I will support because it is
anticrime, it's antidrug, it's antigun.
I do understand through the debate
now, both in terms of the questions on this
side and the answers on the other side, that
there is obviously a distinction between that
which we will do with respect to the
Rockefeller Laws and this particular
legislation, an understanding that was only
developed through lengthy questions and
answers.
I vote in the affirmative. Thank
you very much.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
1488
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Aye.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Aye.
THE SECRETARY: Senator Gentile.
SENATOR GENTILE: Madam
President, to explain my vote, please.
I don't think my microphone is on.
There's no light on. But it's on? Okay,
fine. Okay, that's great. Okay.
THE PRESIDENT: We hear you,
Senator Gentile. We hear everything you're
saying.
SENATOR GENTILE: Thank you.
Thank you, Madam President.
Madam President, in my previous
life I had the opportunity to prosecute many,
many drug crimes in the county of Queens. And
my experience in prosecuting those types of
crimes, particularly, well, low-level crimes
as well the high-level-investigation crimes of
cartels using the two airports in Queens as
1489
major access points for New York City in
bringing in the drugs and the marijuana -
each and every one of those cases involved
weapons, serious and dangerous weapons.
And in each of those cases that we
prosecuted, we and the police in each of those
cases had to deal with not only the aspect of
the drugs but also the aspect of the weapons.
So certainly I believe that what we
are presented here with today is something
that we as a state should send a strong
message to those who will conduct those types
of criminal activities, and always use the
weapon as an adjunct to that criminal
activity, that we will punish them severely.
So, Senator Libous, you can say
this is out of my own experience as a
prosecutor, you can say it's out of my
conservative way of thinking, or I could say
it's out of my respect for law enforcement.
But I think this is a good bill,
and I will vote in the affirmative.
THE PRESIDENT: Senator Gentile,
you will be recorded as voting in the
affirmative.
1490
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Gonzalez.
SENATOR GONZALEZ: Madam
President, to explain my vote.
Again, this is a particular piece
of legislation that has been around for some
time. But in reference to the judicial
intervention that this bill adds, and my
concerns with the Rockefeller reform, I'm
going to continue to vote in the affirmative.
Thank you.
THE PRESIDENT: Senator Gonzalez,
you will be recorded as voting in the
affirmative on this bill.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Aye.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Yes.
THE SECRETARY: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Madam
President, to explain my vote.
1491
I appreciate, Senator Libous, you
giving us the opportunity to ask the questions
that we need to ask. It is sometimes
construed in my community that I belong to
somewhat of the liberal factor. But I also,
as I have stood here many times and told you,
that the people that I also represent talk
about law and order. And it has to be
balanced. And I think that your attempt in
this legislation perhaps goes a long way
toward doing that.
One of the mayors that I represent
in my district talks very strictly about us
pushing legislation that will do everything
possible to limit the activities of drugs and
weaponry in our communities. So any
legislation of this type that is reasonably
discussed, thought out, and executed is
certainly something that I can support.
So I am voting yes on this
legislation. Thank you, Madam President.
THE PRESIDENT: Senator
Hassell-Thompson, you will be recorded as
voting in the affirmative on this bill.
The Secretary will continue.
1492
THE SECRETARY: Senator Hevesi.
SENATOR HEVESI: To explain my
vote, Madam President.
Madam President, I am pleased to
have the opportunity to vote in the
affirmative on this bill.
If the sponsor will allow me, I did
have the opportunity to do a little bit of
checking on some of the issues that were
raised during my discussion with the sponsor.
And my understanding is that he must have
gotten some misinformation, because in fact if
you go to buy a rifle or a shotgun in New York
State, you do not have a requirement that a
background check be performed, either as a
consequence of the law that we passed last
year or some federal legislation. There is no
such requirement.
And as a consequence, though this
is a very well-intended bill, if somebody is
precluded from possessing a rife or a shotgun
as a consequence of actions that he or she
takes as a result of this bill, I'm afraid we
have compromised the efficacy of the
legislation by not having any mandated
1493
reporting requirement, either from some
component of our criminal justice system to
the Department of Criminal Justice Services
and then on to gun dealers, or by putting the
onus perhaps on the gun dealer pursuant to a
sale to do some type of a check to see if
somebody has forfeited his or her rights under
the bill that we have before us.
And so as a result, though it's a
good bill, I think the drafting could use a
little fine-tuning, because I don't think it's
going to do what we'd like it to do. And
that's unfortunate. Because I think it
should, and I'd like it to.
So I would just suggest to Senator
Libous that you may consider amending the bill
or starring it or doing something in the
future in order to address that. Because I
think most of us would agree it's a good piece
of legislation.
And one of the things, Madam
President, that these debates and discussions
do bring to our attention are problems like
this, which are a direct consequence of the
closer scrutiny that we are providing to these
1494
bills. We're finding some problems with them
that the people of the state should benefit
from us having found them.
And so as a result, I'm glad to
have brought this to your attention. Maybe we
can remedy it. In the meantime, I don't think
that the flaw is so fatal as to preclude my
voting in the affirmative for it. But I hope
that this body and I'm sure that Senator
Libous will take this information and do what
is right by making a better piece of
legislation out of this protecting all
New Yorkers the way this bill rightfully is
designed to do, but doesn't quite accomplish.
So I vote aye.
THE PRESIDENT: Senator Hevesi,
you will be recorded as voting in the
affirmative on this bill.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Aye.
THE SECRETARY: Senator Kruger,
1495
excused.
Senator Kuhl.
SENATOR KUHL: Aye.
THE SECRETARY: Senator Lachman.
SENATOR LACHMAN: To speak on the
bill, Madam Chair.
THE PRESIDENT: To explain your
vote?
SENATOR LACHMAN: Right, to
explain my vote.
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: I strongly
believe in the efficacy of this bill and the
results that I hope will accrue from it. And
I have to commend the distinguished Senator
from Binghamton for sponsoring it this year
and the past year.
And I hope legislation that
increases prison sentences for people who sell
drugs and have firearms while doing that will
go through both houses of the State
Legislature.
Thank you.
THE PRESIDENT: Senator Lachman,
you will be recorded as voting in the
1496
affirmative.
The Secretary will continue.
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Aye.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Aye.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Aye.
THE SECRETARY: Senator
Markowitz, excused.
Senator Maziarz.
SENATOR MAZIARZ: Aye.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Aye.
1497
THE SECRETARY: Senator Meier.
SENATOR MEIER: Aye.
THE SECRETARY: Senator Mendez.
SENATOR MENDEZ: Madam President,
to explain my vote.
Oftentimes Senator Libous sits at
the side of the angels. This is one such
occasion. I think that this bill will do
wonderful things, especially in some
neighborhoods where there is a hierarchy of
drug dealers. The ones who carry the weapons,
the firearms, are the ones that if they do not
like what an underling is doing, would fire on
the kneecaps, something that I learned
recently.
So I really congratulate you for
this bill, Senator Libous.
I want to say, however, that
talking about drugs, all of us do know that
whether it is New York State or not, the
entire country is the greatest consumer of
drugs. So that eventually we will have to
deal with that issue. Because if there were
no demand for the drugs, we would be in better
shape and our prisons would have less number
1498
of inmates, and therefore the taxpayers would
be saving much more monies.
So I congratulate you, Senator
Libous, and I vote in the affirmative.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I also want to join my colleagues
in complimenting particularly Senator Libous
for his being open and willing to answer
questions.
I will continue to be consistent
with the way that I voted in the past. I see
that there are two distinct parts to Senator
Libous's bill, one which says "any sentence
imposed upon a person for a conviction of any
misdemeanor or violation which was the result
of a plea of guilty, the court shall impose a
sentence of judicial certification that such
person is not suitable to possess a rifle or
shotgun."
So that seems to be a very strict
1499
gun control measure, especially since it deals
with misdemeanors and violations.
The second part of the legislation,
as I read it, it says "in addition to the
penalty prescribed by any other provision of
law, be sentenced to an additional term of
imprisonment of not more than 10 years."
So in my mind that simply says that
whatever laws we already have on the books -
which there are many, which have very long
sentences for possession or sale of narcotics
or drugs, illegal drugs, with or without a
weapon, longer sentence with a weapon -- any
crime committed where there's a weapon
involved, there are laws on the books.
The District Attorney of Kings
explained to us that even if a car is stopped
and a weapon is found in that vehicle, every
person in that vehicle can be sentenced to
prison.
So we have, I believe, adequate
coverage of what Senator Libous is intending
to do. We have not, even with all of these
laws, been able to deal with the problems,
especially, of street-level drug dealing. The
1500
best solution in New York City has been
community street policing. That seems to
help. But these laws that provide long
sentences, longer and longer sentences, have
not really helped to clean up the streets of
drug dealing, because it is an economic
venture.
So I am voting no on this
legislation. I do not believe it is
necessary. I do not believe that it will make
any difference in my community. I see the
drug dealers, I talk to them, I see the gang
members, I talk to them, I know that police
officers in my district talk to gang members,
recruit them to get off the streets, to stop
doing what they're doing. They're doing a lot
of this drug dealing by those small drug
dealers on the street corners in Brooklyn,
New York. They are just making their money.
And they will not -- longer sentences will not
convince them that they should not engage in
some economic activity.
So I would hope that we could put
as much emphasis and time and energy and
attention on creating jobs for young people in
1501
the inner city so that they don't have to deal
theses, and take the violence out of drugs by
legalizing them, perhaps. That's what some of
the advocates in our state are advocating.
Because it's gone too far, we're locking up
too many people -
THE PRESIDENT: Senator, at this
point I have to interrupt you. You -
SENATOR MONTGOMERY: I apologize
for taking my time.
THE PRESIDENT: You're well over
your two minutes.
SENATOR MONTGOMERY: But I just
want you to know that I'm voting against this,
and I have a very specific reason for doing
that. There's too many young men and women of
color sitting in our prisons right now, and
this is only going to put more of them in
there.
I vote no.
THE PRESIDENT: Senator
Montgomery, you will be recorded as voting in
the negative.
The Secretary will continue.
THE SECRETARY: Senator Morahan.
1502
SENATOR MORAHAN: Yes.
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Aye.
THE SECRETARY: Senator Onorato,
excused.
Senator Oppenheimer.
SENATOR OPPENHEIMER: To explain
my vote.
I have to say that I empathize with
what Senator Montgomery just said, that too
many people of color are serving extremely
long sentences for minor drug charges. But
that is precisely why I do support this bill.
Because this bill says that people who are
selling the controlled substances and also
have the firearms should serve additional
time.
Those people, more than likely, the
ones that own these guns, they are probably
not the folks who are addicted and are selling
some of this substance in order to feed their
addiction. I think those people very likely
are not the people with the guns. I think it
is the big dealers who have arsenals.
