Regular Session - March 14, 2001
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NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
March 14, 2001
11:07 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we each bow our heads in a moment
of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Tuesday, March 13, the Senate met pursuant to
adjournment. The Journal of Monday, March 12,
was read and approved. On motion, Senate
adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Farley.
SENATOR FARLEY: Thank you, Madam
President. On behalf of Senator Rath, would
you please place a sponsor's star on Calendar
Number 136.
THE PRESIDENT: So ordered.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Social Services
Committee in the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Social Services
Committee in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Saland. Could we have the title read
and move for its immediate adoption.
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THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Saland, Legislative Resolution Number 842,
congratulating Marion Mann upon the occasion
of her 100th Birthday.
THE PRESIDENT: The question is
on the resolution. All in favor signify by
saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Smith. May we please have the title
read and move for its immediate adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator A.
Smith, Legislative Resolution Number 843,
memorializing Governor George E. Pataki to
proclaim March 15, 2001, as Hunger Awareness
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Day in the State of New York.
THE PRESIDENT: The question is
on -- Senator Smith, do you wish to be heard?
Senator Skelos.
SENATOR SKELOS: Why don't we
have a vote on the resolution, and then if you
would recognize Senator Smith.
THE PRESIDENT: I'd be happy to.
The question is on the resolution.
All in favor signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The resolution is
adopted.
Senator Smith.
SENATOR ADA SMITH: Thank you,
Madam President.
I would like to take this time to
encourage all of my colleagues to participate
in Hunger Awareness Day and, if they have the
opportunity, to please contribute to the food
drive.
There will be cans downstairs in
the Legislative Office Building. And I know
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that some of the other members, as well as my
office, will be a receptacle for canned goods.
If you have not received the
flyers, some of the suggested items would be
canned meats, fish, soups, fruits and
vegetables; infant formula, baby food and
cereal; dry pasta and rice, cereal, spaghetti
sauce, dry and canned milk, and peanut butter.
All of us are blessed to be able to
have a full-course meal three or four times a
day. Others are not so blessed. And I think
that we should think of those who may not be
capable of feeding themselves.
Also, some of our colleagues are
attempting to live on a food-stamp budget this
week. Maybe we should pass them a candy bar.
But I thank you for taking the
time, and hopefully you will donate. And I
open the resolution for anyone else who would
like to be a part of it.
Thank you.
THE PRESIDENT: Senator Skelos,
would you like to open up this resolution?
SENATOR SKELOS: Yes, Madam
President. If anybody wishes not to be on the
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resolution, they should notify the desk.
THE PRESIDENT: Any member who
does not want their name on this resolution,
please notify the desk.
Senator Skelos.
SENATOR SKELOS: Madam President,
there's a privileged resolution at the desk by
Senator Hoffmann. Could we have it read in
its entirety and move for its immediate
adoption.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: By Senator
Hoffmann, Legislative Resolution Number 820,
paying tribute to the life of Luther F. "Gus"
Bliven, dean of New York State's political
correspondents, distinguished citizen, and
devoted member of his community.
"WHEREAS, It is the custom of this
Assembled Body to pay tribute to citizens of
the State of New York whose life work and
civic endeavor served to enhance the quality
of life in their communities and in the great
State of New York; and
"WHEREAS, With deep regret, this
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Assembled Body records the passing of a
reporter whose memory will remain etched in
the minds of many who worked within the walls
of the New York State Capitol and had the
pleasure of knowing him. Luther 'Gus' Bliven
of Baldwinsville, New York, died on
February 25, 2001, at the age of 85; and
"WHEREAS, Luther 'Gus' Bliven will
be remembered by politicians and colleagues as
a no-nonsense reporter who was tough but fair
and whose institutional knowledge of local
politics and state government was unmatched;
and
"WHEREAS, The passing of the dean
of New York State's political correspondents
represents the end of a journalistic era. His
writing style was representative of a time in
journalism before the electronic age, when the
focus of journalism was not concerned
primarily with one-line reporting, as it is
today; and
"WHEREAS, Luther 'Gus' Bliven grew
up on a farm in Ithaca, New York. He was a
legislative correspondent and political
columnist for The Post-Standard and the Herald
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American.
"Gus Bliven began his career with
The Post-Standard on May 1, 1930, while still
a student at Ithaca High School. During World
War II, Gus's career was put on hold while he
served three years in the United States Army.
Following his service to our country, Gus
returned to head the Oneida bureau for The
Post-Standard.
"In 1948, Gus Bliven began covering
the political scene in the State Capitol. By
the time he left, at the end of 1997, his
tenure had taken him through the
administrations of seven Governors, including
Thomas E. Dewey, W. Averell Harriman, Nelson
A. Rockefeller, Malcolm Wilson, Hugh L. Carey,
Mario M. Cuomo, and George E. Pataki; and
"WHEREAS, While the Legislature was
in session, Gus Bliven would commute by train
from his home in Baldwinsville to Albany. He
was always the first reporter in the press
room and the last to leave. He was the last
of the Capitol reporters who would sit through
the Senate and Assembly sessions from start to
finish.
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"Gus Bliven was a lifetime member
of the Legislative Correspondents' Association
and a member of the Syracuse Press Club; and
"WHEREAS, Even though he avoided
the spotlight, Gus Bliven received many honors
and accolades during his lifetime for his
outstanding career. In 1990, he was awarded
the Lifetime Achievement Award by the Syracuse
Press Club. In 1995, he was honored by the
New York State Assembly for his 65 years of
service to The Post-Standard. In
November 2000, he was named to the Syracuse
Press Club's Wall of Distinction; and
"WHEREAS, Luther 'Gus' Bliven was
married to his beloved wife, Rita Ellen, who
passed away in 1992. He is survived by two
sons, Francis, of Baldwinsville, and Stephen,
of Philadelphia, and a granddaughter.
"The journalistic career of Luther
'Gus' Bliven was a living estuary to the
political heart of the State of New York, as
he so clearly labored for the positive and
salutary definition of the political life of
this Empire State; and
"WHEREAS, Through his long and
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sustained commitment to excellence in
Journalism, Luther 'Gus' Bliven so unselfishly
advanced that spirit of united purpose and
shared concern which is the unalterable
manifestation of our American experience; now,
therefore, be it
"RESOLVED, That this Legislative
Body pause in its deliberations to pay tribute
to the life of Luther 'Gus' Bliven, dean of
New York State's political correspondents,
distinguished citizen, and devoted member of
his community; and be it further
"RESOLVED, That a copy of this
resolution, suitably engrossed, be transmitted
to the family of Luther 'Gus' Bliven."
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR HOFFMANN: It is with
great pride and a little bit of sadness that I
rise today to speak in favor of this wonderful
resolution. And I commend our Journal Clerk
for reading it so eloquently.
I hope that all of the reporters
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listening understand that there are times
where we have admiration and deep respect for
people who perform in the capacity of
journalism as well as Gus Bliven performed.
And it's not necessary to perform in that
capacity for 65 years to earn our respect.
But, by golly, Gus Bliven did it, and did it
to the nth degree, all the way through to the
time that he retired from his active reporting
in the State Capitol.
It was in 1990 that we did a
resolution in this chamber -- it was sponsored
at that time by Senator Lombardi. I was a
cosponsor, and I believe most of the members
of this chamber joined in sponsoring it -
when we recognized Gus, while he was seated in
one of the chairs at the front, for his 60
years of wonderful coverage of this
Legislature and state government in general.
Let me just read one of the
excerpts from that floor speech on the day
that we recognized Gus for 60 years. That was
in July of 1990. Senator Lombardi said: "I
don't know in my history of any reporter that
I admire more than this particular reporter.
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Because although he has a very sharp pen and
will write what he feels in the record is the
truth of the events, he probably is the most
thorough in terms of researching, the most
honest in terms of reporting, and the most
diligent in terms of making sure that he has
the facts and the information that truthfully
and honestly reflects the situation, of any
reporter I have ever had the privilege of
knowing.
"I think that his years of service
stand as a beacon and an example for anyone
who wishes to be part of the press corps of
this country. Without a doubt, with this type
of talent he could have gone anywhere in the
nation, or worked with a publication in any
field, because of his talents and his
abilities."
And yet, as Senator Lombardi went
on to point out, Gus Bliven chose to stay here
in Albany, New York, and Syracuse, New York,
covering the New York state government.
Some time ago, several members of
the Cuomo administration were asked to recount
an incident that they had with Gus Bliven.
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And Mr. Mario Cuomo, now in private
citizenship, commented upon Gus Bliven's death
that he remembered having a private,
confidential conversation with a staff member
at a restaurant just after he had arrived in
Albany as Secretary of State in 1975. Former
Governor Cuomo said when he finished the
conversation, Gus Bliven, who had overheard
the conversation from the next table, came
over, introduced himself, and asked for more
information.
Governor Cuomo says: "I was
shocked and irritated. I said, 'How could you
do that?' Gus said, 'I didn't do anything. I
overheard it.'" Governor Cuomo said: "I gave
him the story. There really wasn't much
choice, actually."
And he went on to characterize Gus
Bliven by saying "I don't think if you
promised him sainthood in return, he would
have dropped a line from a story. Gus was a
great gentleman, but a reporter, from the
minute he woke up until the minute he went to
bed."
And although Gus Bliven never
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pulled any punches with the facts, he was not
a mean-spirited reporter, politicians across
both sides of the aisle said in memorializing
him upon his death.
Governor Hugh Carey said: "In a
certain sense, Gus Bliven broke me in." He
remembered, when he was Governor from 1975
through '82, after representing Brooklyn in
Congress, how he first came to know Gus. "I
emerged on the scene in Syracuse one day with
very little knowledge of that city, and Gus
was kind enough to point me in the right
direction. I look at Gus as a one-man truth
squad. I never had any complaints about what
Gus wrote. You couldn't con him even if you
tried. That's just what makes a great
journalist."
Virtually everyone who ever had any
encounter with Gus Bliven knew that he was a
stickler for facts, he was determined to get
the details straight, and that he was often
the person who could give the most objective
analysis of a new policy when other people
hadn't quite sorted it out yet, including
those of us who were elected to determine what
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that policy would do to the State of New York
and to the taxpayers.
My experience with Gus was a little
bit different, because I was a member of the
Minority through all the years that he covered
the Senate. And as everybody knows, members
of the Minority don't have quite the same
responsibilities that members of the Majority
do.
So I would frequently sit next to
Gus in the front of the chamber, and we would
talk about a variety of things that were of
interest to us. Sometimes we would talk about
the activities around us in the chamber. But
more often than not, Gus would reminisce about
his life growing up on a farm in Ithaca, New
York.
Gus Bliven was born in 1915 in
Ithaca. He had remarkable career as a high
school athlete.
It was never reported well outside
of Ithaca, and it's been difficult for me to
research what actually took place that day,
but there was one football game in which Gus
Bliven was the quarterback and, playing for
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Ithaca Free Academy against Elmira Free
Academy, Gus Bliven alone scored 49 points.
And I would ask anybody who is
capable of researching such a record if you
can help me determine whether or not that
stands as a state record.
But I can't imagine too many other
games, in this state or any other, where a
quarterback alone scored 49 points. And it
may well be that Gus stands to hold a record
for which he was never accurately recognized.
During the same time that he was in
high school, he began reporting for The
Post-Standard and the Ithaca Journal. But he
would work on the farm with his family, and he
used to tell me stories about how his father
managed the animals.
Well, I was the ranking Minority
member of the Agriculture Committee and do
some farming myself. He was always worried
about the way livestock would sometimes act in
a surprising manner and startle or even injure
farmers.
I told him about a bull that I had
had for some time I was thinking of selling.
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But I liked the bull so much I didn't want to
part with the bull. And I told him how
well-behaved the bull was. And we would have
a conversation virtually every week about what
that bull was doing, how he had behaved the
previous week, whether I had moved him
recently from pasture to pasture, whether he
ever lowered his head, whether he even looked
like he might want to paw the ground.
And Gus told me repeatedly a story
about his own father and a bull that was on
his farm.
Every day his father would take the
bull and lead him from a pen or from his
pasture over to a stream where the bull would
drink. And the bull was so docile that Gus's
father, Bion [ph] Bliven, would just walk
ahead of the bull and the bull would gently
follow, the same way my bull would follow me.
And Gus said: "It worked perfectly
until that one day the bull just snapped and
he threw my father up in the air, and he
injured him pretty badly. And that's when we
turned him into hamburg."
I was very cautious about my own
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bull, and I was especially comforted by the
fact that somebody here in Albany would be
concerned about my personal well-being when I
was back on my own farm.
Gus was concerned about all of us.
He used to care about our families. He would
ask how we were doing. I used to see him ask
people on both sides of the aisle if
everything was okay when he could even discern
that somebody looked a little bit tired or if
they had had a recent news story describing
something in their personal life. He was
always very circumspect -- would never write,
unless ordered by his editors, about something
that was personal or invasive, and then would
try to do it in the most genteel way possible.
He did respect us. He respected
the institution. And he was a tremendous
credit to the journalistic field.
One of the people who had the
privilege of working with him through the
years is Gerry McLaughlin, known very well to
people in this chamber. And Gerry sent a
beautiful letter in tribute to Gus to The
Post-Standard upon Gus's death last week. And
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I would just like to read a couple of Gerry's
comments in closing.
Gerry McLaughlin describes the 1954
novel Come Fill the Cup, which he says is a
gem of a book about the news business. And it
describes people in that book who fit the
definition of terrible men, because they were
formidable and they had a standard of
excellence that would sometimes be overbearing
to younger reporters.
Gerry says: "They were feared and
respected by young reporters who faced their
withering vocal fire whenever they handed in
anything less than thoroughly reported,
well-written stories. Their demands for
high-standard work made their papers reliable,
accurate, and a pleasure to read." And this,
my friends, was a time long before the
electronic media, where all news came from
print media.
Gerry says: "When I heard last
week that Luther F. 'Gus' Bliven had died, I
thought of the 'terrible men' epithet because
he fit that mold -- a solid pro who demanded a
lot of himself and of those functioning in his
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world.
"Luther 'Gus' Bliven's world
encompassed Syracuse, Central New York,
Upstate New York, and Albany.
It included the cops, the firemen,
the judges, the criminals, the teachers,
industrial workers, and the countless other
people he covered during his half century in
Syracuse and in Albany.
"Gus Bliven's world, one in which
he made a true difference, also included
generations of politicians, local and state,
who came under his sharp analytical gaze as he
covered local governments, city halls, and
ultimately the Capitol in Albany.
"Gus put them all under the
jeweler's eye, measuring their strengths and
weaknesses, and he told his readers about them
in terse, readable prose.
That's why Governors from Tom Dewey
to George Pataki looked to Gus Bliven's
stories and columns both for accurate
reporting and the honest performance grades he
handed out.
"When Nelson Rockefeller proposed
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Medicaid for New York in 1965, Gus told his
readers that the program, whatever its merits,
was going to be very expensive. His
prediction, which proved to be accurate,
rankled the Governor, and he turned loose a
cadre of advocates to persuade Gus that he'd
read it wrong. Gus just listened, smiled, and
kept on reporting that the administration was
low-balling the numbers.
"Gus was one of a handful of Albany
correspondents who could read the state
budget -- then and now a Manhattan phone
book-sized document -- and see through the
cryptographic prose so popular with budget
wizards. Gus made his own astute
translations; then he told his readership what
was really involved. Hugh Morrow,
Rockefeller's talented and decent
communications director, said five years after
that initial Medicaid reporting: 'Gus had it
right, and the Governor knew it. He never
backed off. Finally, we gave up trying to
convert him.'
"Generations of Syracuse, Central
New York, and statewide politicos knew and
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admired Gus Bliven for these traits.
Recalling Gus now," Gerry McLaughlin said, "I
see in the far corner of the Capitol's gray,
raffish press room a man of medium height,
balding and erect, wearing a sports jacket, a
short-sleeved sweater, and a necktie. He's
sitting at his computer, peering through
rimless glasses at his keyboard, and tugging
occasionally at his green eyeshade. That
eyeshade on anyone else would have been a
ridiculous anachronism. On Gus Bliven, it was
a mark of authority, well-earned."
I thank Gerry for sending this
beautiful tribute to The Post-Standard, and I
thank all of you for indulging me while I
reminisced for a few minutes about Gus. And I
compliment our Journal Clerk again for his
eloquent reading.
And I just hope, as we reflect upon
Gus's 65-year career in state government, in
reporting what it is that we do and what we
attempt to do, that we can all strive to
measure some of his level of excellence in our
own activities.
Thank you, Madam President.
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THE PRESIDENT: Senator Farley.
SENATOR FARLEY: Thank you, Madam
President. Senator Hoffmann, that was a very
moving tribute.
Let me just say that one of the
saddest things I think that particularly the
new Senators might feel is not knowing of Gus
Bliven. He was one remarkable person and one
remarkable journalist.
You know, this front row here is
for the press. We don't see too many of them
in there very often these days. But Gus
Bliven used to be seated there, and he was
there at 2:00 and 3:00 in the morning, back
when we used to have the all-night sessions,
listening and writing and listening to
everything that was happening. And he'd be
about the only one that was awake that was
outside of the Senate chamber. And he was a
remarkable man, to say the least.
I can recall, I think it was
about -- I've been here 25 years -- 24 years
ago, they did a tribute to him retiring. It
went on for hours, and everybody saying nice
things about Gus. Then I saw him sitting here
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for the next twenty years. So he kept working
and working.
And I'll tell you, so interesting
today among reporters and the print media,
because they really look behind something
besides the sound bite that the electronic
media uses. He really could get the nub of
the story.
He really could find out what was
happening. I think Medicaid was a perfect
example. He was kind of alone in that, and
not many people took on Governor Rockefeller
in those days. But Gus Bliven didn't mind who
it was, he wrote it as he saw it. And he was
truly an idol for anybody that wants to enter
the journalistic field.
Gus Bliven was an icon in Central
New York. And he just didn't cover Central
New York. He wrote about me, he wrote about a
lot of Senators from all over the State of New
York. And he'd put vignettes about different
Senators and what they were doing or how they
were behaving or many, many other things.
Gus Bliven, he was always on duty.
That doesn't surprise me a bit about the story
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that Governor Cuomo told, because he was after
a story and listening to everything that was
being said. And he reported it accurately.
And he wasn't a bit afraid to report on
anything.
He was truly a remarkable icon in
the press. And I would just hope that many of
the reporters today could model themselves
after Gus Bliven. Because I'll tell you,
we'll never see one like him again.
And I know that his son Francis who
lives in Baldwinsville, I think, and still is
in Central New York, has got to take a great
deal of pride in how his father is so deeply
remembered by so many people.
And I certainly -- I know that if I
know Gus Bliven, he's taking notes upstairs on
this one too. And he was -- I liked him and
loved him, and he's going to be sorely missed
around this Capitol. Because I think even
after he left here, he was still writing. He
was still writing for The Post-Standard, and
they couldn't take the pen away from him, even
though he couldn't see and a few other things.
But Gus Bliven was one remarkable
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guy, and we're going to miss him.
Thank you.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President. I couldn't agree more with
Senator Farley about the classification of Gus
Bliven as an icon.
I also remember him sitting here in
the chamber, seemingly irreverently, hour
after hour, through the entire session, but
always taking a few notes from time to time
and somehow putting it together in a very
comprehensive and balanced story.
I first became acquainted with Gus
Bliven through Senator Hoffmann. It was
interesting, if Senator Hoffmann had not
gotten up to make a valuable presentation, I
wouldn't have actually remembered this
incident. It was also a time when Senator
Hoffmann was in the Minority and was sitting
next to me. And we had a bill where there was
an attempt to stop school boards from having
more than one election per year over the
school budget. Sometimes a budget would get
voted down and the budget would get voted
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down, and they'd keep bringing it back until
the budget got passed.
And this particular piece of
legislation that was presented by one of our
colleagues wasn't getting much support from
the members of this house. And at a point
when it didn't appear that the member had
enough votes to pass the bill, they actually
laid the bill aside. So I thought it was kind
of interesting that they were now practicing
the exact same conduct that they were trying
to stop through the legislation, and pointed
it out to Senator Hoffmann, who told me that
she thought that Gus Bliven would be
interested.
And even though I'd been here about
five years at the time, I had never become
familiar with Mr. Bliven. So I went to talk
to him, and I gave him this whole treatise on
how we should actually talk about this issue.
And he asked me if I had had a
conflict with the Governor's office involving
a very highly publicized case at that
particular time, and that there were some
issues between the Governor's office and a
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group of legislators. And he actually wound
up writing about that, which was an issue that
I really didn't want to talk about anymore -
I wanted to talk about the school board
bill -- but was the issue probably that was
far more interesting to the public.
And I wasn't particularly pleased
when I saw this article the next day. But in
retrospect, and with the distinct advantage of
hindsight, I can see that there was some
valuable information that could be obtained
from me, and that was exactly what he did.
And that is the standard I think
that we all come to appreciate from those
members of the media, and particularly the
print media, that the agendas are often
different. We obviously look at the world
subjectively. They try, as much as they can,
to look at the world objectively. And I think
that that's what the members of the press do
here today.
Sometimes in the shadow of someone
as great and as well-read as a Gus Bliven, I
think someone starting out these days can feel
almost a little bit overwhelmed. But you do
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recognize that when he started at The
Post-Standard in 1930, it was probably
something that he faced as well, the
difficulty of mastering the elements of the
profession.
But what I think his colleagues
revered so much about him, and I think what
all of us who are not in that profession also
regaled about him, was the fact that he kept
working. His steadfast discipline, criticism,
and honesty was something that came from
dedication and a lot of very hard work. He
didn't take shortcuts, he didn't write things
that were not researched, he didn't quote
sources that apparently he was not feeling
comfortable that that was actually what the
source meant.
And it's something that's greatly
appreciated and a standard to be emulated, not
to overwhelm people in today's journalism.
This is a difficult task for all of us,
whether we be in the print media or here as
elected officials. I don't see any difference
in our responsibilities.
Sometimes we confuse the definition
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of power and the definition of responsibility,
power being the capacity to influence people,
responsibility being the capacity to earn the
public's trust. We're 61 Senators; we're all
coequally responsible. Those members of the
media have that same charge. They have that
same issue before them every day. And I think
that they perform very admirably.
The institutional knowledge that a
person like Gus Bliven had, the ability to
weigh situations against other issues that had
happened over seven Executive administrations,
and what things actually mean, was something
that came as a result not just of the time
that he devoted and the number of years that
he spent here, but what was really a
dedication to the principle of researching and
writing and continuing to research and write
until you can get it right.
I can't really think of too many
people that not only served as long but served
as well. And it is a pleasure on behalf of
Senator Connor to get up and to applaud and
celebrate the life and the accomplishments of
someone as dynamic and as perceptive as Gus
2119
Bliven.
THE PRESIDENT: Senator Marchi.
SENATOR MARCHI: Yes, I want to
express my appreciation and compliments to
Senator Hoffmann and Senator Farley and
Senator Paterson for speaking on this
resolution, because they mirrored with total
fidelity the measure of this great journalist.
He was a gifted individual at a
time when the exigencies of the profession
itself required that immediacy that we
experienced at that time. And he used to sit
not too far from you, Senator, just across the
way there, and you probably remember him just
for a brief period, Senator Lachman.
But he was -- he covered us, and I
would say he gave us 90 percent of the time.
He went to the Assembly occasionally, but his
place was here in the Senate. And he harkened
back to an era when that whole press row was
populated. And they're all fine journalists,
even today. But as I say, we're in different
times.
But it did, and I -- I'm saddened
by the fact that we don't have that anymore,
2120
because the presence that Gus Bliven
exemplified really bounced back on us, and we
on those who were conducting the reportage.
Because they could give a hands-on personal
interaction which tended to elevate, I think,
performance, irrespective of party or the
issue that was involved, as long as it was
honestly exercised with dignity and respect.
So I do hope that it may be opened
up, Senator, for all the Senators -- you've
had bipartisan explanation here -- and others
that may speak to it. But those who knew him
would like -- I'm sure would appreciate the
fact that this is mirrored in the resolution.
And to the family, the survivors,
and the people back home and around the state
that have great esteem for Gus Bliven, that
this is the patrimony of the Senate, and that
the entire Senate is in concurrence with the
honor that's been extended and manifested
here.
THE PRESIDENT: Senator Volker.
SENATOR VOLKER: Madam President,
very quickly.
And I've already, on this floor, on
2121
about three or four occasions, I believe,
extolled Gus Bliven. Because if I'm not
mistaken, he retired about four times. I
mean, it seemed like he was retiring -- the
problem Gus had was that he couldn't stay
away. In all honesty.
And I have known Gus Bliven, I
hesitate to admit this, probably other than
John Marchi -- because I was around here with
my father when Dewey was Governor, and
Rockefeller. My father was in the State
Assembly for 22 years. He actually was a
close personal friend of Gus's.
And in those days, as John would
tell you, the press relationship with the
Legislature, although they could be pretty
tough, and they were pretty tough -- in fact,
that's what happened with Nelson Rockefeller.
He got very angry because the Syracuse press
bitterly turned on Nelson over Medicaid.
The Governor got really angry at my
father too. And my father's argument on
Medicaid was that they went too far, that it
would break the state eventually. And he was
absolutely right. I mean, the state was on
2122
the verge of breaking. His prediction that it
would happen in the early '80s was a bit
maybe -- or the late '70s, rather, was a
little premature. But he certainly, I think,
was on target.
And my father had an alternative,
if I remember right. And I think John would
probably remember. But we won't get into
that.
But Gus was the kind of fellow who
loved the institution. Not -- you know, he
was different from many of the media today.
That, as opposed to beltway legislators from
years ago, beltway media people who for the
most part don't have any connection of the
city that they write for, Gus was a devotee of
Syracuse, the Syracuse region. He loved
Albany, too. But I think, you know, his whole
gear was toward helping Albany.
And I remember when Tarky Lombardi
announced his retirement, Gus was in tears.
He went to Tarky and -- as did, by the way,
the people who ran his paper, who had just
castigated Tarky unmercifully, and said: "You
can't retire."
2123
And he said: "What do you mean?
You've been spearing me for two" -- and he
said, "Yeah, but that's politics. That's
government. But you just can't retire, we
need you." He said, "You're a little too
late. It's time for me to go."
I only mention that because Gus was
the kind of fellow, he could get pretty tough.
And he got tough on me a couple of times. And
then he always would then come over and say,
"I just had to tell the truth," or whatever,
and we'd laugh.
He was a good man, a good reporter.
And he will certainly be missed. And I think
that he is a part of this institution in many
ways. And one thing that's different, I
think, about Gus than a lot of others, most of
the media -- and I understand the big stories
are over at the Assembly these days, because
they fight a lot more than we do and all that.
Although lately we're having some problems.
But Gus Bliven really loved the
Senate -- and I don't say that he didn't go to
the Assembly -- because I think he felt more
comfortable here and felt that in many ways
2124
that we were the ones that tended to drive
more of the issues that this state needs to
deal with.
And he certainly will be missed. I
have no doubt that right now he's probably in
heaven advising some of the people that are in
charge there as to how they should deal with
some issues. He was a good man.
THE PRESIDENT: Senator
Stachowski.
SENATOR STACHOWSKI: Yes, Madam
President. I'd like to join with the voices
speaking about Gus Bliven.
I sat in that seat that Senator
Lachman has for quite a long time. And Gus
did sit right there. And he'd make little
remarks during the session. And when Senator
Hoffmann wasn't talking to him, he'd be making
comments about some of the bills or some of
the debates. And it was always interesting.
And Gus was very dedicated. And I
think that although the reporters can listen
on the squawk box, and most of them do, it was
kind of refreshing when I first got here that
all the reporters used to be up in front and
2125
they cared enough to walk in the chamber and
write the articles and listen to the debate
and watch what was going on. And Gus was
always here. He was like part of the chamber
while he worked here.
I think that was a work ethic that
we all admired. Whether you agreed with his
articles or not, you admired the fact that he
was here, he paid attention, he followed up.
And I think that was the way we all thought
journalists should do it. And there's nothing
wrong with the idea of having squawk boxes and
doing it that way, but it just added a little
something, that personal touch, that I think
is missing now in some of the stuff that goes
on.
But Gus was a true professional
and, when you got to know him, he was an
enjoyable man. And we all miss him. And it's
maybe something more of the new writers should
emulate.
THE PRESIDENT: Senator Smith.
SENATOR MALCOLM SMITH: Thank
you, Madam President. I chose to wait this
time.
2126
As one of the newer members, I have
absolutely no experience with Gus, nor have I
ever met him. However, I can tell you, from
my experience, it's been very difficult for
individuals and individual bodies to honor
those that are in the press. They seem to
often get a raw deal, they seem to have a very
difficult time at enduring friendships and
being honored, because from time to time they
choose to portray stories obviously a little
bit different than those who are the subject
matter of that story.
I sat here listening to the
distinguished Senator Marchi, who I just enjoy
listening to. I think he has a wealth of
history to offer. And Senator Brown and I
were sitting here and as we were talking to
Senator Smith, when you began to speak, we
thought it was time to just stop and listen
because of all that you tend to offer.
And I can tell you, from what I
heard, I am just simply honored to be a part
of a body that is going to honor a gentleman
such as Gus. And I just thought it was
fitting to, while we did not have the
2127
experience with Gus, just to be on the record
as indicating that, Gus, wherever you are,
that you continue to write, that you have been
writing. And I'm sure that there are others
who will offer the same kind of sentiment and
honor to you.
And again, I just am glad to be a
part of this body. And, Senator Hoffmann,
kudos to you for the recognition that I'm sure
he so rightly deserves.
THE PRESIDENT: Senator Ada
Smith.
SENATOR ADA SMITH: Thank you,
Madam President. It's certainly a pleasure to
be able to stand and speak about a man who
certainly exemplifies what I believe the press
should be about.
It was always a pleasure to sit
here and hear Gus's remarks about certain
bills or for him to come across with a wry
remark every now and then. And having sat
next to Senator Hoffmann, I often benefited
from some of his comments.
And even though I may not have
agreed with what he wrote at times, he
2128
certainly had a clear understanding of this
body and of the people who have been elected
to represent the people of the State of New
York. And I believe that he took the time to
know something about each and every one of us,
because he would not write something about us
that he did not believe, and he would not
write something that he did not believe in.
And that truly is the merit of a
man who cared about what he did, and it was
shown in his work. He will be truly missed.
And I too believe that he's up there writing
those articles and advising others about
things that we haven't even decided upon yet.
THE PRESIDENT: Senator Maltese.
SENATOR MALTESE: Madam
President, Gus was a consummate newspaperman.
I knew him through the '70s and through the
'80s. And at that time, as the executive
director of a so-called minor party, I
sometimes felt that we were neglected or
ignored. But not by Gus Bliven, and not by
the newspapers in Onondaga.
Gus, as Senator Smith and others
have said, was the most informed,
2129
well-informed newspaper man in the state of
New York. There's absolutely no question.
His columns, his regular columns contained
what some of us would term political minutiae,
government minutiae that nobody else was aware
of. And yet he made it interesting and he
made it something that was pertinent to the
business of government.
I don't know -- and when I came to
the Legislature, I knew that if there was a
session that, whether it contained something
that was of earthshaking importance or
something that perhaps was regular legislative
business, Gus Bliven would be there, present
and reporting on it and seeking you out
afterwards to get the inside story.
He's somebody of who it can be
truly said his kind will not come this way
again. He will be sorely missed.
THE PRESIDENT: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Madam
President. I rise to join my former
Democratic colleague and my classmate, Senator
Hoffmann, who came in.
2130
There were three women who came
into this body in the same year. She was one
of them. And I sat next to her on the other
side. I suppose the three women, the three
Democratic women, sat together that year. And
we had interesting conversations with Senator
Hoffmann.
But the one thing that I always was
a little bit envious of was that as far as
I -- my experience went, the only time that
Gus would smile was when Senator Hoffmann
would go and sit next to him and whisper in
his ear. And so I thought that was
interesting.
But nonetheless, even with that, he
was -- he remained a fair and nonbiased
reporter in the way that he talked about the
proceedings here and the discussions that went
on. And so I respected him. And I really
miss him, because he was a fixture. He was
always there. So when there was no other
press that was interested remotely in what we
were doing in our house, Gus Bliven would be
there to report for us and on us.
So I join Senator Hoffmann even
2131
though she is on the other side of the aisle.
I certainly appreciate the fact that she was
very close to him. And he did very often want
to know how she was doing. So I thought that
was a special kind of sensitivity, even though
he was a reporter.