And I can see that there's another
1503
feeling abroad among some of the Senators.
But I think certainly having the
additional time for those that do have the
guns is appropriate and something I certainly
can support. And I hope my theory -- or I
wish my theory were not wrong. But I'll be
voting in the affirmative.
THE PRESIDENT: Senator
Oppenheimer, you will be recorded as voting in
the affirmative. The Secretary will continue
to call the roll.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Aye.
THE SECRETARY: Senator Paterson.
THE PRESIDENT: Senator Paterson,
to explain your vote.
SENATOR PATERSON: Mr.
President -- Madam President, I'm sorry, to
explain my vote.
I'm very moved by the comments that
Senator Montgomery made. There are ways to
address the issue of addiction and drugs in
our communities. There are also ways to
address the issue of sentencing.
I'd remind you, Madam President, of
1504
the Supreme Court case from the '70s, the
State versus Cirro, that demonstrated exactly
what Senator Montgomery was saying, that we
are not rehabilitating anyone in our penal
system, we're only keeping them further away
from their homes and their families, we're
only incarcerating them. And when they come
out they have less community roots, less
desire to change their lives, less information
that they would have needed to change their
lives, and they go back right into whatever it
was, the antisocial behavior that probably
landed them in prison in the first place.
But in this particular piece of
legislation, the use of weaponry -- and as
Senator Connor said: "Ten years for someone
that sells drugs with a TEC-9, that's good
enough for me." Well, it's good enough for me
as well, Senator Connor.
I think that it is incumbent upon
us to recognize what Senator Oppenheimer just
said, which is that really when it comes to
this use of force and this use of firepower,
we're really talking about not the kind of
penny-ante drug dealing you see on the corners
1505
of some of our inner-city streets, but really
what is what is the extension of a
multi-million-dollar business being forced by
individuals who will kill people in order to
make profit, even if it is on the backs of
young people in our communities.
Some of those young people have
been enveloped in this process and have
carried those weapons, and we try to do all we
can for them. The inclination to vote against
this bill is there. But really, the mammoth
consequences of firearms and the way they're
used in this fashion as well as many other
fashions, as we heard from Senator Duane and
Senator Schneiderman's exchange, is something
that we need to address. And I think that
addressing it in this form of legislation such
as proposed to us by Senator Libous is exactly
what we need to do.
I would just caution us that some
of the discussion led by Senator Hevesi made
us recognize that there may be some
applications of this legislation that need to
be touched up before we can really get it
passed in the Assembly.
1506
But I do support the legislation.
I vote aye, Madam President.
THE PRESIDENT: Senator Paterson,
you will be recorded as voting in the
affirmative.
The Secretary will continue.
THE SECRETARY: Senator Rath.
SENATOR RATH: Aye.
THE SECRETARY: Senator Saland.
SENATOR SALAND: Aye.
THE SECRETARY: Senator Sampson.
SENATOR SAMPSON: Madam
President, to explain my vote.
I want to commend the sponsor on
this piece of legislation. And sometimes, as
a defense attorney, I'm torn when I look at
legislation such as this, and also with the
comments Senator Montgomery has stated. But
it comes to a point in time that we have to do
something in our urban areas. And guns and
drugs are a bad mixture, and it leads to them
preying upon innocent young children in our
communities, it leads to innocent people being
killed and sometimes put into perpetual
disability for the rest of their lives.
1507
So at this point, it's a starting
point. And hopefully, as we say, we can deal
with the issues of the Rockefeller Drug Laws
and also deal with the issue of unemployment
that's going on, especially among our youth in
the urban areas.
But this is a starting point. And
I want to once again commend the Senator for
this piece of legislation. Thank you.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative,
Senator Sampson. Thank you.
The Secretary will continue.
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: Yes.
THE SECRETARY: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you.
Madam President, to explain my vote.
I would very much welcome the
opportunity to work on this legislation, as I
expect that we will have a chance to see it
again. I think it makes a very important
statement. I think it is an important effort
to get the issue of the proliferation of guns
1508
and the use of guns in crimes -- particularly
drug crimes, but in other crimes as well -
onto the books.
I don't think that this particular
formulation makes sense, though, for a variety
of reasons, some of which have been discussed.
I think this really exemplifies the difficulty
with our current sentencing laws in the
criminal justice system. Someone who is
convicted of the sale of a controlled
substance in the fifth degree, a relatively
low-level crime, and is in possession of a
legally owned shotgun -- say, some person
dealing drugs from his truck with a shotgun in
the back -- is subject to the same ten-year
possible sentence as someone who is in
possession of an unlawful gun and is convicted
of the most serious type of drug dealing.
I think that the difficulty with
this bill is that it is combining too many
things in one piece of legislation. I think
the first part of it is outstanding. And we
have a similar bill that was introduced last
year, I believe, that essentially said if
you're convicted of any felony in New York
1509
State, you are not eligible to possess a
firearm. And also we introduced a bill that
if you're caught with a firearm intoxicated,
under drugs or drinking, you're not eligible.
I think that is one component of this that we
should address separately, and I would
strongly support that.
I think that the second component,
additional sentencing, has to be dealt with in
the overall context of the reform of our
sentencing laws. We have to see how this
would have an impact, what types of crimes
we're talking about.
I do not accept the distinction
between drug crimes and every other crime. I
think if you commit a crime in the possession
of a firearm, it should be -- I favor an
additional punishment for that. But I don't
think that this bill really addresses all of
the problem, and I think it unfairly penalizes
some people who are not as culpable as others.
However, I do think that this is a
great step forward. I urge that -- I hope
that -- I'm sure that the sponsor and others
who have spoken in support of this I hope will
1510
join us in the current battle, which is to
ensure that the budget contains funding for
the enforcement -
THE PRESIDENT: Senator
Schneiderman, I want to remind you you're well
over your two minutes. If you would wrap up,
please.
SENATOR SCHNEIDERMAN: Yes, Madam
President, thank you.
-- for the enforcement of the laws
we passed last year.
I will vote no.
THE PRESIDENT: Senator
Schneiderman, you will be so recorded as
voting in the negative.
The Secretary will continue.
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Yes.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Yes.
THE SECRETARY: Senator A. Smith.
SENATOR ADA SMITH: Madam
President, to explain my vote. Thank you.
It's well known that the sale of
any kind of illegal substance in our community
1511
is contributing to the death of our children.
And the proliferation and use of guns is
certainly killing our children. But the
combination of the two makes it even a more
profound reason for us to vote for this bill.
But it's not for these reasons that
I vote for the bill. It's certainly Senator
Libous's boyish charm and Aries persuasiveness
that compels me to vote for this bill.
(Laughter.)
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative on
this bill.
The Secretary will continue.
THE SECRETARY: Senator M. Smith.
SENATOR MALCOLM SMITH: Yes,
Madam President, to explain my vote.
I would hope that Senator Libous
and other colleagues around this room would
use the same vigor and interest to take this
bill even a step forward, and that is to
control the sales of the weapons that we find
some of these drug dealers to possess.
I did have some reservations about
the bill, but through the debate and
1512
explanation as it relates to the judicial
discretion that's offered in here, as well as
allowing the DA to have the same, I'm
persuaded to do otherwise. But I do have some
reservations, as my leader, Marty Connor, had,
as it relates to the sentencing and some of
the duplication thereof. I don't believe it
was explained.
However, I do support the bill, and
I just hope that we will allow Senator Libous
to perhaps star the bill and take it a step
forward and deal perhaps with the sale of
these illegal weapons as well.
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue.
THE SECRETARY: Senator Spano.
SENATOR SPANO: Aye.
THE SECRETARY: Senator
Stachowski.
SENATOR STACHOWSKI: To explain
my vote, Madam President.
I rise with the rest of my
colleagues to support Senator Libous's
legislation. I think that any bill that
1513
strengthens the penalties and eliminates maybe
another loophole with which a drug dealer
could get a lesser penalty for the selling of
drugs just because maybe he didn't use the gun
or wasn't caught in the act of violence, by
having the gun and having this legislation we
can assure that that particular person will be
put off the street for a longer period.
If Senator Hevesi is right on some
defects in the bill, I'm sure that in the near
future we'll see another bill by Senator
Libous or someone else that will close those
down also, hopefully, and that we can get the
final answer we want out of this particular
legislation.
So it's with that in mind that I'm
glad to support Senator Libous's bill, even
though I didn't support it for the same
reasons as Senator Ada Smith.
(Laughter.)
THE PRESIDENT: Senator, you will
be recorded as voting in the affirmative.
The Secretary will continue to call
the roll.
THE SECRETARY: Senator Stafford.
1514
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
SENATOR STAVISKY: Madam
President, to explain my vote.
I too commend Senator Libous for
this legislation. However, I have two
problems. One is my wish that this were part
of a comprehensive gun control measure. It
seems to me that it's time that we have
background checks for the issuance of rifles
and shotguns and even machine guns.
Unfortunately, in my community, we recently
had people arrested with AK-47s. And it seems
to me that nobody needs an AK-47 in their
living room.
However, there's one aspect of this
legislation, Madam President, that I find
troubling and that nobody else has mentioned.
And if you will turn to the second page of the
bill, it talks about criminal possession of a
weapon in the second degree, and it talks
about a person. But further down, the next
line, it says "he." In fact, the word "he" is
repeated four or five more times.
And it seems to me, Madam
1515
President, that our legislation ought to be
gender-neutral and that this is something that
we should all strive for. That I'm sure there
are women in this position, and yet I will
question whether the legislation would apply
to women, since it says specifically men.
So despite that inequity, Madam
President, I support the legislation.
THE PRESIDENT: Senator, you will
be recorded in the affirmative on this bill.
The Secretary will continue.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
SENATOR VELELLA: Yes.
THE SECRETARY: Senator Volker.
SENATOR VOLKER: Yes.
THE SECRETARY: Senator Wright.
SENATOR WRIGHT: Aye.
THE PRESIDENT: The Secretary
will announce the results.
THE SECRETARY: Ayes, 55. Nays,
2.
THE PRESIDENT: The bill is
passed.
1516
The Secretary will read.
THE SECRETARY: Calendar Number
115, by Senator Marcellino -
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Madam President,
I'm sorry. Can we at this time take up
Calendar Number 160.
THE PRESIDENT: The Secretary
will read Calendar 160.
SENATOR BRUNO: Thank you.
THE SECRETARY: Calendar Number
160, by Senator DeFrancisco, Senate Print 432,
an act to amend the Social Services Law, in
relation to the transportation of certain
persons.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator
DeFrancisco, an explanation has been
requested.
SENATOR DeFRANCISCO: Yes, this
bill provides that with respect to
transportation for individuals taking
advantage of Medicaid payments of their
medical condition would be by public
transportation if the person is both
1517
physically and mentally capable of doing so.
Senator Paterson, I believe you
rose first.
SENATOR PATERSON: Madam
President, would the sponsor yield for a
question.
THE PRESIDENT: Senator, do you
yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Senator, given
the subjectivity of determining what
transportation is, based on geographic
location around the state, don't you think
that this legislation is overbroad and
restrictive in the sense that it's really on a
case-by-case basis that we can only determine
whether or not to assess individuals for
transportation in the manner that you are in
this legislation?
SENATOR DeFRANCISCO: That's
correct. And that's the way it would be done,
by -- the county Department of Social Services
would determine whether or not the person is
1518
physically and mentally capable.
And if they are, using public
transportation, they would be required to take
it. Just like if they were not on Medicaid
and they didn't have the luxury of receiving a
personal vehicle coming to their home, they
would have to take public transportation under
that situation as well.
And the benefit is some savings to
the taxpayers and also some more funds being
used and spent on public transportation, which
will also help us not to have to subsidize
public transportation as much.
THE PRESIDENT: Senator
Oppenheimer.
SENATOR OPPENHEIMER: If Senator
DeFrancisco would yield for a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead,
Senator.
SENATOR OPPENHEIMER: I'm trying
to understand the genesis for the bill. And
is it before us because you feel there's been
1519
an overutilization by Medicaid patients taking
advantage of more private transportation?
SENATOR DeFRANCISCO: The genesis
of the bill is that in 1999, Central, which is
our public transportation bus service,
indicated that they had a concept that -- and
they indicated that this concept would save
the county approximately -- over half a
million dollars in transportation that is
normally done by cab or some other -- mostly
by cab, quite frankly.
And that it would also enhance -
well, at that point we were subsidizing in a
great amount Central for it, because they
didn't have the ridership they had before. So
the state has and continues to subsidize them.
So the concept came from that
organization. And quite frankly, I thought it
made sense. As long as it was required of
only those who are mentally capable and
physically able to use the public
transportation.
SENATOR OPPENHEIMER: Another
question to the Senator, through you, Madam
President.
1520
We have something in our county
which are like minibuses. And if a Medicaid
patient needs to be transported to a
particular place, they can call the -- this
Bee Line. Do you have something similar to
that in your county?
SENATOR DeFRANCISCO: Yes.
SENATOR OPPENHEIMER: That would
be sort of the in-between, between the public
system and the private taxi.
SENATOR DeFRANCISCO: That's
correct. But obviously the public system is
much less costly than the private system. And
if an individual is capable of using public
transportation, there's no logical reason why
there should be more expense to the taxpayer
and a reduction in ridership of public
transportation.
Obviously, if the person needs
it -- and I've said this every year we've
discussed this -- then they would be entitled
to the higher-cost type of transportation.
Just like if it was your mother who
needed to go to the hospital, if she's on a
bus line and the hospital is on the bus line
1521
and it's convenient, you might not choose to
call a higher-cost service to provide that
transportation if you couldn't do it yourself.
The concept is it's no different
than what someone would have to do in the
event that there was no Medicaid eligibility.
SENATOR OPPENHEIMER: Okay. One
last question, through you, Madam President.
Would the person have to get
permission to get a private vehicle, or would
they get reimbursed if their need was there?
SENATOR DeFRANCISCO: There would
be -- right now there is a -- there would have
to be, under this bill, a determination,
depending upon the illness or the incapacity,
if any, by the Department of Social Services.
If the Department of Social Services says that
they are capable based upon the medical
situation as they see it, they'd have to use
public transportation.
If they think that that's a wrong
determination, like any Medicaid case, there's
a right to a fair hearing. Or I'm sure that
individuals will be given the opportunity to
get medical opinions from their own
1522
physicians. And if it turns out that they are
not capable, then they would not be required
to take public transportation.
SENATOR OPPENHEIMER: Thank you,
Senator.
THE PRESIDENT: Senator Bruno.
SENATOR BRUNO: Thank you, Madam
President.
I would move to withdraw the closed
call of the Senate. And I would also move
that we recess this session until 4:30, and
that I would ask for an immediate conference
of the Majority in Room 332.
THE PRESIDENT: Without
objection -
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Pursuant to
the request of Senator Mendez, who is chair of
the Minority Conference, we would like to have
an immediate conference of the Minority in
Room 314. Immediately.
THE PRESIDENT: Without
objection, the closed call is withdrawn and
1523
the Senate is in recess until 4:30.
The Majority will be meeting in
Room 332; the Minority in Room 314.
(Whereupon, the Senate recessed at
3:03 p.m.)
(Whereupon, the Senate reconvened
at 4:50 p.m.)
ACTING PRESIDENT KUHL: The
Senate will come to order.
I ask the members to find their
places, staff to find their places.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time return to Calendar 160. I
believe there was an explanation underway when
we recessed.
ACTING PRESIDENT KUHL: Calendar
160, by Senator DeFrancisco. The bill is
before the house, and so we'll continue debate
at this time.
SENATOR DeFRANCISCO: I believe I
answered the last question asked.
ACTING PRESIDENT KUHL: Senator
Dollinger.
SENATOR DOLLINGER: Mr.
1524
President, could I just identify who the last
questioner was so I can make sure that they're
here? It would be in the transcript as to who
the last questioner was.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you remember who the last
questioner was?
SENATOR DeFRANCISCO: Senator
Oppenheimer.
SENATOR PATERSON: It was Senator
Oppenheimer.
SENATOR DOLLINGER: Mr.
President, I believe Senator Lachman has a -
ACTING PRESIDENT KUHL: Senator
Lachman, why do you rise?
SENATOR LACHMAN: I rise,
Mr. Chairman, to ask permission to ask the
distinguished Senator a question or two, with
his permission.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to a question from
Senator Lachman?
SENATOR DeFRANCISCO: Yes, I do.
ACTING PRESIDENT KUHL: The
Senator yields.
1525
SENATOR LACHMAN: The bill is a
very interesting one, Senator DeFrancisco, but
it raises certain questions. One question
that it raises is when does one decide, if one
is under Medicaid, whether a medical problem
is serious enough to warrant taking an
ambulance immediately or not?
SENATOR DeFRANCISCO: The way the
bill reads is that it sets out the authority
for the county Department of Social Services
to require that the least expensive
appropriate transportation be granted. It
would be up to the county as to how to
administer that program. And it would be
logical to assume in any case that if it's an
emergency, someone would be permitted to call
a special type of transportation in order to
get the individual to the hospital or to a
doctor.
I think where this would arise, I
believe, is where the county would say that,
after seeing the use of a more expensive
vehicle, it would indicate to the individual
who's using the transportation that a less
expensive alternative is what you're going to
1526
have until further notified.
ACTING PRESIDENT KUHL: Senator
Lachman.
SENATOR LACHMAN: Mr. Chairman,
through you, I'd like to ask Senator
DeFrancisco another question, with his
permission.
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR LACHMAN: When does one
decide that something is serious enough to
warrant an emergency situation? Because there
are many medical problems that fall into that
gray area where you know you have an
emergency, like Vice President Cheney rushing
to the hospital because he had chest pains.
What if someone isn't sure what to
do, whether he or she has an emergency or not?
And then he or she has to go through this
process, which I assume at the very least will
take several hours, if not several days.
SENATOR DeFRANCISCO: He or she
would not have to go through this process if
it's an emergency situation. What this bill
1527
does -- let me finish my answer.
What this bill does is that there
are individuals -- more than in emergency
situations, there are many individuals who
have a specific illness or problem that's
reoccurring for which Medicaid services are
provided, including Medicaid transportation.
The purpose of this is to allow the counties
to require those individuals with these types
of continuing medical problems that are not
emergency situations, that are problems that
we can determine whether or not the individual
can go on public transportation.
If somebody had an emergency
situation, that obviously is not something
that you would be required to have public
transportation, because the bill specifically
says when physically and mentally capable of
doing so.
SENATOR LACHMAN: Mr. Chair,
through you, I have another question, if the
Senator would yield.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Yes.
1528
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR LACHMAN: The problem
that I have, Senator DeFrancisco -- and this
is an honest-to-goodness problem -
SENATOR DeFRANCISCO: I
understand.
SENATOR LACHMAN: -- is who is to
decide, and when do we decide that an
emergency situation occurs. Because people
who don't have means and who can't afford to
take an ambulance might not want to
immediately.
Now, this bill can give the
impression of a division between the haves and
have-nots. Those who can afford an ambulance,
they think they have an emergency, they're not
sure, they immediately go. Then there are
people who are not sure they're in an
emergency situation, they won't be evaluated
for two or three days, it is an emergency
situation, but they're afraid they won't be
reimbursed through the Medicaid, and they
won't go.
SENATOR DeFRANCISCO: This bill
1529
tries to correct a problem between the haves
and have-nots.
If you're not on Medicaid, you have
to make those decisions all the time. And
there's a lot of people that are not on
Medicaid that don't have much income at all.
They have to make a decision based on good
judgment whether it's an emergency situation
and will have to pay or risk not -- or have to
pay, as opposed to someone on Medicaid
presently can take the more expensive vehicle
at any time they choose to.
And if a person who doesn't have
the wherewithal understands that they're going
to have to pay and they have public
transportation available and they're capable
of taking it, they're going to take the least
expensive alternative.
So my point is it's not anything to
punish anyone, it's to put a situation in
where, since we're providing the
transportation, those that are capable of
using the least expensive would have to use
it, just like lower-income people who are not
on Medicaid.
1530
SENATOR LACHMAN: Thank you,
Senator.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, why do you rise?
SENATOR HASSELL-THOMPSON: On the
bill, Mr. Chairman.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, on the bill.
SENATOR HASSELL-THOMPSON: In
committee, when I was first looking at this, I
had some serious issues with it.
But it seems to me that, Senator
DeFrancisco, perhaps in your county the kinds
of things that you think that this bill will
do don't currently happen. The reason I say
that is because in the County of Westchester,
when a person is on Department of Social
Services, they are authorized within a
specific -- within the medical department of
the social services agency, they are
authorized to use a cab. And it's called
"medical transportation provider."
You have to be preauthorized in
order to use that cab's services. You also
have a specific number of times of ridership
1531
during a given period in order to use that
taxi service.
So in the County of Westchester -
and I'm not clear about that portion of the
Bronx that I support, whether or not this is
enforced. But perhaps the County of
Westchester is very avant-garde because they
already do this. The authorization is
predetermined. And so that the person on
Medicaid who has a chronic condition or who
has to attend clinics, medical transportation
is provided for them because of the need for
24-hour access, so that it does reduce the
numbers of ambulance calls and services that
are provided.
And so that if that is what this
bill will do in a universality way throughout
the state of New York, then I can certainly
support it. If that is not what happens, then
I would suggest that your county take a page
out of the book of Westchester County.