And, Senator Hoffmann, I appreciate
the fact that you've made a wonderful tribute
to him. And I think he was so worthy of it
and would be pleased to know that you've made
a tremendous statement on his behalf and in
his honor.
Thank you very much.
THE PRESIDENT: Senator Stavisky.
SENATOR STAVISKY: Thank you,
Madam President. I too remember when Gus
Bliven would walk out of the chamber with
Senator Hoffmann and his face would light up,
as Senator Montgomery said.
I remember him when he was a little
younger, only in his sixties or seventies. We
used to see him at night when the session
would be over, particularly during the time
when he might be covering the Assembly during
one of their all-night sessions. And he would
2132
be crossing the street in the middle of the
night. And I remember once my husband offered
him a lift, and he said no. And at 2 o'clock
in the morning or 3 o'clock in the morning,
after a lengthy session, he would continue on
his way.
In many ways, Gus Bliven was a -
could have stepped out of the movie or the
play "The Front Page." He was that kind of
newsman. And I know that -- I suspect that if
he were sitting here listening to the
accolades, he would go off in his curmudgeonly
old face. But deep inside, I'm sure that he's
very delighted with everything that everyone
said.
So I'm happy to make it a
bipartisan resolution. Thank you.
THE PRESIDENT: On the
resolution, all in favor signify by saying
aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
SENATOR HOFFMANN: Madam
President.
2133
THE PRESIDENT: Senator Hoffmann.
SENATOR HOFFMANN: If the
resolution could be opened up for all members
of the Senate, I'm sure that Gus Bliven would
be most pleased.
THE PRESIDENT: We'll adopt it
first, Senator Hoffmann.
The resolution is adopted.
All members who do not wish to be
on this resolution, please notify the desk.
Thank you, Senator Hoffmann.
Senator Velella.
SENATOR VELELLA: Madam
President, can we go to the noncontroversial
reading of the calendar.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
68, by Senator Marcellino, Senate Print 487,
an act to amend the Vehicle and Traffic Law,
in relation to aggravated unlicensed
operation.
SENATOR HEVESI: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
2134
THE SECRETARY: Calendar Number
89, by Senator Seward, Senate Print 1575, an
act to amend the Insurance Law, in relation to
expanding.
SENATOR DUANE: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
92, by Senator Balboni, Senate Print 860, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation.
SENATOR HEVESI: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
146, by Senator Saland, Senate Print 587, an
act to amend the Family Court Act, in relation
to extensions.
SENATOR DUANE: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
147, by Senator Saland, Senate Print 588, an
act to amend the Family Court Act, in relation
2135
to procedures.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
158, by Senator Wright, Senate Print 1087, an
act to direct the Department of Public Service
to prepare.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
162, by Senator Meier, Senate Print 1449, an
act to amend the Social Services Law and
others, in relation to penalties.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
163, by Senator Morahan, Senate Print 833, an
act to amend the Education Law, in relation to
certain BOCES programs.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
2136
aside.
THE SECRETARY: Calendar Number
195, by Senator LaValle, Senate Print 2082, an
act authorizing the Office of Real Property
Services.
THE PRESIDENT: Read the last
section.
SENATOR DUANE: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
200, by Senator Trunzo, Senate Print 2032, an
act to amend Chapter 672 of the Laws of 1993.
SENATOR DUANE: Lay it aside,
please.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
220, Senate Budget Bill, Senate Print 3456, an
act to amend Chapters 50, 53, and 55.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Lay it aside,
please.
THE PRESIDENT: The bill is laid
2137
aside.
Senator Velella, that completes the
reading of the noncontroversial calendar.
SENATOR VELELLA: Can we proceed
to the reading of the controversial calendar,
in order, please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
68, by Senator Marcellino, Senate Print 487,
an act to amend the Vehicle and Traffic Law,
in relation to aggravated unlicensed operation
of a motor.
SENATOR HEVESI: Explanation,
please.
THE PRESIDENT: Senator
Marcellino, Senator Hevesi has requested an
explanation.
SENATOR MARCELLINO: Thank you,
Madam President. It would be my pleasure to
give him one.
This particular bill changes one
word in the law, that word being "three" to
"two." It amends the Vehicle and Traffic Law
to require -- let me start it again.
2138
This bill amends Section 511 of the
Vehicle and Traffic Law. It changes one word
in the law, which is an element of aggravated
unlicensed motor vehicle operation in the
second degree, to require two or more separate
suspensions for failure to answer, appear, or
pay a fine, rather than three or more separate
suspensions.
This bill has passed the Senate in
'99, 59 to nothing, and in 2000, 58 to
nothing. It passed prior to that on many
occasions. It has an Assembly sponsor. The
Assembly for some reason has never seen fit to
move this bill. We in the Senate pass it each
and every year.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Would the
sponsor yield, please.
THE PRESIDENT: Senator
Marcellino, will you yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: You may proceed,
Senator.
SENATOR HEVESI: Thank you.
2139
Madam President, if the sponsor
would differentiate, if he could, between
aggravated unlicensed operation and unlicensed
operation, just for clarification purposes.
Is aggravated unlicensed operating a motor
vehicle if your license has been suspended or
revoked and the nonaggravated category if you
are just operating a motor vehicle without a
license?
SENATOR MARCELLINO: Yes.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Just for
clarification purposes, the bill that's before
us right now reduces from three to two the
number of prior suspensions or revocations
that would then elevate the offense to
aggravated unlicensed operation in the second
degree from the first degree; is that
accurate?
2140
SENATOR MARCELLINO: From the
third degree to the second degree, Senator.
SENATOR HEVESI: I'm sorry, from
the third degree to the second degree.
SENATOR MARCELLINO: Yes.
SENATOR HEVESI: Okay. So, Madam
President, would the sponsor continue to
yield?
THE PRESIDENT: Senator, will you
yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Just to be clear
on how this functions or would function if
this legislation was to be adopted, if I have
two license suspensions under the third
degree, aggravated unlicensed operation in the
third degree, if I've got two of them right
now and I get a third, I'm still only eligible
for the penalties under the third-degree
unlicensed operation, and passage of this
legislation and subsequent signing by this
Governor, if this were to become law, on the
third charge of aggravated unlicensed
operation in the third degree, I would then be
2141
subject to the penalties of aggravated
unlicensed operation in the second degree?
SENATOR MARCELLINO: There's an
old saying, Senator: Fool me once, shame on
you; fool me twice, shame on me.
What we're doing here is saying if
you are caught twice knowingly operating a
motor vehicle without a license and you are
caught or you fail to appear to pay your fine,
you have -- a second time, a judge can issue
the fine. Rather than waiting for you to do
it a third time.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield.
THE PRESIDENT: Senator, will you
yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
I understand that that's the
intention of the bill, and I certainly support
that intention.
I'm just trying to nail down
specifically what this change means. That on
the third offense for aggravated unlicensed
2142
operation in the third degree, if I committed
that offense for a third time, I become
eligible for the penalties under aggravated
unlicensed operation in the second degree?
SENATOR MARCELLINO: Senator, the
bill reads, starting from line 4, such person
has in effect -- it used to be three, it will
be now two or more -- suspensions imposed on
at least -- now, two separate dates for
failure to answer, appear, or pay a fine
pursuant to subdivision 3, Section 226 of
subdivision 4A of Section 510 of this chapter.
We change -- we reduce the number
of times you get caught before the act comes
into effect. We don't feel we should be
allowing people to drive knowingly without a
license and get -- and have the privilege of
being caught three times before they get
nailed for it. We think if they get caught -
frankly, I think the first time would be
enough, but we'll give them the first time as
a warning. The second time, they're going to
pay a heavy fine.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield.
2143
THE PRESIDENT: Senator -
SENATOR MARCELLINO: Yes.
THE PRESIDENT: Proceed.
SENATOR HEVESI: I believe that
that's a yes -- and I -- I hope it is, that on
the third, the third time, then you can be
eligible -- you would be made eligible for the
penalties under aggravated unlicensed
operation in the second degree, for which I
assume the penalties are higher.
But it's not -- my question to the
sponsor, Madam President, is the following.
My understanding of this legislation is that
it requires the third suspension or revocation
to kick the penalties into the higher
classification. And my question is, why
aren't we providing for a higher
classification of penalty, aggravated
unlicensed operation in the second degree,
after the second offense?
In other words, I believe that this
legislation may not go far enough, and I'd
like the sponsor to comment on that.
SENATOR MARCELLINO: I believe at
this point in time the legislation goes far
2144
enough.
SENATOR HEVESI: Okay, thank you.
Madam President, would the sponsor
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
Madam President, if the sponsor
could inform us as to what the penalties are
for aggravated unlicensed operation in the
third degree.
SENATOR MARCELLINO: When a
person is convicted of -- a fine of $200 to
$500 or jail up to 30 days, or both.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield.
THE PRESIDENT: Senator
Marcellino, do you yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
2145
please tell us what the penalties are for
aggravated unlicensed operation in the second
degree, the penalties which would under this
legislation take effect after the third
offense.
SENATOR MARCELLINO: When a
person is convicted of such a crime, which is
a misdemeanor, the court imposes a fine of not
less than $500, not more than a thousand, and
a term of imprisonment between 7 and 180 days,
where appropriate, or a sentence of probation.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: My understanding
is that there is also an aggravated unlicensed
operation in the first degree offense. And my
question to the sponsor is, is there a similar
trigger in the number of infractions under
aggravated unlicensed operation in the second
degree that would then make an individual
2146
eligible for penalties under aggravated
unlicensed operation in the first degree?
The implication, of course, being
that the change we're making today in
aggravated unlicensed operation in the third
degree could have an implication of kicking
somebody who's committed an offense in the
second degree up to the first degree.
SENATOR MARCELLINO: I believe
it's ten or more, in the case that you cite.
And I believe it's a Class E felony at this
particular time.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Do I understand
correctly that it takes ten offenses, ten
convictions of aggravated unlicensed operation
in the second degree before the offense is
elevated to the first degree?
SENATOR MARCELLINO: Ten
suspensions of your license.
2147
SENATOR HEVESI: Ten suspensions
of your license.
SENATOR MARCELLINO: That's
right.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
SENATOR MARCELLINO: Sure.
THE PRESIDENT: Senator, you may
proceed.
SENATOR HEVESI: I'm curious if
the sponsor can -- I didn't know this. And
I'm curious as to why it is more pressing to
elevate somebody who's committed two
infractions under the third degree than it is
to reduce the number of infractions under the
second degree for somebody who has egregiously
flaunted the law for making the more serious
penalties that would take effect under
aggravated unlicensed operation in the first
degree.
SENATOR MARCELLINO: Well, I'm no
expert at it, and I probably cannot give you
specific numbers. My guess is because there
are far more of this particular level than get
to the tenth, the first degree. And hopefully
2148
by increasing the penalties on people who have
a -- you know, with a lesser fine, we might
prevent them from ever dealing with the first
degree.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: My pleasure.
I'm having fun.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you.
I'm not sure that this legislation
is efficacious in light of what we've just
heard, since if you had two convictions under
the third degree, you get the third
conviction, it means you're eligible for
penalties under aggravated unlicensed
operation in the second degree. And the law
is clearly lenient, excessively lenient under
the second degree, allowing for up to ten
violations before you have a felony offense
that you're looking at.
So my question to the sponsor,
would he consider amending this legislation to
2149
reduce the number of infractions under the
second degree before the first-degree
penalties would kick in.
SENATOR MARCELLINO: We think the
legislation is perfectly appropriate. We are
not willing to amend this particular
legislation.
We certainly will look into another
piece of legislation dealing with the
aggravated operation of a motor vehicle in the
first degree, after we do some research on it.
But this bill right now deals with a situation
we think is fine, and we're going to move
ahead with it.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you. And
thank you for your patience, Senator
Marcellino. I do appreciate you taking the
time with this important matter.
Is there any difference in the
2150
offense that would have to be committed to be
charged initially with the different -- with
one of the different degrees? In other words,
the first offense is always a charge of
aggravated unlicensed operation in the third
degree, and the only thing that elevates it to
a higher degree is the extent to which the
individual was engaging in recidivist
behavior?
SENATOR MARCELLINO: Not a
conviction, I'm told by learned counsel. It
is a suspension.
SENATOR HEVESI: Understood. But
then let me just clarify on that point.
The number of suspensions is the
only factor which determines whether or not
you will be charged with third degree, second
degree, or first degree?
SENATOR MARCELLINO: My guess -
not my guess, I believe you're absolutely
correct. If you knowingly operate the motor
vehicle after your license has been suspended,
you have committed aggravated operation of a
motor vehicle.
SENATOR HEVESI: Thank you.
2151
Madam President, would the sponsor
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Thank you. So
there is no additional infraction which would
in any way impact the penalties that an
individual could be charged with, such as
driving while intoxicated, reckless
endangerment, some other type of activity?
This is -- aggravated unlicensed
operation is in and of itself its own offense,
and only changed in degree by the number of
infractions the person has committed?
SENATOR MARCELLINO: Yes.
SENATOR HEVESI: Thank you.
Madam President, on the bill.
Thank you. And I want to thank the
sponsor for taking the time to go through the
situation surrounding this bill, because it's
important. I just learned something here that
I think many of my other colleagues just
learned, which is that though this legislation
2152
is well-intentioned, we have now exposed a
tremendous problem.
I think it's outrageous that
somebody could flaunt the law so egregiously
and ten times -- it's actually not ten times,
Madam President, it's more than that. Because
it's, under current law, three offenses under
the third degree before you're kicked into the
second degree, and then you're allowed an
additional ten offenses.
So if my math is correct, it's only
on the 14th offense, the 14th offense of
driving with a revoked or suspended license
that you are eligible for felony punishment.
That's ridiculous.
And while I commend Senator
Marcellino for bringing this bill to our
attention, I think we just took a look at a
bigger problem in the law. And we hear all
the time about individuals who have, in
concert with this offense -- because often
driving without a valid license is not the
offense for which the person has been stopped,
it's the fact that they were driving
recklessly or they were driving while under
2153
the influence of alcohol or driving under the
influence of drugs or some other offense. And
then it turns out -- and we hear this in press
reports all the time -- that this individual
had had his license suspended, or her license
suspended, a whole slew of times.
This is outrageous. Really
outrageous. I would even suggest that the
legislation that we have in front of us
doesn't go far enough in even addressing the
escalating penalties in the third degree. I
don't know why we have to wait till somebody
commits three offenses of the same kind,
meaning that they're driving, they get their
license suspended, they drive again, they get
their license suspended, they drive again -
and then and only then, under this bill, would
they be allowed to have an additional penalty,
which is still a misdemeanor offense.
Why are we permitting that? I
would suggest that this bill, only addressing
aggravated unlicensed operation in the third
degree, would be a better bill if somebody,
the second time they committed an infraction,
had their penalties escalated by kicking it
2154
into the second degree.
I'm a lenient person, particularly
with nonviolent offenses. But if you commit
the same crime a second time, I think leniency
should go out the window. And so this
legislation falls short in its intended mark,
and I believe that its intended mark is way
too narrow in scope. It's ridiculous that
somebody can drive with a suspended license 13
times before they can get a felony conviction
against them or have a felony charge brought
against them. It's ridiculous. We're sending
the wrong message.
So I commend Senator Marcellino on
his pursuit in this area, but I suggest that
we are being way too lenient on people who are
so egregiously flaunting the law and
jeopardizing the lives of thousands of
New Yorkers with their continued recidivist
behavior in this very serious area,
understanding that in many, many circumstances
driving with a suspended or revoked license is
not the only offense that the individuals are
committing.
We catch these people more often
2155
than not, not because we knew somehow that
they were driving with a suspended license.
You're not pulled over because some police
officer suspected it. That would be illegal.
The individual was pulled over for some other
infraction, and then we found out that they
had a license that was not valid, for whatever
reason.
So we are -- by not addressing this
problem, we are really doing ourselves a great
disservice, and we are compromising people's
lives. I suggest -- I'm going to vote for
this bill, although I do believe it's a flawed
bill. It's one of these frequent occasions
that I find myself here in the Senate voting
in favor of something that I don't think is
perfect. But I'm not going to let the perfect
be the enemy of the good.