ACTING PRESIDENT KUHL: Senator
Stachowski, why do you rise?
SENATOR STACHOWSKI: If the
sponsor would yield, I have a couple of
1532
questions.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to a question from
Senator Stachowski?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR STACHOWSKI: If I heard
you correct back when you first described the
bill -- and I'm not all that familiar with it,
even though I remember it being here before
and I kind of support the idea -- part of the
reason for this bill is to get the public
transit authority also a larger ridership.
And I think most counties have a
cab service already available to Medicare,
Medicaid patients. But if they're able to
take public transportation, this would get the
county to put that system -- would they be
working cooperatively with the public transit
authority to set this up?
SENATOR DeFRANCISCO: Yes, they
would. And that's a secondary reason for the
bill. The main reason is to save money. But
the second -- the natural benefit from it
1533
would be public transportation would get more
resources.
SENATOR STACHOWSKI: And where -
if the sponsor would continue to yield.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR STACHOWSKI: One of the
interesting things I thought of while you were
talking is that in a lot of close suburban
areas there's really not a bus route for a lot
of people that may be more than willing to
take the buses that are in this situation.
And we do have those other vehicles, but in
most counties they don't have enough of those
where they can make arrangements for that
vehicle to pick them up and get them to the
doctor, et cetera.
If we pass this, would this be
maybe a stepping stone to get the county
Social Services to work with the public
authority to maybe make more of that
available, in that it would be another revenue
1534
source for the public authority but also save
money for the Social Services people also?
SENATOR DeFRANCISCO: I would
hope that it would. In fact, when this thing,
this bill -- the idea was first proposed by
Central, they were in the mode of closing
lines to more rural areas, closing some of the
lines because they were in financial trouble
and they weren't providing services in some
rural areas where they were. So that could,
in fact, be a benefit.
SENATOR STACHOWSKI: And one last
question, and it's -- if you would.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR STACHOWSKI: Now, this
one is a little on the edge of this bill, but
I -- it's a suggestion and a question at once.
Social Services also spends a lot
of money bringing daycare mothers with their
children to daycare. And part of the thing,
one of the problems we have with people going
1535
back to work is daycare and getting their
children to daycare, yet the rules prohibit
daycare centers from having bus service -
their own bus, for example, that they could
send maybe if they have a density of
population in a certain community.
Say they service the inner city,
for example, in a certain part of it, and they
could send a bus out and bring 25 kids, and
then all these parents would only have to
worry about getting themselves to work.
Could we maybe look in the future
for a bill that will get the public authority
to maybe set up some kind of system with -
working with some of the daycare centers where
we could be saving money that way and getting
another extended ridership for the transit
authorities?
SENATOR DeFRANCISCO: I would
assume that if there's an economically
feasible route, that all the public
transportation groups would want to gain
revenue. So I don't see why that would
prohibit anything, such -- I think that's a
good idea.
1536
SENATOR STACHOWSKI: Thank you,
Senator.
Mr. President, briefly on the bill.
I'd just like to say that I like
the idea that if people are in a serious
condition, which I think is covered, or at
least hopefully, the condition that Senator
Lachman was talking about where if you really
think it's an emergency and you need an
ambulance, you take it. Ambulance service is
pretty expensive now. And if you don't have
insurance coverage or your insurance coverage
is kind of -- you may not have it long if
you're taking ambulances for no reason,
because it hits them like, at the minimum,
$500 and in some places $700 for an ambulance
ride. And higher.
This is my area. Well, it is in my
area. So -- I'm not talking about Medicaid,
I'm talking about ambulances, period.
So that I think it's a commonsense
thing. And I only mention that cost of
ambulances for people with insurance or those
that don't have it if they're not
Medicaid-covered. So that answers Senator
1537
Smith's question to me as I'm speaking.
I think it's not a bad idea. I
think that if they can take a bus and it just
gets them to the doctor and it's not an
inconvenience to the patient because of some
part of the problem that they have, and it
helps both to lower the cost to the county and
the state -- because we pay part of that -
and it helps the transit authorities gain
ridership, and it helps us to maybe send them
less money, because we pay that also, that
it's not a bad idea and it's something I'm
willing to support at this time.
ACTING PRESIDENT KUHL: Senator
Espada, why do you rise?
SENATOR ESPADA: Mr. President,
on the bill, please.
ACTING PRESIDENT KUHL: Senator
Espada, on the bill.
SENATOR ESPADA: I have heard the
debate very closely. I'd like to apply some
direct and very personal knowledge to this
matter. I run a network of medical centers
that provide close to 100,000 visits a year.
And so this hits directly at home.
1538
And just to embellish, if I could,
what my colleague from Mount Vernon and the
Bronx indicated, we too in the Bronx and
New York City have an adequate system of
accountability and protection against overuse
and overutilization. The fact of the matter
is that what we've heard here in this debate
is that for those patients that have recurring
medical problems -- translation, chronic
disease ailments -- that these are the
patients, a very small core of the overall
population that utilize ambulatory care
facilities, are the ones that avail themselves
of this service.
I don't quite know what the problem
is that we're trying to resolve. As
articulated by the sponsor, we're supposed to
have a problem with the haves and the
have-nots. We see a reality that deals with
people who have too little and people who
nothing at all.
The problem is not to take from the
people that have too little and strip them of
the medically necessary services, the scope of
services that are available to them, to give
1539
it to a population that has no service at
all -- a population that, through measures
chiefly advocated by this body and the
Governor and, for that matter, the former
president of the United States as well,
through welfare reform, have left many, many
people without insurance, many former welfare
recipients without any assistance whatsoever.
While on the surface it may seem as
though we're cutting costs or saving money,
the reality, should we choose to visit this,
is the fact that only people that need this
service usually avail themselves of the
services. If they would not avail themselves
of the services, then they would not avail
themselves of medically necessary services,
which would end up being delivered in the
emergency room via some kind of ambulance.
Which indeed, as Senator Stachowski pointed
out, would be far more expensive a mode of
transportation.
I don't see where the problem is.
I see where it could be certainly
counterproductive. The bureaucratic maze that
this would create in terms of obtaining
1540
approval is of utmost concern, particularly
for people in my district that don't even -
can't always avail themselves of a phone.
So for all those reasons and more,
I think this requires much more thought.
Certainly the sponsor usually proffers up very
thoughtful legislation. I would encourage a
rethinking of this, particularly in the
context of New York City and the realities we
face with our patients.
Thank you.
ACTING PRESIDENT KUHL: Senator
Stavisky, why do you rise?
SENATOR STAVISKY: On the bill.
ACTING PRESIDENT KUHL: Senator
Stavisky, on the bill.
SENATOR STAVISKY: I wonder if
the sponsor would yield for a couple of
questions.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield for a question?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR STAVISKY: Thank you.
1541
You're saying in the legislation,
Mr. President, that prior authorization is
required. Through you, Mr. President, if I
can be informed as to the criteria for the
authorization being issued. On what basis
does the Department of Social Services make
the determination that a person would be
eligible to have an exemption from this?
SENATOR DeFRANCISCO: The last
clause of the change in law: "When such means
of transportation are available to the
recipient and the nature and severity of the
recipient's illness does not necessitate a
mode of transportation other than by such
means."
SENATOR STAVISKY: Following up,
then, since -
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR STAVISKY: -- I read that
section also.
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR STAVISKY: Do you
1542
continue to yield?
SENATOR DeFRANCISCO: Yes.
SENATOR STAVISKY: I mean, you'll
answer another couple of questions?
Presumably buses and subways are
included, Mr. President, as a mode of
transportation. What happens, Mr. President,
when the buses are not equipped with the
access lift that is required for lifting a
wheelchair-bound individual?
SENATOR DeFRANCISCO: Well, then,
one of two things might happen. If the
transportation authority wants the additional
ridership, it may end up in them providing
more lifts in buses, which is another benefit.
If they don't want to do that, then the public
transportation is not appropriate.
SENATOR STAVISKY: Would you
yield for another question?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR STAVISKY: What about the
subways, Mr. President? I represent an area
of Queens which includes an elevated subway
1543
line, the No. 7 subway. Most of the stations
are not wheelchair or even handicapped -- I
hate to use the word "handicapped" -
wheelchair-accessible or accessible to the
disabled.
SENATOR DeFRANCISCO: Same
answer.
SENATOR STAVISKY: They could not
use it.
SENATOR DeFRANCISCO: They
wouldn't be required to use them, because
they're not appropriate.
SENATOR STAVISKY: Mr. President,
I have a couple of other questions, then.
Will he yield for another question?
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to another question?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR STAVISKY: What I'm
leading up to, Mr. President, is the
additional cost in this legislation. Will the
sponsor explain to me how we're going to get
travel vouchers to the individuals who would
1544
be eligible under this program?
SENATOR DeFRANCISCO: I missed
the question, I'm sorry.
SENATOR STAVISKY: Well, the -
I'm looking at the sponsor's memo. And, Mr.
President, it says under fiscal implications
they anticipate cost savings to the state, to
the counties, and to the federal government.
But since much of the transportation in Queens
County -- and I suspect in the City of New
York, as there are other elevated subways, and
subways underground without elevator access -
how can we anticipate a savings when it would
not be available to the disabled?
SENATOR DeFRANCISCO: Well, I
find it hard to believe that your county only
has disabled users of Medicaid, people that
are disabled that are using Medicaid. There
are many, many more individuals, and I'm sure
you could come up with a thousand different
examples. And those people that are unable to
use the public transportation are not going to
be faced with that possibility.
The people that are capable of
using them are the ones where the savings
1545
would come from. And the only numbers that I
have are from my county. And the estimates
are about half a million dollars by our public
transportation company.
And apparently, as far as some of
these administrative nightmares, Westchester
County apparently is already doing it and the
world hasn't come to an end.
SENATOR STAVISKY: Thank you, Mr.
President.
ACTING PRESIDENT KUHL: Senator
Sampson, why do you rise?
SENATOR SAMPSON: Mr. President,
would the sponsor yield for just a couple of
questions.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to a question from
Senator Sampson?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR SAMPSON: Through you,
Mr. President, I want to ask the sponsor if in
fact the prior authorization is denied and the
recipient appeals that decision, do they still
1546
receive those benefits during that period of
time?
SENATOR DeFRANCISCO: I don't
know all -- it would follow the same fair
hearing procedures as for any other Medicaid
issue. And I quite frankly do not know the
answer to that.
SENATOR SAMPSON: So we don't
know exactly if during that period of time
they would receive Medicaid benefits to -
SENATOR DeFRANCISCO: I don't
know how that works. I really don't know the
answer.
SENATOR SAMPSON: Okay.
ACTING PRESIDENT KUHL: Senator
Smith, why do you rise?
SENATOR ADA SMITH: Would the
sponsor yield for a few questions.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield?
SENATOR DeFRANCISCO: Only if she
doesn't call me any names this year.
ACTING PRESIDENT KUHL: He
yields.
SENATOR ADA SMITH: Well, would
1547
you admit that that was an accurate -
SENATOR DeFRANCISCO: Absolutely
not.
(Laughter.)
SENATOR ADA SMITH: Would the
sponsor tell me if I'm correct in the process
that I'm about to outline.
Currently when a person goes to the
doctor, the doctor makes a call to the
provider, which is usually an ambulance
service, indicating that this person is to be
picked up to be brought to their facility, and
the Social Services component provides a
number or whatever to -- that this is
acceptable.
SENATOR DeFRANCISCO: I think the
patient has got to get to the doctor first.
And I think it depends on, I guess, the county
as to whether there's preapproval or you may
use any type of transportation you want.
SENATOR ADA SMITH: Well, the
doctor is the one who -- would the sponsor
yield, please.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to another question?
1548
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR ADA SMITH: Currently the
doctor would be the one to make the assessment
that the person is in need of having this type
of transportation, and the Social Services
would concur.
SENATOR DeFRANCISCO: They could
concur.
But in many counties, at least in
our county, there's no authority -- at least
they don't think they have authority to order
a lesser mode of transportation.
SENATOR ADA SMITH: Will the
sponsor yield for a -
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
senator continues to yield.
SENATOR ADA SMITH: Wouldn't you
think that a doctor would be more likely to
know the ability of an individual to access
public transportation than Social Services,
1549
who may not have ever seen this individual in
life?
SENATOR DeFRANCISCO: Well, from
what I learned about Westchester County today,
there's preapprovals before a doctor gets
involved in the process. If they agree, if
the county agrees with the doctor, then under
those circumstances, the more advanced type of
transportation, the cost of their
transportation is granted.
What I'm suggesting by this bill is
that where there's a determination by Social
Services that it's not necessary, then it does
not have to be provided. If they want to
appeal that and a doctor gives a contrary
opinion, that's where the fair hearing comes.
SENATOR ADA SMITH: Would the
sponsor be kind enough to yield to one more
question.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Sure.
Sure.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
1550
SENATOR ADA SMITH: Will there be
written guidelines that every county must
follow that will be exactly the same?
SENATOR DeFRANCISCO: The
guideline is in the bill. Basically, the
objective standard, as I read before, is
whether or not the person is capable of using
the public transportation or not.
SENATOR ADA SMITH: One last
question.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR ADA SMITH: Wouldn't
you -- wouldn't it be fair to say that the -
you say that it is in the bill. But it would
be also subjective to the individuals at
Social Services who were making this decision.
Each person could look at -- you may look at
something and say it's green, and I may look
at it and say it's purple.
SENATOR DeFRANCISCO: And that's
exactly why there's a fair hearing component
1551
to any Medicaid situation.
You know, when we talk about -- I
just want to add one thing. When we're
talking about the haves and the have-nots,
there's only a finite number of dollars that
are provided to Medicaid. And it's not just
the haves against the have-nots. By providing
a higher-cost transportation when it's not
necessary, there's less dollars to pay for
those other individuals who are truly in need
of some other Medicaid service. And that's
another advantage of this bill.
SENATOR ADA SMITH: On the bill,
Mr. President.
ACTING PRESIDENT KUHL: Senator
Smith, on the bill.
SENATOR ADA SMITH: Having
knowledge that the -- at least the
transportation of the sick by ambulette, that
their fees have not increased in many years,
and that the majority of the individuals that
are being transmitted by ambulette are clearly
in need of this type of transportation, and
also having knowledge in the City of New York
that there is not adequate transportation, I
1552
don't see how this bill would assist us in any
manner in saving.
I believe that it would incur
further costs, because we would have to make
additional kinds of repairs to the
transportation system.
ACTING PRESIDENT KUHL: Senator
Connor, did you wish to be recognized? You
started to stand.
SENATOR CONNOR: If no one else
wishes to -
ACTING PRESIDENT KUHL: Well,
there is one other Senator.
SENATOR CONNOR: I'll wait.
ACTING PRESIDENT KUHL: Senator
Brown.
SENATOR BROWN: Thank you, Mr.
President. Through you, Mr. President, if the
sponsor would yield for a question.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to a question from
Senator Brown?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
1553
SENATOR BROWN: I'm wondering,
Mr. President, if the sponsor has done an
analysis of how many people use alternate
modes of transportation other than the public
transit system now.
SENATOR DeFRANCISCO: I don't
have a study. Other than the savings that
were referred to in my county by the public
transportation system were basically savings
from cabs that were taken to doctors.
SENATOR BROWN: Through you, if
the sponsor would continue to yield.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you continue to yield?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator continues to yield.
SENATOR BROWN: So in your
county -- in the sponsor's county, many people
were taking cabs. What was the savings?
SENATOR DeFRANCISCO: Over
$500,000. I think it was 600 something.
SENATOR BROWN: Thank you, Mr.
President.
ACTING PRESIDENT KUHL: Senator
1554
Dollinger, why do you rise?
SENATOR DOLLINGER: Just if the
sponsor would yield to a question, Mr.
President.
ACTING PRESIDENT KUHL: Senator
DeFrancisco, do you yield to a question from
Senator Dollinger?
SENATOR DeFRANCISCO: Yes.
ACTING PRESIDENT KUHL: The
Senator yields.
SENATOR DOLLINGER: Just again
for my purposes, when this was implemented in
Onondaga County, how many additional fair
hearings, if any, did they have when the
program went into effect?
SENATOR DeFRANCISCO: I don't
know.
SENATOR DOLLINGER: Just on the
bill briefly, Mr. President.
ACTING PRESIDENT KUHL: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I voted in
favor of this bill. I'm going to vote in
favor of it again, although I do with a little
more skepticism because of the comments from
1555
my colleagues.
It seems to me that what this does
is this erects a barricade to Medicaid.
People using the right form of the
transportation will get them to the doctor
appointment quickest, or to the health care
appointment quickest, or wherever they need to
go.
I voted for this in the past
because I think putting a reasonable
restriction is not a bad idea. Based on the
discussion today, it may go too far. I'm
willing to let it try in certainly upstate
counties like Onondaga, where it's worked. It
may work in Monroe.
But if anything, with respect to
one of the things that Senator DeFrancisco
said, which was it was tried in his county and
the world didn't come to an end, that
shouldn't necessarily be the standard under
which we would extrapolate the experience in
Onondaga County to the rest of the state.
With some added skepticism, Mr.
President, I'll be voting in the affirmative.
ACTING PRESIDENT KUHL: Senator
1556
Connor.
SENATOR CONNOR: Thank you, Mr.
President.
I'm going to vote against this.
And it's not because I don't appreciate what I
think Senator DeFrancisco's point is in
advancing this bill. But as he quite candidly
noted, this arose out of a problem they
experienced in his area. And I think it's a
real problem in trying to apply a statewide
standard.
I don't know that the word "public
transportation" meets what we ought to do. I
would support a bill that says in the most
appropriate and efficient and cheapest, or
least expensive, mode of transportation.
In New York City, in my experience,
there are many of the type services,
Access-A-Ride and other kinds of services that
are available for disabled patients and so on,
that are really quite reasonable and that the
patients are entitled to avail themselves of.
I'm not talking about limousines or taxicabs
or things that would be expensive. They're
not. And in most parts of the city, public
1557
transportation, unlike other parts of the
state, doesn't mean buses.
I mean, we have bus service,
obviously. And in fact, at great, great
expense the transit authority acquired a
number of years ago buses with the kneelers on
them, the lifts, and got a lot of them. They
don't work. They take forever to operate. It
makes all the buses late.
But by and large, mass transit in
the city means subways, elevated or below
ground. And with very, very few exceptions,
it means a lot of stairs up or a lot of stairs
down. And even if a patient isn't in a
wheelchair, it can be quite a hurdle for an
infirm person. You know, I'm talking about
subway stations sometimes where you have to go
down or up 30 or 40 or 50 steps. That's quite
a -- you know, at both ends of the trip. At
both ends of the trip.
And I would most respectfully
suggest, Mr. President, that Senator
DeFrancisco take a fresh look at his bill and
maybe use language that's embracing enough to
cover some of the other alternative
1558
transportation means that have been developed
in New York City, and apparently in
Westchester, to address the need to transport
the patients in the cheapest possible way. I
mean, these services were in fact developed
and sponsored to eliminate the cab rides and
whatever that were quite expensive.
So I just think in addressing this
problem, in addressing a legitimate efficiency
concern, perhaps Senator DeFrancisco has taken
something that would work in parts of the
state and be well-defined and, in applying it
throughout the state, it kind of misses the
mark.
These alternative means aren't
public transit. But public transit is just
not a good alternative for these patients.
Had it been a good alternative, none of these
alternative rides -- and they're not quite to
the level of ambulettes, many of them.
Ambulettes, I guess, have to provide certain
services or medical attention. These are
simply handicapped or handicapped-accessible
kind of vans and whatever, with an attendant,
with whatever, that give these patients in
1559
many cases door-to-door rides very
inexpensively.
So that's why I'm against this
bill. But I would support a measure that
addressed these concerns and that would work.
I mean, maybe more discussion to the counties
involved, or a recognition of different
transportation conditions in different parts
of the state would serve that.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
SENATOR CONNOR: Slow roll call.
ACTING PRESIDENT KUHL: A slow
roll call has been requested. There are five
Senators standing.
The Secretary will read the roll
call slowly.
THE SECRETARY: Senator Alesi.
(No response.)
THE SECRETARY: Senator Balboni,
1560
excused.
Senator Bonacic.
SENATOR BONACIC: Yes.
THE SECRETARY: Senator Breslin.
ACTING PRESIDENT KUHL: Senator
Breslin, to explain his vote.
SENATOR BRESLIN: Thank you, Mr.
President.
As Albany County is not dissimilar
from Onondaga in many ways, and our public
transit has entered into agreements with our
Social Services Department, I commend Senator
DeFrancisco. It's a bill that will save
millions and millions of dollars across the
state.
If anybody is unsure of the
transportation costs as related to Medicaid,
they represent a tremendous hidden cost that
we must work to correct because there are so
many other vital services that Medicaid must
and should provide.
So I think each of us in our own
respective constituencies should look at this
legislation and look how it applies to the
different counties, and to avail themselves of
1561
its import.
Thank you very much, Mr. President.
ACTING PRESIDENT KUHL: Senator
Breslin will be recorded in the affirmative.
THE SECRETARY: Senator Brown.
SENATOR BROWN: To explain my
vote.
ACTING PRESIDENT KUHL: Senator
Brown, to explain his vote.