So I'm going to support this, but I
really would request that Senator Marcellino,
who I know is caring and passionate about this
issue and really wants to make a positive
difference, to please go back and let's amend
the section of law that pertains to this
legislation, which is going to pass today, to
2156
make it more restrictive. And certainly look
at aggravated harassment in the second degree,
where now it takes ten offenses -- ten
offenses. Which boggles my mind.
Because if that's what it says in
the law, it means, Madam President, that at
some point somebody actually said -- it wasn't
that the law was silent on this, somebody
said: It shall take ten offenses before this
is elevated to a felony offense. That's
ridiculous. I want to know who did that.
And I'm surprised that my
colleagues on the other side of the aisle, who
are very conservative in their approach to
criminal justice, as am I, allowed that to
happen. I don't know the genesis of that, but
I'm surprised that that was allowed to happen.
That's soft on crime. I'm surprised with my
colleagues on the other side of the aisle that
put on a bill here that's soft on crime. I
think it's a big mistake, and I hope we see
some remedial action on this soon.
Thank you, Madam President.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, Madam
2157
President, through you, will the sponsor yield
to a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Surely.
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: I invariably
appreciate short bills that are concise and
spelled out. But I have a question or two
about the spelling out of this legislation,
which I think is good as far as it goes.
Do the local police as well as the
Bureau of Motor Vehicles have a record of each
individual's suspension or revocation of
license?
SENATOR MARCELLINO: My guess is
yes.
SENATOR LACHMAN: Pardon?
SENATOR MARCELLINO: My guess is
yes.
SENATOR LACHMAN: Your guess is
yes.
SENATOR MARCELLINO: Yes.
SENATOR LACHMAN: But you don't
know for sure.
2158
SENATOR MARCELLINO: No, I
haven't looked at it personally.
SENATOR LACHMAN: Okay. Second
question. Since many people drive for 30 or
40 years, do they have information relating to
this if they might have had a suspension 40
years ago and might not recall it today at the
age of 85 or 83 while they're still driving?
SENATOR MARCELLINO: You wouldn't
have been able to renew your license if you
hadn't been told that your license had
previously been suspended.
SENATOR LACHMAN: So they would
not have been able to renew their license at
the end of the year. So they are given annual
information about their -
SENATOR MARCELLINO: Not annual
information, Senator. It's whenever you get
the license renewal form. You've got to go
into the Department of Motor Vehicles, you
either mail it in or go in in person, and you
have to renew your license.
If your license had been suspended
and you had never done it the first time, then
they would have brought that to your
2159
attention: Your license is suspended, get in
here and get it done. You're usually notified
by the Department of Motor Vehicles that your
license is or has been suspended. It's
usually done in writing.
SENATOR LACHMAN: Madam
President, will the Senator continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Sure.
SENATOR LACHMAN: Do you believe
that this was the case 20, 30, 40 years ago?
SENATOR MARCELLINO: Yes,
absolutely.
SENATOR LACHMAN: Okay, there was
no change.
Okay, Madam President, will the
Senator continue to yield.
THE PRESIDENT: Senator?
SENATOR MARCELLINO: Certainly.
SENATOR LACHMAN: Is driving
while intoxicated an element of aggravated
unlicensed operation of a car in the second
degree or the first degree?
SENATOR MARCELLINO: As I
2160
answered to Senator -
SENATOR LACHMAN: And why?
SENATOR MARCELLINO: -- Hevesi
when he asked me the very same question,
Senator, they're two separate acts. You could
be driving while intoxicated and have a
perfectly valid driving license. You would
get ticketed for driving while intoxicated.
You could be driving while intoxicated and
caught and you have no driving license because
it was suspended, revoked or whatever, and
then you would get a ticket for DWI and you
would get a ticket for the driving without a
license. So you'd get two tickets.
SENATOR LACHMAN: Now, Madam
President, is that standard applicable
throughout the State of New York? Or is it
based upon individual counties?
SENATOR MARCELLINO: It's the law
in the state. To my knowledge, yes.
SENATOR LACHMAN: Thank you very
much.
THE PRESIDENT: Read the last
section.
Senator Paterson.
2161
SENATOR PATERSON: Madam
President, if the Senator would yield for a
few questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Sure.
THE PRESIDENT: Go ahead.
SENATOR PATERSON: Senator, I
concur with Senator Hevesi's frustration and
feel it myself, even though it's not
specifically what this bill addresses -
SENATOR MARCELLINO: Madam
President, would Senator Paterson yield to a
question?
THE PRESIDENT: Senator Paterson,
will you yield?
SENATOR PATERSON: Is it germane,
Madam President?
SENATOR MARCELLINO: I believe
it's germane, Madam President.
SENATOR PATERSON: I'd be happy
to.
THE PRESIDENT: Go ahead,
Senator.
SENATOR MARCELLINO: Senator
2162
Paterson, I believe you have been in the
Senate a lot longer than I have and you
personally have been present on the floor when
my colleague and former -- all of our
colleague and former Senator Norman Levy
carried this particular piece of legislation
for many years.
Are you familiar with the fact that
this bill has never, never been brought to the
floor in the other chamber?
SENATOR PATERSON: I wasn't
familiar with that until today, Senator.
Until yesterday, actually.
SENATOR MARCELLINO: Senator, let
me bring it to you. The fact is that it has
never -- although it has had an Assembly
sponsor. Assemblyman Englebright carried it
with my predecessor, Norman Levy, for a number
of years. He has never been able to get onto
the floor, get it even out of committee in the
other house.
If you want to talk about
frustration, Senator, to my mind, that's
frustrating, that while we will do it here,
the other chamber sees fit to disregard even
2163
this bill. If you think this bill isn't -- or
doesn't go forward enough, what could you
possibly think of the other chamber's inaction
on a bill such as this?
SENATOR PATERSON: Madam
President, I have -- I don't know why this
bill wouldn't have come out of committee. I
voted for this bill.
And it just brings to mind a
frustration I guess that Senator Marcellino
and I both feel about legislation that would
be valid or effective and would change the
quality of life or, in this case, hinder the
danger to life perpetrated by people whose
licenses were suspended and didn't even have
regard enough for the law to cease and desist
from operating their motor vehicles until the
time that this suspension had ended.
I understand how Senator Marcellino
feels. I've had a couple of bills that don't
seem to come out of committee -
SENATOR DUANE: Madam President.
THE PRESIDENT: Senator Duane,
why do you rise?
SENATOR MARCELLINO: I'm the
2164
chair, and I believe I still have the floor.
THE PRESIDENT: Senator
Marcellino has the floor now.
Senator Paterson did yield.
SENATOR MARCELLINO: However, I
thank the Senator for his comments, and I'll
be glad to give back the floor.
THE PRESIDENT: Senator
Marcellino, you do still have the floor. You
may proceed.
SENATOR MARCELLINO: I just want
to thank him for his comments and yield back
the floor.
THE PRESIDENT: Senator Paterson,
you have the floor now.
And, Senator Duane, why do you
rise?
SENATOR DUANE: I was just hoping
that Senator Paterson would yield for a
question.
THE PRESIDENT: Senator, will you
yield?
SENATOR PATERSON: I'd be most
delighted to.
THE PRESIDENT: You may proceed,
2165
Senator Duane.
SENATOR DUANE: Thank you.
I'm wondering if Senator Paterson
is feeling Senator Marcellino's pain on what's
happening with this bill.
(Laughter.)
SENATOR PATERSON: Well, Senator
Duane -
THE PRESIDENT: Senator, please
keep your remarks germane.
SENATOR PATERSON: -- I too have
an office on 125th Street. And I do
understand what Senator Marcellino is saying.
When I look at this bill, I'm
trying to think of why the bill wouldn't
necessarily pass. And I have some questions
that perhaps when I get some answers, I might
be able to be of some assistance.
I've always felt that there was a
valid reason why legislation doesn't come out
of committee. But maybe that's something that
in both houses we need to really start
examining, because if that's not the case,
then we're just having a recitation of
legislation over and over again without any
2166
real resolution.
I know we -- Senator Duane, we
brought in conference committees to try to
help this along at a certain point. But I
guess they wouldn't apply, because we haven't
had passage of the legislation in the other
house.
I could cite a couple of reasons
for why that might be the case. Section 607
of the Laws of 1993 upgraded this from a
traffic violation to a misdemeanor. And
perhaps there's a feeling in the other house
that we are addressing this legislation on the
front end and perhaps not where Senator Hevesi
wants to go, which is unlicensed operation of
a motor vehicle in the second degree, what -
how many violations we allow before it goes to
a first degree, which is an E felony. That's
the change from a misdemeanor to an E felony.
So I'm just kind of searching. I
don't -- I don't really know the answer to
that question. But I do understand what
Senator Marcellino is saying, and I take it
very seriously.
THE PRESIDENT: Senator Duane.
2167
SENATOR DUANE: Thank you, Madam
President. If Senator Paterson would yield
for another question.
THE PRESIDENT: Senator Paterson,
will you yield?
SENATOR PATERSON: Most
assuredly, Madam President.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR DUANE: Thank you. I'm
wondering if Senator Paterson might agree with
the assertion that there is dysfunction in the
legislative process here in Albany and that
perhaps that's what most needs to be
addressed.
SENATOR PATERSON: Well, most
specifically to this legislation, I think this
would be a prima facie case of it. I don't
understand -- well, one of the problems that I
think has been a situation in vehicular
violations, not having driven a vehicle myself
in a while, I would say that there is a -
SENATOR OPPENHEIMER: Thank God.
(Laughter.)
SENATOR PATERSON: There is a
2168
problem with the issuance of a lot of these
suspensions and whether or not the operator of
the vehicle is aware that the license is
actually suspended. In other times, in other
aspects of the law, we find that people say
they didn't get notice, particularly with
removals from property and that type of thing.
But with the Department of Motor
Vehicles -- not to in any way impugn the
people that work there -- there does seem to
be an issue of service. And one of the
questions I'm going to ask Senator Marcellino
before I'm done is just what really
constitutes valid evidence that there was or
was not service.
But the legislative process does
seem to be, as I have always felt, driven in a
fashion that the individual legislator doesn't
have as much of an opportunity to pass laws
and to change the course of events in the
state as one should. Sometimes I think
that -
THE PRESIDENT: Senator Paterson,
I'd like to ask, are you speaking on the bill,
or do you have a question?
2169
SENATOR PATERSON: I'm answering
Senator Duane's question, I thought.
THE PRESIDENT: All right. As
long as you keep your response germane to the
substance of the bill, I'll allow you to
continue.
SENATOR PATERSON: Thank you,
Madam President.
THE PRESIDENT: You're welcome.
SENATOR PATERSON: What I would
say is that related to this bill, perhaps we
as legislators are kind of drowning in an orgy
of self-compromise.
We keep allowing these pieces of
legislation to be administered singularly
rather than through our committee system.
Some of the discussions that we've had here on
this bill and other bills, to add to the point
that I'm making with this bill, are
specifically decisions that I think were more
apt in the committee process and were in that
process 15 years ago when I came to the
Senate.
Because they are not, I think that
you have a situation like we have with Senator
2170
Marcellino's bill, where it is not really
seeing the light of day perhaps in the other
house because no one understands that it is
probably a precursor -- and at some point I'm
going to inquire of Senator Marcellino whether
or not this is the case -- it is probably a
precursor of Senator Marcellino's willingness
to a look at unlicensed operation of a motor
vehicle in the second degree as much as in the
one that's before us at this time.
THE PRESIDENT: Read the last
section.
SENATOR PATERSON: Madam
President, if Senator Marcellino would yield
for a couple of questions.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes, I yield
to Senator Paterson.
SENATOR PATERSON: Senator, are
you aware as to whether or not the police
department keeps records of suspended
licenses?
SENATOR MARCELLINO: I guess they
do.
2171
SENATOR LACHMAN: That was the
question I had asked.
SENATOR PATERSON: If the
question would continue to yield.
SENATOR MARCELLINO: I yield.
SENATOR PATERSON: I apologize.
I knew the answer to that question. What I
really meant to ask you, Senator, Madam
President, was whether or not the police
department keeps records of the number of
times that a person operated one of these
vehicles at a time when they did not have a
license.
SENATOR MARCELLINO: Senator,
it's my understanding that they would have
access to the Department of Motor Vehicles'
files.
SENATOR PATERSON: If the Senator
would continue to yield.
SENATOR MARCELLINO: I yield.
SENATOR PATERSON: Has there been
a problem with an inability to significantly
identify, where operators of vehicles are
stopped and it's concluded that they don't
have a license -- in other words, how many
2172
times this has been the case? Is this a
statistic that's been difficult for the
Department of Motor Vehicles to keep?
SENATOR MARCELLINO: I don't know
for a fact even if they keep that, Senator,
quite frankly.
SENATOR PATERSON: If the Senator
would continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Surely.
SENATOR PATERSON: Senator, the
point I was making before in response to the
question from Senator Duane, that being the
issue of service or what constitutes evidence
that the person who is being charged was aware
that their license was suspended, how do we
accomplish that right now?
SENATOR MARCELLINO: It's my
understanding -- as you know, Senator, I'm not
a lawyer. I'm but a humble schoolteacher. A
very compassionate one, I might add. Thank
you.
But it's my understanding that the
law creates a presumption that if you've been
2173
notified that you've been served or that
you've had your license suspended, that you
know it.
SENATOR PATERSON: Thank you,
Madam President. If the Senator would
continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes, I
yield, of course.
SENATOR PATERSON: Senator, this
is not the specific bill that you're
addressing, but I think it is germane to the
actual topic.
Is the reason that you are trying
to truncate the number of opportunities that
an individual operating an unlicensed vehicle
can be stopped before we meet the threshold of
committing a misdemeanor, is that a prelude to
your willingness to address what seems to be a
more serious problem that Senator Hevesi
addressed, which was that time after time,
people are stopped and have unlicensed
vehicles in the second degree and we never get
to that point where they recognize that
2174
they've broken the law and would possibly
incur jail time?
SENATOR MARCELLINO: Frankly,
Senator, no, that wasn't the case.
SENATOR PATERSON: Thank you.
THE PRESIDENT: Senator, I'm
going to remind you to keep your remarks
germane and to ask substantive questions,
please. And I will give you one more
opportunity.
SENATOR PATERSON: Well, Madam
President, if the Senator would continue to
yield.
And I will take that under
advisement.
THE PRESIDENT: Senator
Marcellino, do you continue to yield to these
questions?
SENATOR MARCELLINO: Sure.
Absolutely.
THE PRESIDENT: You may proceed
with a germane question on the substance of
the bill.
SENATOR PATERSON: Senator
Marcellino, on this specific piece of
2175
legislation -- and I apologize if I was trying
to determine what direction you were going.
But we upgraded this from a traffic violation
in 1993 to become a misdemeanor, this bill,
this particular germane piece of legislation.
And now, here in 2001, we're going to
eliminate the number of times that a person
who is caught operating a vehicle in this
fashion is -- that it accrues to become an
actual misdemeanor.
Is it not a valid argument that we
are continuing to tinker with what is really
the least punishable violation of the law on a
subject that has far more serious
ramifications when you look at it down the
line? That's why I'm asking this question.
Because perhaps the reason that the
other house is not passing the legislation is
because they just don't think that we're
addressing the part of the motor vehicle law
that really needs to be addressed. We've
addressed this only eight years ago. We
worked on Section 214 of the motor vehicle
law.
SENATOR MARCELLINO: The answer
2176
is no, Senator, I don't believe we're
tinkering.
SENATOR PATERSON: Madam
President, if the Senator would continue to
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: One more
question.
THE PRESIDENT: Senator Paterson,
you have the floor for a final question.
SENATOR PATERSON: Then my
question is, what information do you have or
what evidence can you bring before this body
that demonstrates that between 1993 and 2001
that there have been a significant number of
issues that have arisen from the fact that we
are not removing people's licenses and
charging them with a misdemeanor after the
second violation rather than the third?
SENATOR MARCELLINO: Senator, the
district attorneys of the state have contacted
us and asked us to make this change.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: I pass.
2177
SENATOR PATERSON: Madam
President.
THE PRESIDENT: Senator Paterson,
on the bill.
SENATOR PATERSON: On the bill,
yes.
Madam President, I don't know and
unfortunately was not made aware of what it is
that the District Attorneys Association would
present that would make us know that at this
particular time that we have to make this
change in the law. I am pretty sure, though,
that Senator Marcellino, in addition to being
a humble, compassionate, former schoolteacher,
is a pretty dynamic and effective legislator
and that he did have a reason.