SENATOR BROWN: I appreciate
Senator DeFrancisco answering the questions
and explaining the bill.
I did read the bill and did read
the bill summary. Yet I still have a little
unreadiness. I understand the intent of
Senator DeFrancisco's bill and certainly do
believe that it would save many counties
across our state money.
One of my concerns, though, as the
parent of a 10-year-old son, sometimes when a
young child gets ill, that child, even though
it might not be what would be described as an
emergency situation, nevertheless that child
is in a great deal of discomfort. And during
a time when a child is ill and is in
1562
discomfort, a parent wants to get their child
to a doctor as quickly as possible. And for
some families who are low-income and on
Medicaid, the way that that family might get a
child to the doctor in the quickest fashion
might be by cab.
And it sounds that, through this
bill, the parent being able to make that
decision -- not a frivolous decision to
transport themself and their child to the
doctor in the most expensive way, but a
decision to transport their child to the
doctor in the quickest way, to ease the
discomfort of that child, that might not be
considered an emergency -- is now stripped
away from that parent.
So because of that concern, I'm
going to vote in the negative on this bill.
ACTING PRESIDENT KUHL: Senator
Brown will be recorded in the negative.
THE SECRETARY: Senator Bruno.
SENATOR BRUNO: Yes.
THE SECRETARY: Senator Connor.
ACTING PRESIDENT KUHL: Senator
Connor, to explain his vote.
1563
SENATOR CONNOR: Yes, thank you,
Mr. President.
I think -- I'm going to vote no,
and I don't want my vote to be misconstrued.
I am concerned about the cost savings that may
be had in an appropriate bill.
We hear about the costs of people
who unnecessarily avail themselves of cabs or
car services or whatever. I just -- you know,
I guess we operate in this area so differently
in the city, where generally people avail
themselves of these vans, particularly the
elderly and really infirm. I don't think a
Medicaid patient who is not what you would
describe as infirm has any problem taking the
subway. I'm sure they do it all the time.
And depending from whence one is going to
where one is going, it's a better ride than
you're going to get out of a cab, or a more
pleasant ride, frankly.
So my no vote is just that I don't
think this bill hits the nail on the head for
our part of the state. I would like to see
something similar that addressed the
differences. It may be some broader principle
1564
set down, or some set of guidelines to county
agencies that relate to, you know, what you do
when you have -- for example, your public
transit system is a train system or an
elevated system or whatever.
So for that reason, Mr. President,
I am going to vote no at this time.
ACTING PRESIDENT KUHL: Senator
Connor will be recorded in the negative.
THE SECRETARY: Senator
DeFrancisco.
SENATOR DeFRANCISCO: Yes.
THE SECRETARY: Senator
Dollinger.
ACTING PRESIDENT KUHL: Senator
Dollinger, to explain his vote.
SENATOR DOLLINGER: Thank you,
Mr. President.
This is a close call for me,
certainly much closer than it has been in the
past when I've voted in the affirmative, with
Senator Breslin, for much the same reason that
he voted, cast a ballot in the affirmative.
And that is that cost of
transportation in the Medicaid program is of
1565
enormous concern to people in the -- certainly
taxpayers throughout the state and, I think,
the public officials who are looking for
innovative ways to try to figure out if we can
put a curb on that cost.
I think I stand here with this bill
in front of me and say this is not a bad idea.
It's not a bad idea to try to look for another
way to encourage those who are on public
assistance to use alternative transportation.
And my affirmative vote on this bill should
be, I hope, encouragement to Senator
DeFrancisco, if this bill passes, to find an
Assembly sponsor, to get the bill through the
Assembly, and let's have a conference
committee, a Transportation conference
committee with our ranker on Transportation
and the chairman of the Transportation
Committee, I believe Senator Trunzo. Let's
get them together and talk about how we can
deal with this transportation Medicaid
problem.
But I would suggest that Senator
DeFrancisco's notion that there haven't been a
lot of fair hearings about this, there's a
1566
very good explanation for that. When they
need transportation and it looks like Medicaid
may not pay for it, they're going to find some
other way to get it. Most often they're going
to dig into a pocket that has very meager
resources in it and come up with a way, as
Senator Brown said, to find that
transportation.
And frankly, if we get the
government in the business of trying to figure
out whether if someone's medical condition
changes overnight and their weak legs become
unable to transport them, and they say, Well,
I could walk to a bus stop yesterday, but I
can't walk there now -- do we really want to
have the government refereeing that dispute
every single time?
I would suggest, Senator
DeFrancisco, this is a good idea, but it needs
lots of work. My affirmative vote should say
take this good idea to a conference committee,
iron out a bill that really does the job,
meets the concerns about controlling the cost,
and at the same time doesn't end up with the
government acting -
1567
ACTING PRESIDENT KUHL: Senator
Dollinger, your -
SENATOR DOLLINGER: -- as an
endless referee in fair hearings near and far.
I vote aye, Mr. President.
ACTING PRESIDENT KUHL: Senator
Dollinger will be recorded in the affirmative.
THE SECRETARY: Senator Duane.
ACTING PRESIDENT KUHL: Senator
Duane, to explain his vote.
SENATOR DUANE: Yes, thank you,
Mr. President.
I think that most people who are
sick or infirm or who have a disability would
do anything to be able to use public
transportation. I think for most of them,
that would be a welcome relief and they would
get down on their hands and knees, if they are
able to, and thank God that they were again
able to use public transportation.
The idea that people who are
disadvantaged by health or disability or age
would be cheating taxpayers is really, I
guess, just the difference in how some people
look at the world. I think that most people
1568
want to do the right thing. And someone that
hasn't been able to use public transportation,
for them to be able to use it would be a
terrific thing.
Maybe instead of this 24-hour
whatever it is, you know, that if you needed
to go someplace within 24 hours, maybe what
should happen is that Senators that think that
people should have to use public
transportation could give out their home phone
numbers and we could help carry their
wheelchairs up and down subway stairs. Maybe
we could all volunteer to do that. I know I,
for one, would love to be able to carry
someone in a wheelchair up and down some of
the subway steps that we have in the city of
New York.
Anyway, just, you know, that we
focus on doing this sort of what I consider to
be pretty mean pieces of legislation here
instead of actually trying to solve real
problems for New Yorkers is the tragedy of
this body.
So I would -- I know that we're on
roll call, but those that come after the
1569
letter D, I would encourage them to vote no on
this and to really think better of our
disabled and ill and older sisters and
brothers. Thank you.
ACTING PRESIDENT KUHL: Senator
Duane, how do you vote?
Senator Duane will be recorded in
the negative.
THE SECRETARY: Senator Espada.
SENATOR ESPADA: Mr. President,
to explain my vote.
ACTING PRESIDENT KUHL: Senator
Espada, to explain his vote.
SENATOR ESPADA: Some of us in
the next couple of weeks will be symbolically
trying to empathize with the people on a food
stamp budget by actually living on a food
stamp budget. In fact, most of our conference
here started that over lunch.
But the fact of the matter is that
this bill is bad, it's bad legislation, it's
bad medicine for a problem that doesn't exist.
It adversely impacts on the availability and
accessibility of medically necessary care.
There are no cost savings, because
1570
the reality is that while we're stripping our
Medicaid patients on the front end, the back
end -- that is, the hospital ER room and
ambulance services -- will transport those
very same patients that were denied this free
ride, this mode of transportation, visit to
the doctor, they'll make their way via
ambulance on an emergency basis to the
hospital.
There is no documented problem of
overutilization in this matter. And the worst
part about it is that we are taking medical
judgment and supplanting it with a
bureaucratic process that will not know what
problems exist but is going to render a
judgment on the justification to treat them.
So for all of those reasons, I
would vote no.
ACTING PRESIDENT KUHL: Senator
Espada will be recorded in the negative.
THE SECRETARY: Senator Farley.
SENATOR FARLEY: Aye.
THE SECRETARY: Senator
Fuschillo.
SENATOR FUSCHILLO: Aye.
1571
THE SECRETARY: Senator Gentile.
ACTING PRESIDENT KUHL: Senator
Gentile, to explain his vote.
SENATOR GENTILE: To explain my
vote. And I think my microphone is on this
time, so that's good to hear.
Anyway, Mr. President, certainly I
think I'm joining the members of this
conference and certainly those members from
New York City in saying that I think this is
the wrong approach to whatever the perceived
problem is. Given these circumstances within
the city of New York and the type of
transportation available to those in the city
of New York, I would agree with my colleagues
Senator Duane and Senator Espada and I'm sure
many others in this conference that it is
practically impossible and creates an
additional burden for those who legitimately,
legitimately need to use transportation
services to get to their medical facility.
So certainly, certainly in this
case, while not an expert in this area, and
cognizant of what Senator DeFrancisco is
attempting to do in this legislation, I
1572
believe particularly within the city of
New York that this is impractical, unworkable,
and probably unnecessary.
So for those reasons I join my
colleagues in voting no.
ACTING PRESIDENT KUHL: Senator
Gentile is in the negative.
THE SECRETARY: Senator Gonzalez.
ACTING PRESIDENT KUHL: Senator
Gonzalez, to explain his vote.
SENATOR GONZALEZ: To explain my
vote, Mr. President.
I think that the problem of
Onondaga County is not the same as Bronx
County or the City of New York, although one
county's problem trying to put it all together
for the state is the same as when we take HMOs
and we try to do the magic wand and take
medical decisions away from the medical
personnel that knows what to do, as opposed to
someone that wants to save dollars. We want
to save dollars, but we don't want to hurt
those medically impaired.
And so I think that this bill has
been -- again, in the past -- and is a bill
1573
that I will vote no because it does not help
my community.
ACTING PRESIDENT KUHL: Senator
Gonzalez will be recorded in the negative.
THE SECRETARY: Senator Goodman.
SENATOR GOODMAN: Aye.
THE SECRETARY: Senator Hannon.
SENATOR HANNON: Aye.
THE SECRETARY: Senator
Hassell-Thompson.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson, to explain his her vote.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. Chairman. To explain my vote.
Earlier I talked a little bit about
Westchester County, and I was appreciative
that my colleague who is helping me to learn
the Bronx and its resources has supported the
fact that this kind of service also exists in
the Bronx.
None of that is to say that this is
a bad ruling for me. But what it does say is
that not all communities within the State of
New York have need of this kind of service.
It also asks me to harken back to
1574
yesterday when we talked about how do we deal
with those mandated services that come down to
our counties. And I would think that this
legislation does not exempt any county that is
already dealing appropriately and
satisfactorily with this issue.
And so that if you would extend the
legislation to include that this would be one
of those mandated services that alternative
measures by those municipalities who already
are using a formula that is a better
alternative to what is being proposed, then
perhaps I could in fact support it.
But I have to vote no. Thank you,
Mr. Chairman.