But at this time, since my
allotment of questions has been used up, I
guess I won't know that answer but will listen
comprehensively to this discussion, because I
think that that would actually be not only a
prelude to me voting for the bill, but
dropping by the Assembly -- where we all know
I have great influence -- and talking to them
about this legislation as well.
2178
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: I pass.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. If the sponsor would yield,
please.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes, I
yield.
THE PRESIDENT: You may proceed.
SENATOR DUANE: Thank you. Does
the motorist have to have constructive notice
that their license has been suspended?
SENATOR MARCELLINO: I've
answered that question already about four
times, Senator.
SENATOR DUANE: Through you,
Madam President, if the sponsor would just
indulge me again, because I don't remember
hearing the answer.
THE PRESIDENT: Senator -
SENATOR MARCELLINO: Madam
President, I really don't feel like going back
over again what I've already answered in
2179
response.
THE PRESIDENT: Senator, that has
already been asked and answered, Senator
Duane.
SENATOR DUANE: Well, let me -
maybe this will elicit the response. Later
today -
THE PRESIDENT: Senator, you have
a new question?
SENATOR DUANE: Yes, I do, Madam
President. So would the sponsor continue to
yield for it?
THE PRESIDENT: Do you yield,
Senator Marcellino?
SENATOR MARCELLINO: Yes, I
yield.
THE PRESIDENT: You may proceed,
Senator Duane.
SENATOR MARCELLINO: I must
admit, Madam President, I will yield, but my
patience on a bill that is quite frankly
relatively simple and should not require all
this great discussion -- we are simply trying
to remove dangerous people from the road a
little sooner.
2180
But I will yield to one or two more
questions from the Senator.
THE PRESIDENT: Senator, you may
proceed with one or two questions, and that is
it.
SENATOR DUANE: Madam President,
I'm confident the sponsor will be pleasantly
surprised with the importance of my question.
THE PRESIDENT: Could you please
ask it, Senator.
SENATOR DUANE: Certainly.
SENATOR MARCELLINO: I look
forward to it.
SENATOR DUANE: Senator Balboni
had a bill on later today, Calendar Number 92,
which would state it is presumed a driver with
three suspensions will be presumed to have
knowledge of the suspensions. Your bill says
two. Can you describe what the impact of your
legislation would have on that legislation?
SENATOR MARCELLINO: I haven't
the slightest idea, Senator. I don't know,
Senator.
THE PRESIDENT: This is your last
question, Senator Duane?
2181
SENATOR DUANE: I just wanted to
clarify what -- I didn't hear what the Senator
said.
THE PRESIDENT: Senator
Marcellino, could you repeat your response?
SENATOR MARCELLINO: The answer
is I don't know.
SENATOR DUANE: Oh, okay.
THE PRESIDENT: Senator Duane, do
you have another question?
SENATOR DUANE: Thank you, Madam
President. On the bill.
I don't know, then, why we're
passing this bill if we don't know what the
impact of Calendar Number 92 is going to be on
this bill. So I guess I'll wait till we get
up to Calendar 92 and ask the sponsor of that
bill if he knows what the impact of Calendar
Number 68 is on that bill.
Though, frankly, I don't think we
should pass this bill till we find out what
the impact of that bill is. That's why we
have debates here on the floor. That's why we
ask questions, so that we can see how one
piece of legislation impacts on another piece
2182
of legislation. That's why we are called
legislators, so that we can actually
comprehensively pass legislation and not pass
each one in a vacuum.
So I'm looking forward to finding
out what the impact of one is on the other.
Maybe that bill will have to be recommitted
until we discover how it is that Senator
Balboni's piece of legislation will impact on
Senator Marcellino's legislation.
Thank you, Madam President.
THE PRESIDENT: Senator Brown.
SENATOR BROWN: Thank you, Madam
President. On the bill.
Just from listening to the
debate -- and I want to thank Senator
Marcellino for answering all of the
questions -- it is a little surprising to me
that we don't know what impact one piece of
legislation that is related will have on
another piece of legislation, and ultimately
the impact that it will have on the citizens
of the State of New York.
As Senator Hevesi and Senator
Paterson indicated, the committee process
2183
here -- which I'm not aware of, because I
haven't had the opportunity to participate in
such a committee process -- I am told used to
be much different.
THE PRESIDENT: Senator
Marcellino.
SENATOR MARCELLINO: Madam
President, one or two quick questions.
SENATOR BROWN: Yes, certainly,
Senator.
THE PRESIDENT: You may proceed,
Senator Marcellino.
SENATOR MARCELLINO: Senator, do
you have the annotated calendar in front of
you?
SENATOR BROWN: Yes, I do, sir.
SENATOR MARCELLINO: If you would
indulge me and would read -- you don't have to
read it aloud. But the bill and my bill -
maybe Senator Duane would have been better
served if he'd stayed. But what this bill
says is an act to amend Vehicle and Traffic
Law, blah, blah, blah, in relation to
operating a motor vehicle in the second
degree. My bill.
2184
Senator Balboni's bill, operating a
motor vehicle in the third degree. These are
two different sections of the law, two
different bills, two different issues. It's
apples and potato chips.
Thank you, Madam President.
SENATOR BROWN: Okay. Again, on
the bill.
As I was indicating, the committee
process, as I understand it, used to give
members of the State Legislature the ability
to discuss pieces of legislation and their
impact on various sections of law that are
related in totality. And through that process
now, I don't believe that we have much of an
opportunity to be able to do that.
Since I've been here in the Senate,
the longest committee meeting that I have had
an opportunity to sit through has been about
15 minutes. Generally we come into committee,
the process is moved very quickly, and it
seems like people want to get out of committee
meetings as quickly as they possibly can.
And I thought, when I ran for the
Senate and made the decision to run for the
2185
Senate, the reason that I was coming here was
to really be able to comprehensively look at
legislation and to be able to research
legislation and to be able to work on the
passage of legislation that in a comprehensive
fashion would really have an impact on the
citizens of the State of New York.
And I certainly appreciate what
Senator Marcellino said about this bill being
different than Senator Balboni's bill. But
there certainly is a relationship between the
two pieces of legislation. And they certainly
will have an impact on people driving with
suspended licenses.
So I just lament the fact that we
haven't been able to look at this issue in a
more comprehensive fashion, we haven't been
able to look at this issue in a way that would
probably, as Senator Hevesi has indicated,
deal with the problem a little bit more
efficiently.
I don't know why, after one
instance of driving with a suspended license,
that we don't get tougher on this issue. As
Senator Hevesi said, I think we give people
2186
too many opportunities, based on this piece of
legislation and the other piece of legislation
that will come before us, to drive with
suspended licenses in the state of New York.
And I think if we looked at the issue more
comprehensively, we would come up with a more
efficient way of addressing this serious
problem.
But I will be voting in the
affirmative on this bill.
THE PRESIDENT: Senator Onorato.
SENATOR ONORATO: Madam
President, will Senator Marcellino yield for a
question.
THE PRESIDENT: Senator, do you
yield?
SENATOR MARCELLINO: Yes.
THE PRESIDENT: You may proceed.
SENATOR ONORATO: I appreciate
your efforts in here. And you have been given
some very, very difficult questions, and your
answers to them have been right on target.
My concern is that we're dealing
here now with -
SENATOR MARCELLINO: Senator,
2187
excuse me, but I am having trouble hearing
you.
SENATOR ONORATO: Okay. My
question is we're dealing with a suspended
license. What happens to the individual who
drives who has never been issued a license and
continues driving without ever having been
issued a license? How does it apply, does
this apply in any way, shape or form?
SENATOR MARCELLINO: No, this
bill would not apply to that, Senator. That's
a whole different section of law.
SENATOR ONORATO: Thank you.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: Senator Paterson,
to explain your vote.
SENATOR PATERSON: Madam
President, I was -- I'm going to vote for this
2188
bill. But I would rather have had a clear
understanding of why the District Attorneys
Association wanted this legislation.
And I preface my remarks by saying
I'm going to vote for this bill because I
think it is a good bill, and I was somewhat
taken with Senator Marcellino's, well,
disappointment that this bill is not a law,
that he's worked on this bill a long time and
it's not a law. And it probably should be a
law.
But there are times legislators do
this -- I've done it, we've all done it -
where we know that there are issues, that
there are phrases that you use but you don't
really know what they mean, like getting
dangerous people off the road. Well, that
could be keeping them from crossing when they
shouldn't, keeping dangerous people from
operating a motor vehicle.
And, yes, that is what we want to
do. But to pass the legislation and to get
the Assembly interested, I think we have to be
a little bit more specific than that.
And Senator Marcellino accomplished
2189
something here today, which is that he got us
to talk about this legislation. And perhaps
that conversation will inure to the benefit of
the legislation and it will get passed in the
Assembly if some of those questions can be
answered to their satisfaction.
And I think that that's one of the
things that's somewhat lost around here, is
the opportunity to really understand and to
experience what another lawmaker is trying to
project through legislation, and to
distinguish it from just something that would
be somewhat puerile or just saying that we
want to accomplish something.
I think Senator Marcellino was
specific enough to convince me that we should
vote for the legislation. But I do think that
those questions will get asked again. And I
hope that the requisite information will be
transferred so that perhaps one day this will
be a law.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: Mr.
President, briefly, to explain my vote.
2190
ACTING PRESIDENT MEIER: Senator
Stachowski, to explain his vote.
SENATOR STACHOWSKI: I too am
going to support this legislation. I believe
that the give-and-take on this floor in this
debate was informational to me. I think that
there's always some cases that come to your
office, or people call complaining about
somebody that's driving with a suspended
license that maybe they had a collision with,
or some kind of situation with, and they say:
How can you keep letting these people drive
with suspended licenses and you don't do
anything about it?
And now at least I'll be able to
reference that we're trying to pass this law
that -- on increasing violations, that we're
trying to get these people off the road in
various ways.
And by listening to the debate and
the enlightening conversation that went along
with it, I have now more information about the
motor vehicle law, which I don't know all
about. Because not being a lawyer, I don't
know all the laws that are on the books. And
2191
by listening to some debates on ways we want
to change those laws, I get to learn more
about it and become more informed. And
therefore, when I get a question, I might have
a better answer for the people that call me
and ask me different questions.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: Mr. President,
to explain my vote.
ACTING PRESIDENT MEIER: Go
ahead.
SENATOR STAVISKY: I too am -- I
listened intently to the debate and to the
questions.
When I first read the bill this
morning, I was going to vote against it or at
least listen carefully, because I wondered
whether it was fair for an 18-year-old and a
person 30 or 40 years later to be responsible
for indiscretions of youthful inattention to
these details, so to speak.
Senator Marcellino has convinced me
that this is a very good piece of legislation,
2192
and the only way that we are able to
understand the legislation is by the discourse
that goes on in this chamber.
And I am voting for this bill for
another very important reason. And that is,
anything that will alleviate the carnage on
Queens Boulevard makes it a worthwhile effort.
We have a very serious problem in Queens
County with pedestrians being hit, some of
them by unlicensed motorists. And anything
that will help this serious situation -- part
of it is in my district. The Woodside,
Elmhurst sections of Queens Boulevard are in
my district. Northern Boulevard is another
problem area in Queens. And if we can help
promote the safety of the pedestrian traffic,
then I'm for it.
And I commend Senator Marcellino.
ACTING PRESIDENT MEIER: Senator
Stavisky will be recorded in the affirmative.
Senator Duane, to explain his vote.
SENATOR DUANE: Thank you, Mr.
President, to explain my vote.
I learned a long time ago that just
because a sponsor defines a bill to be simple
2193
and flawless doesn't make it so. And I think
that as a result of the debate today, we found
out that this legislation is neither flawless
nor simple. And I'm very much looking forward
to seeing what its impact is going to be on
legislation which we are soon -- I guess
soon -- going to take up.
I'm going to vote yes on this, but
I am going to be very interested in the impact
of Calendar Number 92 when it comes before us.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane will be recorded in the affirmative.
Senator Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President.
I think I can appreciate Senator
Marcellino's expressed frustration about not
getting this bill to the floor of the
Assembly. And I think a number of my
colleagues have alluded to a frustration of
not getting bills that we have worked on to
the floor of this house. And we understand
that frustration.
But I think, Senator Marcellino,
2194
the course of this debate may help you
alleviate that frustration. Why? Because you
now have fully informed members of the Senate
Democratic conference who could be your allies
in going to our Democratic colleagues in the
Assembly and explaining to them, Gee, we had a
debate with Senator Marcellino. He explained
a bill that seems to do a good thing, it
attacks a problem that has been difficult in
the City of New York, has created tragedies in
the City of New York, we have too many people
who are operating motor vehicles without
proper authority.
And I think the members of this
conference can go to our Democratic colleagues
in the other house and suggest to them: Gee,
we had a full debate, we explored all the
issues. Senator Marcellino's bill may not be
perfect, but it certainly does something or
tends to a problem that we all recognize.
And so I think that this debate has
produced a better-informed Democratic
conference, so in our discussions with our
Democratic colleagues in the other house, we
may be able to help Senator Marcellino
2195
overcome his frustration. I think that's one
of the benefits of a debate like this. We're
better informed. We can be better advocates
for this bill.
My hope is that this debate will
perhaps enlighten this house to bring more
bills that have Democratic names on them to
the floor, so that the frustration that
perhaps at times we've felt, an unfortunate
by-product of some other circumstances, that
those bills can come here, the frustrations
can be reduced on this side of the aisle and
on that side of the aisle, and we'll do the
job that the people of the State of New York
elected us all to do, which is to make these
bills into laws and into chapters.
I'll be voting in the affirmative,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger will be recorded in the affirmative.
Senator Gentile.
SENATOR GENTILE: Yes, just to
explain my vote, Mr. President.
Also kudos to Senator Marcellino,
who I believe has left the chamber -- no, he
2196
hasn't. There is he. Okay. My kudos also to
Senator Marcellino for this bill and for the
debate that we had here today. Because this
debate brought up many issues that I think
many members, many of my colleagues were very
concerned about.
And certainly I think you're right,
Senator Marcellino, in that this needs to come
to the floor of the Assembly. And I believe
Senator Dollinger is right also, in that we
can help with that effort to bring this
case -- this bill to the floor of the
Assembly.
You mentioned, though, that your
frustration may be tied to an issue that has
not been mentioned here before, and that is
the fact that in many cases, DMV records are
notoriously unreliable. And certainly from my
experience as a prosecutor, I have seen that
over and over and over again, where DMV
records are not correct, DMV records sometimes
skip suspensions and sometimes impose
suspensions without notification.
Indeed, in one case there was a
suspension for someone that did not pay a
2197
surcharge on a fine. And that surcharge was
never paid, the person did not know and was
driving with a suspended license. An
otherwise law-abiding citizen who did not know
there was a surcharge imposed on a fine for a
late payment and was driving with a suspended
license.
In those instances, I think what we
need to do is address the issue of the
reliability of the DMV records. Because that,
in effect, may be some of the hesitancy in
which the Assembly has not taken up this bill.
I believe this is a good bill, this is a good
measure, but we also have to make sure that we
can rely on the DMV records that we're looking
to impose here in this legislation.
That having been said, Mr.
President, I vote aye.
ACTING PRESIDENT MEIER: Senator
Gentile will be recorded in the affirmative.
Senator Onorato.
SENATOR ONORATO: Mr. President,
I too rise -- I'm certainly going to the vote
for the bill. I think Senator Marcellino did
a good deal of homework on it.
2198
And I would also like to offer my
cosponsorship as an incentive to get it passed
in the Assembly.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Onorato will be recorded in the affirmative.
Senator Hevesi.
SENATOR HEVESI: Thank you, Mr.
President. Just briefly, to explain my vote.
Again, I'm going to support this
bill, although I don't think it goes nearly
far enough. But the discourse was helpful.
I just wanted to reiterate the
comments of Senator Duane, who alluded to
something that I find very troubling. And
it's not the first time that this has
happened, where there are two bills on a
calendar that amend the same section of law in
a way that is fundamentally troubling or
potentially conflicting.
And I remember last session Senator
Padavan had a piece of legislation that
increased penalties for gambling offenses, and
there was a similar bill on the calendar that
day that amended the exact same section of law
2199
in a fundamentally different way. And similar
to Senator Marcellino, when questioned about
it, Senator Padavan didn't want to discuss the
way they were in conflict.
Which forced me to turn to the
attorneys that we have here and inquire as to
what would happen in the eventuality that both
bills passed both houses and became law. And
the answer was the legislation that was first
signed by the Governor would be the bill that
actually changed the law in the fundamental
way that was intended by that sponsor.
And so this is a real problem here.
And I'm sure Senator Balboni is going to
explain to us the merits of his legislation.
But from a cursory look at Calendar 92, it
seems to be in fundamental conflict with the
legislation we're voting on right now. Not in
a way that is going to prevent us likely from
voting yes on Senator Balboni's bill, but
certainly it raises questions.
So I find that troubling. And I
would just request that those who are
responsible for making the calendar and those
who are sitting on the committee that deals
2200
with these issues should have some better
communication with each other. Because the
purpose of everyone here, we're not trying to
nitpick, we're trying to make law in the best
way possible. And so if we're doing things
that conflict with each other, we're cutting
off our nose to spite our face.
So my suggestion will be that we
don't have this situation in the future and we
make sure by the time the calendar gets to the
floor that the bills are consistent and that
the bills do what they're designed to do, and
then we'll debate the merits of them and vote
accordingly.
But again on this bill, I support
it. It doesn't go nearly far enough, doesn't
address this issue at all. And if the
Assembly has a similar bill, they should pass
it immediately. Though I would not recommend
that the Assembly pass this bill, and instead
the Assembly should go ahead and pass a bill
that's much more stringent. And I may even
draft that legislation and offer it to Senator
Marcellino, because I may have trouble getting
it passed here.
2201
But the Assembly passing this
version to make it law, that will do
something, but it doesn't nearly go far
enough. And we're really not addressing the
problem here today. So I support this, with
the slew of reservations that I have
articulated, both in these comments and my
earlier comments.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Hevesi will be recorded in the affirmative.
The results having previously been
announced, the bill is passed.
The Secretary will continue to
read.
THE SECRETARY: Calendar Number
89, by Senator Seward, Senate Print 1575, an
act to amend the Insurance Law, in relation to
expanding the eligible groups for annuity
contracts.
SENATOR STACHOWSKI: Explanation.
ACTING PRESIDENT MEIER: Senator
Seward, an explanation has been requested of
Calendar 89 by Senator Stachowski.
SENATOR SEWARD: Certainly, Mr.
2202
President. This bill would amend the
Insurance Law to expand the eligible groups to
which group annuity contracts may be sold in
New York State.
Specifically, the bill would
authorize group annuity contracts to be sold
to membership associations, financial affinity
groups, and other groups with a common
enterprise or relationships that would be
approved by the Superintendent of Insurance.
Now, the changes that would occur
under this legislation are mere existing
statutes that provide for similar eligibility
standards for group life policies as well as
group accident and health policies which are
currently available to New Yorkers.
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: If the
Senator would yield for a couple of questions.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield for a question?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
2203
SENATOR STACHOWSKI: Would these
financially similar groups, would that be like
people with the same credit card? Or does it
have to be more specific and more tightly
bound than something like that?
SENATOR SEWARD: Yeah, the -
actually, Senator, through you, Mr. President,
the bill itself outlines the various groups
and I think defines financial affinity as, you
know, credit card holders of the same card,
through the same retailer. I mean, those kind
of affinity groups. Certainly credit card is
one.
SENATOR STACHOWSKI: If the
Senator would yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR STACHOWSKI: On a credit
card question, would that mean like everybody
with a certain's bank's credit card or
everybody with a Visa card or everybody with,
for example, a GM Visa card? And now I think
2204
they have everybody with a Yankee credit card.
You know, they have all these different kinds
of credit cards.
So I'm just trying to get a tighter
idea of what exactly that means.
SENATOR SEWARD: The answer is
yes.
SENATOR STACHOWSKI: All of those
groups?
SENATOR SEWARD: Well, people who
have same credit card would be considered part
of a group that has that financial affinity.
SENATOR STACHOWSKI: Thank you,
Senator.
ACTING PRESIDENT MEIER: Read the
last section.
Senator Dollinger.
SENATOR DOLLINGER: Would you
recognize Senator Duane, please. I'll yield
to Senator Duane.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: I'm sorry. I'm
wondering if the sponsor would yield.
ACTING PRESIDENT MEIER: Senator
2205
Seward, Senator Duane is wondering if you
would yield.
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MEIER: Senator
Seward yields.
SENATOR DUANE: Thank you. And I
apologize, I had just momentarily stepped
outside the chamber. So it's possible I'll go
over a brief area that had already gone over.
Why are the groups that are being
added to this legislation, why weren't they
included in the past? Do you know what the
history is of that?
SENATOR SEWARD: Well, Mr.
President, the time that the group life
policies were allowed under statute, as well
as the group accident and health policies -
in contracts, I should say -- were allowed
here in New York State goes back to the, you
know, the early 1980s.
And I -- upon looking at this
legislation, I raised the same question in my
mind. And as near as I can determine through
my research is that it simply was not sought
at that time, didn't seem to be an issue,
2206
nobody was asking. Group life contracts were
being sought, as well as the group accident
and health contracts were being sought, so
they were included in legislation at that
time.
So that is the answer.
SENATOR DUANE: Thank you.
Mr. President, would the sponsor
continue to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MEIER: Senator
Seward yields.
SENATOR DUANE: Thank you.
Now, the bill is specific relating
to associations eligible for a group annuity
contract. It permits the associations that
have a minimum of 200 covered members at the
contract's date of issue that have been active
for at least two years. Which strikes me as
being fairly specific, in a way.
So I'm wondering if the bill was
crafted to give -- I hesitate to use the word
"favoritism," but will -- is it more likely
2207
that some groups will use this more than
others? Is it more favorable to the situation
of certain groups?
SENATOR SEWARD: Well, Mr.
President, I can assure Senator Duane that
there is no intent here to favor one group or
another.
Where the 200 comes from simply is
for a couple of reasons. Number one, to
mirror exactly what is currently in the law
when it comes to group life contracts and the
accident and health contracts. And it seemed
appropriate to use the same criteria for the
group annuity contracts.
And also the number 200 is, I
think, a number which allows for the economies
of scale, shall we say, in terms of having a
size -- a group large enough so that the
economies of scale would enter into the
contracts to the benefit of those who sought
this type of product.
SENATOR DUANE: Thank you. Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
2208
Seward, do you continue to yield?
SENATOR SEWARD: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I have some
concerns about the vagueness of the
legislation in its relation to the
organizations eligible for group annuity
contracts. For instance, any issuer of a
credit card. And we know that lot of
different groups now issue credit cards;
colleges, you know, sport teams. You know,
various kinds of not-for-profits issue them.
Perhaps, you know, a brokerage house.
Was that the intention, to make it
that broad that really it would capture any
conceivable group?
SENATOR SEWARD: Well, Mr.
President, as I've stated, the language in
this legislation mirrors that of the group
life and accident and health contracts. And I
am aware of no problem whatsoever in those
contracts utilizing this language.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
2209
yield.
ACTING PRESIDENT MEIER: Does the
sponsor continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I mean, I feel as
if I should know this already, but I don't.
And I was wondering if the group or
association would have to apply first to the
Insurance Department.
SENATOR SEWARD: If the group
meets the criteria under the law, the only
relationship to the Department of Insurance
would come through the regulation on the part
of the company offering the group annuity.
Certainly the Insurance Department is involved
in oversight in that regard.
As well as the form of the policy
and the contract. All of that is preapproved
through the regulatory process, through the
entity that's offering the product.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
2210
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: He
yields.
SENATOR DUANE: I know that there
has to be some sort of dues to the
association. Is there a minimum amount of
dues that must be collected?
SENATOR SEWARD: No.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: Senator
Seward yields.
SENATOR DUANE: What about a
scenario when an association, say, is just
charging one cent or something, or five cents
as their dues as a way to sort of get around
it and get into the business? Is there a
remedy for that?
SENATOR SEWARD: Well, Mr.
President, if Senator Duane would refer to the
bill, there are several sets of criteria there
2211
defining the association, making sure that it
is not just a group of people coming together
simply for the purpose of purchasing a group
annuity.
And the matter of the amount of
dues charged is really just one of several
criteria that frankly I'm not interested in
micromanaging to that extent.
SENATOR DUANE: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Gentile.
SENATOR GENTILE: Mr. President,
if the sponsor would yield to a question or
two.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield to a question from
Senator Gentile?
SENATOR SEWARD: Yes, a question.
SENATOR GENTILE: No, a question
or two.
SENATOR SEWARD: Or two.
SENATOR GENTILE: Through you,
Mr. President. I'm just confused at this
point, based on questions put forth by Senator
2212
Stachowski and Senator Duane.
Are you saying, then, Senator, that
the New York Yankees can issue annuity
contracts because of the credit cards that
they have -- I suppose have issued?
SENATOR SEWARD: Well, the -- Mr.
President, the New York Yankees wouldn't be
issuing the group annuity or the credit card.
They -- if -- the company that actually issues
the credit card, if -- that would form this
financial affinity.
SENATOR GENTILE: Through you,
Mr. President, if the sponsor would continue
to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: So, Senator,
there would be a defined group of all holders
of New York Yankee credit cards that would
constitute this group that -- by which a
financial institution could qualify under this
section?
2213
SENATOR SEWARD: That's -- Mr.
President, that's a reasonable scenario.
SENATOR GENTILE: And
therefore -- through you, Mr. President, if
the sponsor would yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
SENATOR GENTILE: And
therefore -
ACTING PRESIDENT MEIER: Whoa,
whoa -
SENATOR GENTILE: He said yes.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: And therefore
this contract could be sold to the individuals
holding that credit card?
SENATOR SEWARD: That is correct.
SENATOR GENTILE: I'm sorry, you
said that is correct?
SENATOR SEWARD: That is correct.
2214
SENATOR GENTILE: Then if the
Senator would continue to yield, Mr.
President.
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GENTILE: That being the
case then, Senator, you seem in the
legislation to have a catch-all section, the
last section of the bill, where it said
despite all the regulations and conditions
previously stated, any group -- a contract can
be issued to any other group that is approved
by the Superintendent of Insurance if -- and
it gives some conditions. And one of them
would be -- one condition is that it would not
be contrary to the best interests of the
public.
I'm curious, Senator, what would be
an example of an interest that would not be in
the best interests of the public?
SENATOR SEWARD: Well, Mr.
President, as I stated earlier, that -- the
language to which the Senator refers has been
in the law covering the other types of group
2215
contracts. And it is merely language to
provide the Superintendent with some guidance
in terms of approving these so-called, you
know, discretionary groups that may wish to
purchase this group annuity product.
In terms of an example, you could
come up with some as well as I could. I mean,
it's -- if it's -- I guess the not being in
the best interests of the public is in the eye
of the beholder.
In this case, we provide that
authority to the Superintendent of Insurance
to make that judgment. And this language has
been in the law covering other contracts for
nearly twenty years now, and I am aware of
absolutely no problem with that language.
SENATOR GENTILE: Mr. President,
if the sponsor would continue to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes.
SENATOR GENTILE: I would assume,
Senator, though, that when that phrase was
drafted, whether now or twenty years ago,
there was some thought given to what might not
2216
be in the best interests of the public. And
certainly we're putting it in this
legislation. Is there any -- even a vague
notion of what might not be in the best
interests of the public, based on the language
in this bill?
SENATOR SEWARD: Mr. President, I
really haven't given that a lot of thought.
SENATOR GENTILE: Thank you,
Senator.
On the bill.
ACTING PRESIDENT MEIER: Senator
Gentile, on the bill.
SENATOR GENTILE: Certainly the
Senator puts forth a bill that I don't think
many of us have problems with, except the fact
that in this legislation we're essentially
giving the Superintendent of Insurance the
authority to decide what is in the best
interests of public.
I believe that the legislation as
written is vague in that regard. And in
questioning the sponsor, I believe that it
lays the basis for maybe reviewing this
legislation and indicating certain instances
2217
where we as a Legislature feel that certain
associations would not be in the best
interests of the public to issue -- to allow
annuity contracts to be issued.
So I believe in this case we are
abdicating the Legislature's responsibility
and handing it over to the Superintendent of
Insurance to have him or her decide on their
own what is in the best interests of the
public. I think that's our responsibility as
the Legislature. And although this bill -
certainly the Senator has indicated his
intentions on the bill, I think that's
something that we cannot too easily gloss
over.
So I would suggest, Senator, even
though I will vote in the affirmative here,
that maybe we take a look at that phrase and
not abdicate our responsibility in determining
what might be, at least in the broader sense,
might not be in the best interests of the
public. I think that's our responsibility,
not the responsibility of the Superintendent
of Insurance.
ACTING PRESIDENT MEIER: Senator
2218
Paterson.
SENATOR PATERSON: Mr. President,
I have a couple of questions for Senator
Seward if he is willing to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Senator, this
legislation is going to give groups the
opportunity to sponsor group annuity policies.
My question relates to the issuance of single
annuity policies. Would we need special
legislation to accomplish that? Is it
inclusive in this legislation? Or is there a
difference?
SENATOR SEWARD: Well, Mr.
President, the single annuity contracts are
marketable currently.
SENATOR PATERSON: They are? I'm
sorry, I didn't hear that.
SENATOR SEWARD: The single
annuity contracts are marketable currently.
2219
There's no need for new legislation to
accomplish that.
SENATOR PATERSON: So just for a
point of clarification, Mr. President.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield for a point of
clarification?
SENATOR SEWARD: Yes. Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: Then there's
no need even for these additional groups that
we're adding to be part of the legislation
where it comes to single annuity contracts,
because they're already covered? In other
words, they already have the authority to
issue them.
SENATOR SEWARD: Well, precisely.
I mean, there's no -- this legislation doesn't
deem with the single annuity contract.
SENATOR PATERSON: Okay. I have
one last question, if the Senator would yield.
ACTING PRESIDENT MEIER: Senator,
will you yield?
SENATOR SEWARD: Yes.
2220
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR PATERSON: I'm just a
little confused by the terms, and I thought if
you gave an example it might make it clear to
me.
Right now we have groups that have
what is considered a common interest,
associations with a common interest. That's
how it's defined in the law now. And you have
it where it's membership associations. Now,
there's a difference in the words. I just
wonder if there's a difference in the meaning.
SENATOR SEWARD: The difference
is, Senator, that as -- an example of an
association group could very well be the
members of AAA, the auto club. That would be
the only thing that they would have in common,
is being members of that -- of, let's say, of
a membership association such as that. That's
an example that comes to mind.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
on the bill.
2221
ACTING PRESIDENT MEIER: Senator
Paterson, on the bill.
SENATOR PATERSON: I was just
trying to distinguish, because I think this
legislation does address what really is a
changing marketplace, particularly in terms of
annuities and contracts and investments and so
forth.
But we do have a number of groups
now that are putting themselves in the
position where they are issuing these types of
credit cards and that type of thing. We have
athletic organizations issuing it. And I just
wanted to make sure that we still have some
understanding on the part of these groups
what's expected of them under the law. And
I'm satisfied that it does.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Gonzalez.
SENATOR GONZALEZ: Thank you, Mr.
President. Would the sponsor yield for a
question.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield for a question?
2222
SENATOR SEWARD: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GONZALEZ: Senator, this
bill kind of gives a trend to expand the
eligibility for financial institutions to get
into writing group annuity policies. My
question is the insurance companies that's
before us, as far as the Legislature, of them
being able to get into financial services.
Can you elaborate a little bit on that?
SENATOR SEWARD: Well, Mr.
President, that whole issue of the division
between the insurance companies and the banks
and financial institutions and the fact that
those walls between the two are crumbling
goes, that's being done at a much higher
level, through federal legislation and so on.
This legislation does not really
enter into that discussion or debate or that
issue. Because, Mr. President, the bank
itself would not be issuing the annuity. That
would be, you know, the financial entity
currently offering annuities to be able to,
2223
through the bank and their customers, would
provide the -- the group would be able to
market this group annuity contract.
ACTING PRESIDENT MEIER: Senator
Gonzalez.
SENATOR GONZALEZ: Would the
sponsor still yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR GONZALEZ: So is there
any way that the insurance companies, have
they applied or want the same kind of
application into being able to, in the
financial situations, whether they can
write -- they can get into the finances? Has
that come before us, before you?