ACTING PRESIDENT KUHL: Senator
Hassell-Thompson is in the negative.
THE SECRETARY: Senator Hevesi.
ACTING PRESIDENT KUHL: Senator
Hevesi, to explain his vote.
SENATOR HEVESI: Thank you, Mr.
President. I rise to explain my vote in
opposition to this legislation.
This is a well-intended piece of
legislation. I think most of us agree on that
1575
point. The problem is as you're sitting here
doing your cost-benefit analysis, it becomes
pretty obvious that though we are going to
save some money and though it is very likely
that there are some people out there who are
taking advantage of this free benefit where
they could be using public transportation, the
fact is that when you have a sweeping policy
change, you are almost certainly going to
incorporate and catch people who need the free
services -
Mr. President. Mr. President, can
we have some order.
ACTING PRESIDENT KUHL: Quiet.
SENATOR HEVESI: Thank you.
It's almost certain we are going to
have some people who are caught up in a
situation where they're going to be denied the
free transportation that they absolutely need.
And I know, because in my Senate
district I've got subways running through my
Senate district. And I'll give you a striking
example. Since 1993, 73 people have been
killed crossing Queens Boulevard, under which
the subway runs. And we know from statistics
1576
that since 1995, 60 percent of all the deaths
have been senior citizens. And we know that
there are seven subway underpasses through
which the senior citizens can walk and not
subject themselves to the dangers of this
roadway. And they don't, many of them. And
they don't because it's very difficult for
many of them to navigate those stairs, flat
out. And we have the statistics to prove it.
So when you have a piece of
legislation like this that's well-intended,
what you're going to find is a situation where
people are going to be denied the right to
have free transportation, a decision made not
necessarily by a healthcare practitioner but
by somebody whose incentive probably will be
or whose motivation will be to deny. That
will be the first -
ACTING PRESIDENT KUHL: Senator
Hevesi. Senator Hevesi, how do you vote?
SENATOR HEVESI: I'll wrap up,
Mr. President.
That will be the first response,
the first instinct.
So this is a bad piece of
1577
legislation. People need to have available to
them free transportation, particularly when
the decision to make this -- to deny the
coverage for these individuals is something
that is highly subjective and is certainly
going to leave some people out in the cold.
I vote no, Mr. President.
ACTING PRESIDENT KUHL: Senator
Hevesi in the negative.
THE SECRETARY: Senator Hoffmann.
SENATOR HOFFMANN: Aye.
THE SECRETARY: Senator Johnson.
SENATOR JOHNSON: Aye.
THE SECRETARY: Senator Kruger,
excused.
Senator Kuhl.
SENATOR KUHL: Aye.
THE SECRETARY: Senator Lachman.
ACTING PRESIDENT KUHL: Senator
Lachman, to explain his vote.
SENATOR LACHMAN: You took the
words of my mouth, Mr. President. Thank you.
First of all, behind his back -- if
he were here, I would dimension it -- I
appreciate the graciousness of Senator
1578
DeFrancisco in responding to my questions and
the questions of my colleagues.
Secondly, unfortunately, I will
have to vote against this bill, as I did last
year. And Senator DeFrancisco has a noble
objective in saving monies, especially
Medicaid funding. But I think it's the wrong
way to go about it.
I have in my district, as many
people have, senior citizens. Many of these
seniors take medication. And sometimes they
take medication according to the color of the
pill -- green, blue, yellow, red, white,
purple, you name it.
We had a neighbor that my wife
every week would fill up her pillbox and write
notes to her what to take and what not to
take. Now, she took the wrong color -- this
is a true story -- she took the wrong-color
pills for a week. She didn't realize she was
in an emergency situation. When my wife found
out that she was, we rushed her to the
hospital. Unfortunately, by that time she had
water in her lung and did not live much
longer.
1579
From this personal reason, I come
to the conclusion that it is very difficult to
ascertain when an emergency situation occurs
in many people's lives, especially the seniors
in our midst.
Thank you. I vote no.
ACTING PRESIDENT KUHL: Senator
Lachman in the negative.
THE SECRETARY: Senator Lack.
SENATOR LACK: Aye.
THE SECRETARY: Senator Larkin.
SENATOR LARKIN: Aye.
THE SECRETARY: Senator LaValle.
(No response.)
THE SECRETARY: Senator Leibell.
SENATOR LEIBELL: Aye.
THE SECRETARY: Senator Libous.
SENATOR LIBOUS: Yes.
THE SECRETARY: Senator Maltese.
SENATOR MALTESE: Aye.
THE SECRETARY: Senator
Marcellino.
SENATOR MARCELLINO: Aye.
THE SECRETARY: Senator Marchi.
SENATOR MARCHI: Aye.
1580
THE SECRETARY: Senator
Markowitz, excused.
Senator Maziarz.
SENATOR MAZIARZ: Yes.
THE SECRETARY: Senator McGee.
SENATOR McGEE: Yes.
THE SECRETARY: Senator Meier.
SENATOR MEIER: Yes.
THE SECRETARY: Senator Mendez.
ACTING PRESIDENT KUHL: Senator
Mendez, to explain her vote.
SENATOR MENDEZ: Mr. President,
I'm going to vote no on this bill. I am very
much aware of the good points of this bill.
I'm also aware that Senator DeFrancisco do
want to save some monies.
I don't care for the perception
that people who are on Medicaid are
necessarily out there expending more money
than they ought to and for us to be defining
what their emergency is all about.
I think that what we should do, if
we really want to have the different counties,
the different municipalities in the state have
more money and don't be, you know, at times
1581
practically in bankruptcy because of the
mandates that we throw to them, what we should
do is to work politically to see if we are
able to get the state and the federal
government to pick up some of those expenses
of Medicaid.
So for that and other reasons
explained by my colleagues here, I really have
to vote no.
ACTING PRESIDENT KUHL: Senator
Mendez in the negative.
THE SECRETARY: Senator
Montgomery.
ACTING PRESIDENT KUHL: Senator
Montgomery, to explain her vote.
SENATOR MONTGOMERY: Yes, Mr.
President. I've listened to the debate, and
I'm certainly impressed. I hear Senator
Hevesi and I hear Senator Brown, and they make
such excellent points. And I too think that
this bill would not serve particularly the
constituents of New York City, as Senator
Connor has pointed out.
So I'm going to vote no even though
I certainly agree with the fact that we need
1582
to try and control the cost under Medicaid as
much as possible so as to maintain
availability to as many constituents as
possible.
But I'm going to vote no on this.
ACTING PRESIDENT KUHL: Senator
Montgomery in the negative.
THE SECRETARY: Senator Morahan.
SENATOR MORAHAN: Yes.
THE SECRETARY: Senator Nozzolio.
SENATOR NOZZOLIO: Aye.
THE SECRETARY: Senator Onorato,
excused.
Senator Oppenheimer.
ACTING PRESIDENT KUHL: Senator
Oppenheimer, to explain her vote.
SENATOR OPPENHEIMER: Thank you,
Mr. President.
I'm going to be voting for the
bill, though I must say that I can recognize
that there's a real upstate/downstate kind of
problem here. And I can empathize with the
downstaters.
But let me speak from the
perspective of a county that does not have the
1583
same kind of mass transit and that has
tried -- and the reason that I'm supporting
this -- has tried to use smaller public
vehicles, sort of quasi-public vehicles,
smaller, smaller sort of jitneys, minivans, to
try and accommodate to those folks so they
will not take the private taxis.
The counties have been experiencing
enormous pressure due to the costs of
Medicaid. And I don't know about your
counties upstate, but I can only speak for my
county. If they were asked what could the
state do to help the counties, the first thing
they would come up with is the state should
relieve the counties of the 25 percent payment
that counties now make in the State of New
York but it is not made in other states in our
country.
And so as someone who came out of
running the Municipal Officials Association of
Westchester, I really have to ask us as a body
to take a close look at removing the burden on
the counties of these Medicaid costs.
I'll be voting in the affirmative.
ACTING PRESIDENT KUHL: Senator
1584
Oppenheimer in the affirmative.
THE SECRETARY: Senator Padavan.
SENATOR PADAVAN: Aye.
THE SECRETARY: Senator Paterson.
ACTING PRESIDENT KUHL: Senator
Paterson, to explain his vote.
SENATOR PATERSON: Mr. President,
I will not minimize the gravity of concern
that Senator DeFrancisco has for cost savings,
particularly in the area of Medicaid.
With Medicaid costs rising at an
average of 10 percent a year, with healthcare
costs in general rising as a matter of
11 percent per year, with prescription drugs
in this country going up 15 percent a year -
right here in New York State we have ten
distressed hospitals losing more than
$15 million a year. We have two hospitals in
this state losing more than $25 million a
year.
There is a grave concern about the
amount of money that we're losing and the cost
savings that our state coffers could realize
from cutting corners where we can.
But when you listen to Senator
1585
Hevesi and he talks about the injuries and the
deaths that have been received when seniors
are crossing Queens Boulevard when they
actually had another option, and when we talk
about the number of people who, because of the
transportation issue, may not even seek
medical care -- that we have a number of
individuals in this state who sorely need
medical care under Medicaid but are in denial
and actually don't even want to go to the
doctor, so the easiest way that we could send
them is the best way for their survival and
their livelihood -- when we look at the values
of cost and we look at the values of human
life, I don't think on this particular issue
we can compare them.
I didn't even hear what the loss
was to our annual budget because we are
financing, through Medicaid, the
transportation to the doctor of the
recipients.
ACTING PRESIDENT KUHL: How do
you vote, Senator Paterson?
SENATOR PATERSON: I vote no.
ACTING PRESIDENT KUHL: Senator
1586
Paterson in the negative.
THE SECRETARY: Senator Rath.
SENATOR RATH: Aye.
THE SECRETARY: Senator Saland.
SENATOR SALAND: Aye.
THE SECRETARY: Senator Sampson.
SENATOR SAMPSON: To explain my
vote.
ACTING PRESIDENT KUHL: Senator
Sampson, to explain his vote.
SENATOR SAMPSON: I rise in
opposition to this legislation.
Of course we need to curb the
Medicaid costs, and also to the point of
curbing Medicaid fraud. But in this instance
I believe that we're taking the decisions from
those individuals and giving them to
bureaucrats, such as what's going on with the
HMOs. And we have people who are going to
have to decide whether or not their problem is
severe enough where they have to call the
Department of Health or the Department of
Social Services to make a decision.
I think we don't need to put them
in that position. Therefore, I vote in
1587
opposition to the bill.
ACTING PRESIDENT KUHL: Senator
Sampson in the negative.
THE SECRETARY: Senator Santiago.
SENATOR SANTIAGO: No.
THE SECRETARY: Senator
Schneiderman.