SENATOR SEWARD: Mr. President,
that specific point has not, you know, come
before us. I would anticipate that if this
legislation became law that obviously New York
insurance companies that offer the annuity
contracts certainly would be doing so on a
2224
group basis, marketing to these groups.
SENATOR GONZALEZ: Mr. President,
on the bill.
ACTING PRESIDENT MEIER: Senator
Gonzalez, on the bill.
SENATOR GONZALEZ: I think that I
have concerns that, although I like groups to
have opportunity and to continue to expand,
but I also think that before us that everybody
wants to get into -- whether they want to get
into insurances and whether insurance wants to
get into financial situations. And I think
that that is before us, and there should be
some equitable parlay to how that's done.
And so that's one of my concerns,
Mr. President. And, you know, I will be
voting in the negative.
ACTING PRESIDENT MEIER: I'm
sorry, Senator Malcolm Smith.
SENATOR MALCOLM SMITH: That's
quite all right, Mr. President. Thank you.
Will the sponsor yield for a
question?
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
2225
SENATOR SEWARD: Yes, Mr.
President.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MALCOLM SMITH: Is
there -- and forgive me if the question is a
little naive. But is there any geographical
restriction to this particular piece of
legislation; i.e., a company incorporated
outside the state of New York doing business
within the state of New York?
SENATOR SEWARD: No.
SENATOR MALCOLM SMITH: And is
there -
ACTING PRESIDENT MEIER: Do you
wish the sponsor to continue to yield?
SENATOR MALCOLM SMITH: I'm
sorry, Mr. President. Would the sponsor
continue to yield?
ACTING PRESIDENT MEIER: Senator
Seward, do you continue to yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR MALCOLM SMITH: With
2226
regard to the Superintendent of Insurance, as
it relates to, I guess, him promulgating
regulations for these particular entities,
will the Superintendent of Insurance have the
ability to continue to offer new regulatory
procedures for this -- these particular
annuities?
SENATOR SEWARD: Certainly, Mr.
President, nothing in this legislation would
preclude that.
SENATOR MALCOLM SMITH: Mr.
President, no further questions. Just on the
bill.
ACTING PRESIDENT MEIER: Senator
Malcolm Smith, on the bill.
SENATOR MALCOLM SMITH: As an
observation, Mr. President, I am -- while I do
not oppose the legislation, there is one
concern that I do have. And that relates to
opening this particular market. Simply
because there is a new proliferation of
identity crime that is going on, and part of
it has to do with the market itself as it
relates to the issuing of credit cards and the
different entities that are doing so.
2227
I think by offering the opportunity
for different groups to get involved in this
particular area, what it does do is offer and
open up a potential for different particular
crime elements, such as the identity crime
market that is growing at a rapid rate.
I would hope that while this piece
of legislation I believe will pass, that that
is an area which we pay some close attention
to. And just as we use the foresight in sort
of preemptive strikes of different situations
that have come before us, I would hope that
this one in particular, while I believe it is
a fairly decent piece of legislation, I think
it does open up another market, and that is
the identity crime market, which I think is
growing at a rapid rate.
I just want us to be very careful
about that.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. If the Senator will yield
for a question.
ACTING PRESIDENT MEIER: Senator
2228
Seward, do you yield?
SENATOR SEWARD: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: Thank
you, Senator.
Through you, Mr. President, was it
your intent to exclude small businesses when
you wrote this legislation? If I'm correct,
the SBA's definition of a small business is a
50 employees or less.
SENATOR SEWARD: Mr. President,
in the other subsections of Section 4238 of
the Insurance Law, it does list -- I believe
there are nine groups currently that are
eligible to become involved with this group
annuity. And employers currently are among
that group. So we're certainly not precluding
them under this legislation.
SENATOR HASSELL-THOMPSON: If the
Senator would continue to yield.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Yes. Yes.
ACTING PRESIDENT MEIER: The
2229
sponsor yields.
SENATOR HASSELL-THOMPSON: That
doesn't answer my question in terms of small
businesses as employers. Small business is
defined by the SBA as 50 employees or less.
This has a minimum of 200 members in order to
qualify to become a part of this annuity.
SENATOR SEWARD: Mr. President,
the small businesses to which the Senator
refers are currently eligible to have these
group annuities so that -- for their
employees.
And so the 200 membership figure
does not pertain to them. It merely pertains
to the specific groups that are covered under
this legislation, as a means of defining and
setting parameters for these various new
groups that we are adding to the list of those
who are eligible to offer a group annuity
contract.
SENATOR HASSELL-THOMPSON: If the
Senator will yield for a final question.
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Certainly.
2230
Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HASSELL-THOMPSON: Thank
you. Through you, Mr. President.
Just to be very clear, then, by
putting this language in for new groups, is it
does not affect or preclude any existing group
that has a number that's less than?
SENATOR SEWARD: Mr. President,
the Senator is correct.
SENATOR HASSELL-THOMPSON: Thank
you. Thank you.
SENATOR HEVESI: Mr. President.
ACTING PRESIDENT MEIER: Senator
Hevesi.
SENATOR HEVESI: Will the sponsor
yield for one brief question?
ACTING PRESIDENT MEIER: Senator
Seward, do you yield?
SENATOR SEWARD: Certainly.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR HEVESI: Thank you, Mr.
President, just for clarity's sake. I was
2231
listening to Senator Hassell-Thompson's
comments, and if the sponsor would just
elaborate for me.
According to Senator
Hassell-Thompson, small business is defined as
50 employees or less. This legislation
enables annuity contracts for organizations in
excess of 200. What happens to organizations
who employ individuals between the number of
50 and 200? Are they eligible?
SENATOR SEWARD: Well, Mr.
President, I think we are talking about two
different situations and circumstances. The
employers of any size are currently eligible
to have group annuities marketed to them
and -- through them to any of their employees.
Employers of any size. The current law does
not distinguish between those under or any
number, for that matter.
This legislation, as we add
additional groups by talking about
associations, financial affinity groups, and
that type of definition, we are citing the 200
figure frankly to mirror what's existing law
when it comes to group life contracts and
2232
group accident and health contracts.
And I must say, that's been in the
statutes now for nearly twenty years. And as
I've said earlier, I am not aware of any
complaints or problems associated with the
definitions that we're using in this
legislation that are currently in the law.
SENATOR HEVESI: Thank you, Madam
President.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Senator Breslin,
to explain your vote.
SENATOR BRESLIN: Thank you,
Madam President.
I commend Senator Seward. With the
breakdown federally of the differences between
financial institutions, insurance and banking,
in order for insurance companies to remain
competitive in New York State, these
expansions are critically necessary.
And they're particularly necessary
as it relates to the other areas of banks and
2233
financial institutions as well as competition
from without the state.
So for those reasons, I vote in the
affirmative.
THE PRESIDENT: I'm going to call
the roll.
And Senator Paterson, to explain
your vote.
SENATOR PATERSON: Yes, Madam
President.
As Senator Seward is keenly aware,
the federal government has addressed this
issue as well, with the Gramm-Leach-Bliley
legislation that really is expanding the
marketplace and basically says that a lot of
those institutions are not separate, they're
pretty much doing the same work and they're
having access to some of the variables of
business that were not applicable earlier.
And this legislation basically furthers that.
I just had a little question about
the classification of what a member
association is as compared with an association
of common interest. I think that's really
negligible when it comes to the expansion that
2234
can be created in this legislation.
So I vote in the affirmative.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 57.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
92, by Senator Balboni, Senate Print 860, an
act to amend the Vehicle and Traffic Law, in
relation to aggravated unlicensed operation.
SENATOR LACHMAN: Explanation.
THE PRESIDENT: Senator Balboni,
an explanation has been requested.
SENATOR BALBONI: Yes, thank you,
Madam President.
This particular measure would seek
to amend Section 511(1)(a) of the Vehicle and
Traffic Law as it relates to the ability of
the prosecutor to prove that the violator had
intent that their license was in fact
2235
suspended at the time in which they are
brought before the judge.
This has passed this house
previously, unanimously. And last year I
think there was one no vote.
Thank you, Madam President.
THE PRESIDENT: Senator Lachman.
SENATOR LACHMAN: Yes, will the
Senator from Long Island yield to a question
or two.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, Madam
President.
SENATOR LACHMAN: Though I admit
there are differences between your bill and
Senator Marcellino's bill, and both are good
bills, there are also nuances of similarity.
Would you consider amending the three-year to
two-year term now or in the future?
SENATOR BALBONI: What three-year
or two-year term?
SENATOR LACHMAN: Well, since
Senator Marcellino's bill speaks about -
SENATOR BALBONI: I'm sorry, I'm
2236
unfamiliar with Senator Marcellino's bill.
SENATOR LACHMAN: -- speaks about
three events over a period of time.
SENATOR BALBONI: I'm sorry, I'm
unfamiliar.
SENATOR LACHMAN: Senator
Marcellino's bill speaks about revocation or
suspension of one's license. But there would
have to be -- he's cutting it down from three
suspensions to two suspensions.
SENATOR BALBONI: I don't know,
what do you think? How did you vote last
time?
SENATOR LACHMAN: I voted in
favor of it.
SENATOR BALBONI: I think I did
too. So why don't we go -- well, I guess -
SENATOR LACHMAN: Well, the
question is why should one have three
suspensions and revocations and the other one
two.
SENATOR BALBONI: I'm not
following you.
SENATOR LACHMAN: The basis of
your bill is, if I read it correctly, that it
2237
does not come into focus unless there are
three suspensions or revocations.
SENATOR BALBONI: I think we're
in a different place here. Madam President,
through you.
Senator, my bill relates to the
requirement of the mens rea; that is, that the
individual make an allocution or an
acknowledgment or that the prosecution is able
to prove that at the time the individual was
pulled over and stopped, that the individual
was operating a motor vehicle on a public
highway while their license was in fact
suspended.
I would direct -- for more
information on this, I would direct you to the
commentaries located in the McKinney's,
Section 511, which details the difficulty that
a prosecutor has when trying to prove that an
individual in fact knew that their license was
suspended.
With the two or three or four or
five, all that is is a demarcation when it
should be reasonable to shift the burden of
proving that the individual received the
2238
notice and make it a rebuttable presumption
from an evidentiary standpoint for the
purposes of prosecution on the violator.
And as you know -- and I refer you
to McCormick on evidence. It talks about this
very appropriate shift when the individual has
information that is in their possession and
their possession only. I think that these -
that's where the bill is going.
And so whatever the other bill was
referring to, my bill refers to the
prosecutor's burden of proof and how they
actually reach the ability to prosecute.
I hope that is of some help to your
question.
SENATOR LACHMAN: Madam
President, on this issue and another issue, if
the Senator would yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: I'm not an
attorney, Senator Balboni. I can quote trivia
from history, but not legal precedent. And I
2239
respect your knowledge of the law.
But since the basis of Senator
Marcellino's bill has been changed from three
to two suspensions before the trigger goes
into effect, you're saying you would still
maintain the three suspensions or revocations?
SENATOR BALBONI: Senator, I
think we're mixing apples and oranges. I
believe, as you've described it, Senator
Marcellino's particular measure refers to a
penalty phase or the crime in which someone
could be charged against, predicated upon the
number of times of violation.
My bill refers to unlicensed -- I'm
sorry, aggravated unlicensed driving in the
first degree, and therefore only talks about
the ability to prove that element of the
offense as it relates to the individual's
knowledge that their license was revoked or
suspended.
SENATOR LACHMAN: Will the
sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
2240
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: Okay, on your
bill, Senator Balboni, there is no mention
here of the knowledge of the police in the
county to these revocations or suspensions.
In response to a question that Senator
Marcellino was asked, he said he guessed that
the police as well as the Department of Motor
Vehicles are aware of these suspensions. And
we have been told by our learned counsel that
is not necessarily the fact.
If it is not necessarily the fact,
then how will this bill be implemented without
checking with Albany first?
SENATOR BALBONI: I'm sorry, and
your question is? Do I disagree or agree with
Senator Marcellino's statement?
SENATOR LACHMAN: No, do you -
do the police actually have a record of these
suspensions and revocations of license?
SENATOR BALBONI: No, they don't.
SENATOR LACHMAN: Pardon?
SENATOR BALBONI: No, they do
not.
SENATOR LACHMAN: All right.
2241
Would it therefore not be a better bill if the
police were included in here? Because if the
police were not included in here, how in the
world would they know unless they checked with
Albany, which would take several days or a
week?
SENATOR BALBONI: Senator, in
response to your question, that would be an
appropriate inquiry should we not have the age
of computers. The police are not authorized
to maintain a separate database in regard to
DMV suspensions or revocations. That is
maintained by the Department of Motor
Vehicles. That is easily accessible from the
patrol car. Well, it's -- I shouldn't speak
for every police department in the state, but
I assume everybody has access to DMV records.
SENATOR LACHMAN: So every patrol
car would have access to this?
SENATOR BALBONI: You could call
the station -
SENATOR LACHMAN: Not in my
district in Brooklyn.
SENATOR BALBONI: You can call
the station on the radio, you can ask them to
2242
do a check. You can check right there.
You know, there -- these -- the -
I'm trying to find the exact reference,
Senator. I believe -- I believe it's in the
case of People versus Parsons, out of Monroe,
where they talk about the procedure by which
the police follow and whether or not the DMV
records constitutes a hearsay statement and
whether or not it falls under the business
record exception and the accessibility and
reliability of the DMV records.
You would be accurate to question
the veracity or the ability to maintain
accurate records that reflect the current
status of a particular driver in the State of
New York. That's a valid concern of any major
municipality. However, that is precisely why
the number of times that I have chosen to make
this effective is three as opposed to two or
one.
And remember, to further -
SENATOR LACHMAN: So what you're
saying is you're giving the driver the benefit
of the doubt until this is checked.
SENATOR BALBONI: That's correct.
2243
Well, no, I'm giving the driver the benefit of
the doubt that there may be facts and
circumstances that don't always line up in the
same way -- that they may live in different
addresses, they may not actually have gotten
notice, the records of the DMV may not have
been updated in a particular instance.
But these are things that -- would
I give -- you know what I'd do? I'd give a -
SENATOR LACHMAN: But wouldn't it
be easier if the police received this -
THE PRESIDENT: Senator Balboni
has the floor.
You may proceed, Senator Balboni.
SENATOR BALBONI: Senator
Lachman.
SENATOR LACHMAN: Wouldn't it be
easier if the police have this information,
rather than -
SENATOR BALBONI: No.
THE PRESIDENT: Gentlemen, as I
said, Senator Balboni has the floor.
SENATOR BALBONI: Thank you,
Madam President.
THE PRESIDENT: If you would like
2244
to yield, if you'd like to let me know,
Senator, I'll give Senator Lachman the floor.
SENATOR BALBONI: Thank you,
Madam President. On the bill.
THE PRESIDENT: Do you yield,
Senator Balboni?
SENATOR BALBONI: No, I don't.
I'm making a comment now.
THE PRESIDENT: All right. You
may proceed, then.
SENATOR BALBONI: Thank you.
The police have no business keeping
the records, and there's no reason that can be
articulated as to why they would have a better
job of keeping records than the DMV. I mean,
DMV is authorized, we fund them, they maintain
the database. There would be no practical
effect that would inure to the benefit of a
driver or a law enforcement officer of
transferring the responsibility of maintaining
the records or having the database within the
police department.
SENATOR LACHMAN: Through you,
Madam Chair, to Senator Balboni. I happen to
differ with him in his answer to the last
2245
question. But I have one question further to
ask him, with his permission.
THE PRESIDENT: Senator Balboni,
do you yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: You may proceed,
Senator Lachman.
SENATOR LACHMAN: What are the
other outcomes for a motorist being stopped
for AOU? Does the motorist get a ticket?
Does the motorist get arrested on the spot?
Will the vehicle be towed? Or is this
dependent upon local police authority, who
might not have the necessary information at
the time this occurs?
SENATOR BALBONI: I would refer
you to Section 511 of McKinney's, page 364. I
will quote. This is the commentary, and the
commentary is provided by Joseph Terriari
[ph]. "The reality of the situation is that
when a police officer stops the operator of a
motor vehicle for a traffic infraction, the
police officer either calls into his police
headquarters for a computer check of the
2246
operator's license or, where available, may
check the operator's record of conviction by
using the computer located in the police car.