ACTING PRESIDENT KUHL: Senator
Schneiderman, to explain his vote.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I am voting against this bill. I
also agree that saving money is important.
But the definitions in this legislation make
it virtually impossible that it will not have
the undesired result, and I'm sure undesired
by the sponsor, of unfairly penalizing
people -- forcing people, essentially, to dip
into their meager resources to take other
forms of transportation.
Because the definition here is
simply to require the use of common carriers
when such means of transportation are
available to the recipient. It doesn't say
available and of comparable speed, it doesn't
1588
say available and of comparable convenience.
None of these things are factored into this.
And I can tell you from my own
experience that people with meager resources
are going to be forced to pay out of their own
pockets for transportation. Because when you
have a sick relative, a loved one, a child, a
parent, you are not there calculating, well,
are they really sick enough that we should try
and get there 10 minutes, 15 minutes sooner.
I mean, the second issue which this
raises -- and I think it really is something
we have to address I think a little more
honestly in this house -- is the fact that
this -- you know, obviously we favor mass
transit. We have in last year's budget
allocated less state dollars for the buses and
subways of the City of New York than were
allocated a decade ago. In spite of
inflation, in spite of massive increases under
the supposedly conservative Pataki regime in
the size of the state budget. New York City
buses and subways are being punished. Our
service is worse now.
If we're going to try and force
1589
people into buses and subways, let's take an
honest look at what we are doing with our
buses and subways. There is no transit system
in the United States that is funded as poorly
by the state as the New York City transit
system.
ACTING PRESIDENT KUHL: Senator,
how do you -- Senator Schneiderman, how do you
vote?
SENATOR SCHNEIDERMAN: I vote no.
Thank you.
ACTING PRESIDENT KUHL: Senator
Schneiderman in the negative.
THE SECRETARY: Senator Seward.
SENATOR SEWARD: Aye.
THE SECRETARY: Senator Skelos.
SENATOR SKELOS: Aye.
THE SECRETARY: Senator A. Smith.
ACTING PRESIDENT KUHL: Senator
Smith, to explain her vote.
SENATOR ADA SMITH: Thank you
very much, Mr. President.
My conservative bent naturally
leads me to be in favor of any cost-saving
methods. However, as has been said here
1590
today, I do not believe that this would be
cost-saving, and it would be cost-producing.
Taking away the doctors' and the
medical personnel's decision-making power and
giving it to a clerk certainly does not
benefit any of our constituents and may lead
to even more serious illnesses on the part of
these Medicaid recipients.
Also, in areas that I represent,
and others in this room, there is virtually no
public transportation that they can avail
themselves of. There is transportation that
is franchised which may come at any time of
the day on no regular schedules. And many of
us have battles with them on a regular basis.
So they clearly would not serve our
constituency.
Furthermore, I will admit that the
Senator who is the sponsor of this legislation
may have some smart body parts. However, in
reference to this particular bill, it wasn't
there. And I vote no.
ACTING PRESIDENT KUHL: Senator
Smith in the negative.
THE SECRETARY: Senator M. Smith.
1591
ACTING PRESIDENT KUHL: Senator
Smith, to explain his vote.
SENATOR MALCOLM SMITH: Yes, Mr.
President. Thank you.
While I can appreciate Senator
DeFrancisco's intent to apply some fiscal
prudency to a difficult and probably very
expensive situation, I think he missed the
opportunity by not conducting hearings, as my
learned colleague Senator Dollinger pointed
out.
I think had he had the opportunity
to do so and had done so, he would have
recognized that while there are some that
believe this is a problem that exists from
downstate to upstate, it also has sort of a
socioeconomic problem as well in terms of if
you just deal with the neighborhoods in which
this will obviously have an impact on.
I think Senator Ada Smith, my
adjacent colleague in the district, pointed
out well that there are parts of our district
that do not have public transportation.
And it's because of this that while
I think his intent is honorable, but I think
1592
he missed the mark, I'm going to be voting no.
ACTING PRESIDENT KUHL: Senator
Smith will be recorded in the negative.
THE SECRETARY: Senator Spano.
SENATOR SPANO: Aye.
THE SECRETARY: Senator
Stachowski.
ACTING PRESIDENT KUHL: Senator
Stachowski, to explain his vote.
SENATOR STACHOWSKI: Mr.
President, to explain my vote. As I said
earlier, I support Senator DeFrancisco's bill.
I think that -- I like to think the positives.
I try not to focus on the negatives on this.
I think that the bill is not trying
to take anything away from anybody, it's just
saying that if you're able and it's not an
inconvenience that, when possible, you could
taken the public transportation system. I
think it's an idea to try to help both the
taxpayers and the public transportation
systems without hurting the people receiving
the service. I know that by allowing the
cabs, we save money by not having people in
ambulances.
1593
And I also understand the concern
of the people from the New York City area,
because it's a whole different system. And my
dear friend Senator Brown, who's thinking like
a New York City resident.
SENATOR ADA SMITH: He's thinking
about his parents.
SENATOR STACHOWSKI: He's
thinking about his parents in Queens. Thank
you.
But the fact is that I like to
think the positive. And I think that I tend
to agree with Senator Dollinger's analogy on
this bill, that by voting for it we're voting
for the good parts in this bill.
And if there's as many problems as
some of my colleagues have pointed out with
this bill, that the Assembly version will be
different, that it may come together and cause
a conference committee on this piece of
legislation, something that will come out
win-win, that all the people receiving the
services will receive them, that the transit
system will get more ridership because they'll
work out some kind of system where people who
1594
can use it will use it -- not in an
inconvenience, but just because it's easy for
them -- and that people who still need to use
cabs, for example, will use cabs. And that in
some way we'll end up with a win-win or we'll
have more of these little minibuses running
around, instead of cabs, provided by the
transit system, to help people like this get
to their physicians or doctors or health
clinics or outreach clinics or whatever they
use.
But in no way do I see this bill as
a bill that's trying to take services away
from people, trying to force sick people
onto -
ACTING PRESIDENT KUHL: Senator
Stachowski, how do you vote?
SENATOR STACHOWSKI: -- buses and
subways.
I vote yes.
ACTING PRESIDENT KUHL: Senator
Stachowski is recorded in the affirmative.
THE SECRETARY: Senator Stafford.
SENATOR STAFFORD: Aye.
THE SECRETARY: Senator Stavisky.
1595
ACTING PRESIDENT KUHL: Senator
Stavisky, to explain her vote.
SENATOR STAVISKY: To explain my
vote, Mr. President.
I rise because I am disappointed
that the buses and subways are not accessible
for the disabled in many respects. While it's
true that the buses are required to have the
lift mechanisms, the so-called kneeling buses,
many of them do not work, unfortunately. At
Flushing Main Street, we have a new escalator
and elevator system, and it often does not
work. In many parts of the city we have
nonfunctioning accessibility for the disabled.
And I rise also, Mr. President, for
those people who were killed on Queens
Boulevard, the people alluded to by Senator
Hevesi. Seventy-three people, Mr. President,
have lost their lives on Queens Boulevard.
They have the option of using the stairs to go
underneath Queens Boulevard and avoid the
traffic. Instead, they chose to cross a very,
very dangerous intersection.
And, Mr. President, it becomes
incumbent upon us, I think, to provide bus
1596
transportation -
ACTING PRESIDENT KUHL: Senator
Stavisky, how do you vote?
SENATOR STAVISKY: -- subway
transportation.
And I vote no.
ACTING PRESIDENT KUHL: Senator
Stavisky in the negative.
THE SECRETARY: Senator Trunzo.
SENATOR TRUNZO: Yes.
THE SECRETARY: Senator Velella.
SENATOR VELELLA: Yes.
THE SECRETARY: Senator Volker.
SENATOR VOLKER: Yes.
THE SECRETARY: Senator Wright.
SENATOR WRIGHT: Aye.
ACTING PRESIDENT KUHL: Call the
absentees.
THE SECRETARY: Senator Alesi.
SENATOR ALESI: Yes.
THE SECRETARY: Senator LaValle.
SENATOR LAVALLE: Aye.
ACTING PRESIDENT KUHL: Announce
the results.
THE SECRETARY: Ayes, 39. Nays,
1597
18.
ACTING PRESIDENT KUHL: The bill
is passed.
SENATOR BRUNO: Mr. President.
ACTING PRESIDENT KUHL: Senator
Bruno.
SENATOR BRUNO: Can we at this
time call up Calendar Number 122.
ACTING PRESIDENT KUHL: The
Secretary will read.
THE SECRETARY: Calendar Number
122, by Senator Velella, Senate Print 1360, an
act to amend the Administrative Code of the
City of New York, in relation to the
investment powers.
SENATOR CONNOR: Explanation.
ACTING PRESIDENT KUHL: Senator
Velella, an explanation has been asked for by
Senator Connor.
SENATOR VELELLA: Mr. President,
this bill would amend the Administrative Code
of the City of New York and would allow the
New York City Fire Department Life Insurance
Fund the same investment powers that the board
of trustees of the Fire Department Pension
1598
Fund have, so that they would be able to get
the same return on the investments that the
pension fund has had, because the pension fund
has far exceeded that which the insurance
company has.
ACTING PRESIDENT KUHL: Senator
Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
if Senator Velella would yield for a question.
ACTING PRESIDENT KUHL: Senator
Velella, do you yield to a question from
Senator Paterson?
SENATOR PATERSON: How do you
know, Senator Velella, that the pension
fund -
ACTING PRESIDENT KUHL: Senator
Paterson, excuse me just a minute. Senator
Velella has not yielded at this moment.
Senator Bruno.
SENATOR BRUNO: Excuse me. Can
we lay this bill aside for the day.
ACTING PRESIDENT KUHL: Lay the
bill aside for the day.
SENATOR BRUNO: Thank you.
Is there any housekeeping at the
1599
desk, Mr. President?
ACTING PRESIDENT KUHL: No, there
is none at the desk.
SENATOR BRUNO: I'd like to
announce a meeting of the Veterans Committee
in Room 808 in the LOB tomorrow morning at
9:30 a.m.
I'd like to announce a Majority
conference at 10:00.
And there being no further business
to come before the Senate, I would move that
we stand adjourned until 11:00 a.m. tomorrow.
ACTING PRESIDENT KUHL: The
Senate stands adjourned until tomorrow at
11:00 a.m. -
SENATOR PATERSON: Mr. President.
ACTING PRESIDENT KUHL: Senator
Paterson, why do you rise?
SENATOR PATERSON: Mr. President,
on behalf of Senator Olga Mendez, the chair of
the Minority Conference, we would like to
announce a 10:30 meeting, because we get
business done quicker, in the Minority
Conference Room.
ACTING PRESIDENT KUHL: The
1600
Senate stands adjourned.
(Whereupon, at 6:05 p.m., the
Senate adjourned.)