In either event, the police officer will
ascertain, either from a desk sergeant or
other police official or from the computer
check, if the defendant's privilege of
operating a motor vehicle in the state of
New York has been suspended. It should be
noted that it has been held that a police
officer who conducted a computer check and
determined that the driving privilege of the
owner of a motor vehicle has been suspended
provided a factual basis for a legal stop of
the vehicle and was based upon reasonable
suspicion. People v. Selebis [ph]."
SENATOR LACHMAN: Madam Chair, if
Senator Balboni will accept another question.
THE PRESIDENT: Senator, do you
yield for a question?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed.
SENATOR LACHMAN: Senator
Balboni, that would respond to my second
question and not my third question, or my last
2247
question. What you're saying basically is if
the police -- or McKinney's is saying if the
polices have this data, then they would know
what to do.
But what will they do? What will
be the penalty to the individual driver? Will
his car be towed? Will he be arrested on the
spot? Will he receive a revocation again of
the license? That you haven't responded to.
SENATOR BALBONI: Madam
President, through you, that's because there
is no response. Anybody in this chamber has
as much information as I would about that. It
depends upon the circumstances.
We're not into the hypothetical
here, but if there was a driving while
intoxicated, it could be an immediate arrest.
In fact, the President, the -- Madam President
would probably know a lot more about this
situation than I certainly do, having been a
judge of the Supreme Court.
SENATOR LACHMAN: I thought you
meant the President of the United States, but
I'll accept Madam President as well. Go
ahead.
2248
SENATOR BALBONI: And therefore,
you know, I -- if after the debate we wish to
get the real facts, then perhaps we can sit
down with the Lieutenant Governor and we can
get her take on this.
But it would depend upon the facts
of the situation that presents to the police
officer. As it does with every stop. If
there is a threat to public safety, I would
assume and I would expect that there would be
an immediate arrest. If there was no public
safety problem, they could issue an appearance
ticket. They could stop the individual until
a further check is done. They could
administer a Breathalyzer.
There is a whole host of different
steps that a police officer can and should
take, depending on what situation is presented
to him or her.
SENATOR LACHMAN: Madam Chair, on
the bill.
THE PRESIDENT: As President, not
chair, I will give you time and the floor to
speak on the bill, Senator Lachman.
SENATOR LACHMAN: In my eyes
2249
you're both the President and the chair, and a
very effective one. Thank you.
As is Senator Balboni a very
effective Senator, even though all my
questions have not been totally answered. I
look upon this somewhat as an imperfect bill,
as much legislation we vote upon is imperfect.
However, I will vote for the bill. But I
would like to know the answers to some of the
questions I have raised.
And as the members of the chamber
realize, I seldom take this amount of time to
raise questions and expect answers. The final
question has not really been answered. And we
hope in the future we can discuss this with
you, Senator Balboni, and others, and perhaps
have another bill that focuses on the answers.
Thank you, Madam President and
chair.
THE PRESIDENT: Thank you,
Senator.
Senator Paterson.
SENATOR PATERSON: Madam
President, if Senator Balboni would yield for
a question.
2250
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, to
clarify, would it be fair to say that there's
a general understanding that when a person is
stopped for operating a vehicle at a time that
they are unlicensed that if there isn't a
significant public danger exacerbated by
intoxication or something, there probably
would be an issuance of a ticket or summons
and at the same time the individual would not
be allowed to operate that vehicle anymore?
That would be the general conclusion of a
situation.
SENATOR BALBONI: Senator
Paterson, I'm -- I'm sorry, Madam President,
through you. Senator Paterson, I'm
ill-equipped to comment as to what the
possible actions of a police officer are in
this state.
SENATOR PATERSON: Okay. Thank
you, Senator.
Madam President, if the Senator
2251
would continue to yield.
THE PRESIDENT: Senator, do you
continue to yield?
SENATOR BALBONI: Yes, I do,
Madam President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR PATERSON: In the
memorandum that explains this piece of
legislation, you say that its purpose is to
stop the flagrant operation of vehicles by
people that are unlicensed. What is a
flagrant operation of a vehicle?
In other words, do you mean that
they are openly and notoriously driving around
without a license, in a sense almost scoffing
at the way the law is?
SENATOR BALBONI: Madam
President, through you, I am pleased to
respond to the gentleman's question, because I
actually have some information that might be
relevant to the members of this chamber.
This is a very serious issue.
That's why this bill has had the tremendous
support it has had in the last two years.
2252
This issue came to a head in 1993, as a result
of a ridiculous number of fatal accidents.
And I say ridiculous because the number of
people who were driving unlicensed or with
suspended licenses correlated in such a way as
to defy logic with fatal accidents. Allow me
to give you a couple of examples, Senator.
May 3, 1994, in Howard Beach,
Queens, a family of three was killed by a
driver with a license that was suspended 28
times. In Staten Island, on September 28,
1998, a Staten Island man was killed while
riding with a driver who had a license
suspended eight times. On July 9, 1994, an
18-month-old girl from the Bronx was killed by
a driver who had four suspensions on his
license. July 9 of 1994, a 6-year-old boy in
the Bronx was struck by a driver who had his
license suspended nine times. On July 14,
1994, a 66-year-old woman from the Bronx was
struck and killed by a driver who had his
license suspended six times. And on April 13
of 1992, a 26-year-old woman and her
4-year-old daughter were killed in East
New York by a driver who had three suspensions
2253
on their license.
When I say flagrant, perhaps
flagrant is not the right word. The fact is
that there seems to be some unexplainable
correlation between an individual who would
take to the streets with a suspended license,
or without a license at all, and fatalities,
pedestrian fatalities.
This is an attempt to respond to
that tragedy, which is ongoing. And what
we're trying to do here is give prosecutors an
easier way of proving that someone is in fact
driving knowing that they have a suspended
license.
In all the cases I read to you, if
my bill were law, that individual who caused
those fatalities in the Senate districts among
this house may not have been able to have been
driving. That's the reality of this piece of
legislation.
SENATOR PATERSON: Madam
President, on the bill.
I think that Senator Balboni
referred to one instance that I remember just
from hearing about it in the media, that
2254
actually one of the victims in the car
accident in Staten Island was a police
officer. And that just furthers the
contention that Senator Balboni is making
about how severe the operation of an
unlicensed vehicle is.
If the Senator would yield for a
question.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I would
Madam President.
THE PRESIDENT: Go ahead,
Senator.
SENATOR PATERSON: Senator, the
reason I asked you the question is that I
wondered if the legislation, the lack of which
does lead to these rather severe and tragic
circumstances, but that the legislation itself
speaks to, as you said before, the mens rea of
the operator, and that actually we're talking
about the presumption of what the operator
should know or should have known.
And my question is, is the
presumption really rebuttable? Is there any
2255
information that the operator can demonstrate
that they did not know that their license was
suspended or anything that rebuts the
presumption carried in this legislation?
SENATOR BALBONI: Through you,
Madam President. I have never worked in a
district attorney's office, but I've spoken to
about four or five different prosecutors on
this very point. And there's two perspectives
that should be considered.
First is the general evidentiary
consideration that is throughout all of the
texts that says it is an appropriate burden to
be placed upon an individual who has
information that nobody else has to bring that
information forth to establish a point in law.
That's the basic foundation of burdens of
proof.
The individual says that they have
not received notice of the suspension. The
prosecutor is unable to truly prove that. And
remember the burden under which the prosecutor
operates. They must prove it by beyond a
reasonable doubt. Not by preponderance, but
beyond a reasonable doubt, the hardest level
2256
of proof that we have in our judicial system,
our justice system.
What we do here is we shift the
burden after three times to the individual.
After three times, Senator. Not after the
first time, not after the second time, three
times. And we say: Prove it. Show us an
affidavit that says you were living someplace
else. Show us another affidavit where you
swear that you reviewed your mail and you
never received it. Show us an affidavit that
says you haven't been living in the state for
a period of time.
And now you know what happens after
you bring proof. The burden now comes back -
SENATOR PATERSON: Right.
SENATOR BALBONI: -- to the
prosecutor, who now must prove that your
affidavit is false.
Now put yourself in the
prosecutor's shoes. And remember what we're
trying to do here. We're trying to prevent
people who've had three or more suspensions
from operating a vehicle. I mean, the proof
is in the stories that I've read to you.
2257
Do you know in 1993 they did a
study of the number of individuals who were
arrested for unlicensed operation? It was
8200 people in 1993, statewide. Think of that
for a second. 8200 people operating a car
with either a suspended license or a revoked
license. You know, it's -- at that
proportion, I would argue that's an epidemic.
So what we're trying to do here is
we're trying to allow the prosecutor to
perhaps place some of the responsibility for
proving what happened upon the defendant. Let
them say what they were doing and why they
didn't respond, after the third time.
SENATOR PATERSON: Madam
President, on the bill. If the Senator would
continue to yield.
THE PRESIDENT: You may proceed
on the bill, Senator.
SENATOR PATERSON: I have not
been as aware until today of the interest that
the District Attorneys Association has had in
this problem. We've heard on two separate
pieces of legislation, two different ideas
that the association has to try to remedy this
2258
problem. We have a third area that came up in
the discussion that was never actually
addressed in any of the legislation today but
seems to be even more flagrant than the
attempts by Senators Marcellino and Senator
Balboni in this particular bill to address.
If Senator Balboni would yield for
a question.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
SENATOR PATERSON: It would be
proper, then, to summarize by saying that as
it stands now, the burden of proof on the
district attorney is really to prove a
negative; in other words, to prove -
SENATOR BALBONI: That you did
not receive it, that is correct.
SENATOR PATERSON: Right, okay.
SENATOR BALBONI: In fact, if I
may, Madam President, through you, there is a
presumption that once something is mailed,
it's presumed to have been received.
SENATOR PATERSON: Right. And,
Madam President, moreover, that if something
2259
is mailed, you somehow have to prove that it
was received when the defendant says it
wasn't, and it's as easy as the defendant
throwing it out. The fact that it doesn't
exist creates reasonable doubt. Is that
correct, Senator?
SENATOR BALBONI: Yes.
SENATOR PATERSON: Thank you.
A final question for Senator
Balboni, if he is willing to yield.
SENATOR BALBONI: Yes, Madam
President.
SENATOR PATERSON: Then, Senator,
I guess my last question, relating again to
burden of proof, is just simply if we switch
this burden, as you would like -- and I think
I will vote for it; I agree with you -- then
is there anything left to those cases where
the defendant honestly did not know the
license was suspended? How does that
defendant overcome the burden of proof?
If you can answer that question, I
think we'll be perfectly fine.
SENATOR BALBONI: Well, I can
answer that -- Madam President, through you, I
2260
can answer that by saying to you that we've -
we can't anticipate every defense, we can't
anticipate every factual situation, we can't
anticipate the response of the defendant.
However, we -- if you're voting for
this measure, you're making a decision. And
the public policy decision is that we're going
to provide a rebuttable presumption, as
opposed to strict liability.
That's the other way we could have
done this. We could have enacted a statute
that says upon the third suspension you are
not presumed, you are in fact liable. We have
chosen not to do that route even in the -
against the backdrop of these tragic
circumstances, because we're trying to prevent
a miscarriage of justice.
Would we be able to have everything
so that it will guarantee all of this? No.
But again, public policy always has a portion
that is based upon common sense. Through all
the lawyer rigmarole, it always comes down to
what is reasonable. And that is often the
standard under the law.
It is my belief that -- and if you
2261
vote for the bill and support this measure,
you will join me in that belief -- that three
suspensions is a reasonable point in time in
which to say you're responsible.
THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Actually,
Madam President, if Senator Balboni would
yield for one more question.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, Madam
President.
THE PRESIDENT: You may proceed.
SENATOR PATERSON: Senator, you
may not be familiar with a piece of
legislation that came before us today, but I
would assume -- and I just wanted to ask you
about this -- that if we lowered the number of
events that occur to two, that that would
still basically meet the threshold of
switching the burden of proof to the
defendant.
SENATOR BALBONI: I'm sorry,
Senator, I don't understand your question.
SENATOR PATERSON: In other
2262
words, if we lower the number of times that a
person is stopped to two rather than three,
you don't have any problem, that doesn't
change your desire to still pass this
legislation and transfer the burden of proof
to the defendant, does it?
SENATOR BALBONI: As I said in
response to Senator Lachman's question, it's
two different issues. One is a trigger as to
what you could be charged with. Another is
what you could be deemed to have knowledge of.
It's two separate pieces of the law.
SENATOR PATERSON: Madam
President, I'm aware that it's two separate
pieces of the law.
I'm just saying that if it became
one piece of the law -- in other words, I
would assume that the reason that you used
three instances is because that's what the law
is today. And I'm just saying to you if the
law changed -
SENATOR BALBONI: No, I'm sorry,
Senator, let me stop you. That's not the
reason why I chose that.
My choosing of three is
2263
independent. It has nothing to do with the
fact that it's three for aggravated, for
the -- for two. It has nothing to do with
that. And it's my belief that if you were to
change, it would have no impact.
SENATOR PATERSON: Okay. All
right, Madam President, I'll accept that.
And on the bill, it's interesting,
the reason that I was questioning Senator
Balboni is because I wanted to make sure that
there was a rebuttable presumption. Because
the way I read his legislation, it sounded
like an irrebuttable presumption. It really
did sound to me like there wasn't any evidence
that the defendant could produce that would
influence the court that there wasn't proper
service.
But the more Senator Balboni
illustrated the ridiculousness of the
situation, one that he termed an epidemic,
8200 people operating vehicles with licenses
that were either suspended or revoked, and the
tragic consequences therein -- which is the
reason that the licenses were removed from the
operator for some period of time in the first
2264
place -- almost persuades me that a strict
liability standard is actually the standard we
should actually use.
Perhaps I'm just reacting to
hearing those dramatic instances and
illustrations of death and injury caused by
people who knew that their license was
suspended or revoked and went out and just
operated a vehicle anyway, as if it was
something that couldn't have serious
consequences.
So assuming that Senator Balboni
wrote the legislation at a time when he could
be more reasonable than perhaps I can be at
this moment, I'll support the legislation as
it stands now and make it a rebuttable
presumption.
SENATOR HEVESI: Madam President.
THE PRESIDENT: Senator Hevesi.
SENATOR HEVESI: Would the
sponsor yield, Madam President?
THE PRESIDENT: Does the sponsor
yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed,
2265
Senator Hevesi.
SENATOR HEVESI: Thank you.
Senator Balboni, I believe I fully
understand what you're intending to do here,
and I think it's certainly worthy. I just
have a question for you as to -- well, let me
lay out the situation.
An individual is driving, he has
his license suspended one time. Presumably he
may not have been notified. Okay? The next
time he drives with a suspended license, he by
definition knows he was driving with a
suspended license. He was pulled over, an
officer indicated that he was driving with a
suspended license, and so he's notified then.
So why is it three in your bill
instead of two?
SENATOR BALBONI: Madam
President, through you. Senator Hevesi, would
you -- to fill out your fact pattern, would
you tell me how the license was suspended in
the first place?
SENATOR HEVESI: How was the
license suspended?
SENATOR BALBONI: How was the
2266
license suspended.
SENATOR HEVESI: For whatever
offense, additional offense the individual
committed.
SENATOR BALBONI: Well, you -
sorry. Madam President, through you.
Senator, you're of course aware that there are
a number of ways that you can have your
license suspended. One of the ways in which
you can have your license suspended is you
miss a court date. In other words, you
fail -- you get a speeding ticket, you don't
show up in court.
Now, you may not have gotten the
notice. You know you were speeding, you know
you got stopped, but you don't know when the
date is, so you don't show up in court. Your
license is suspended automatically.
Now, at that point in time, they
may have absolutely no notice that their
license is suspended. And now, if there's a
problem in notifying the individual, the same
as it was about the original court date -
let's say they moved and the mail is not
forwarded. Now you get to the second case.
2267
You may not know on the second circumstance
that you're not driving.
However, the law of probabilities
suggests, again in a background of
reasonableness, that upon the three, you're
going to know. They're going to catch up to
you. And if you don't know, then what my bill
says is you get a rebuttable presumption to
prove that you have in fact been moving around
and the mail has not been forwarded to you or
someone else has taken the mail or there's
been a problem in delivery.
SENATOR HEVESI: Madam President,
will the sponsor continue to yield.
SENATOR BALBONI: Yes. Yes, I
do, Madam President. Thank you.
THE PRESIDENT: Senator, you may
proceed.
SENATOR HEVESI: Senator Balboni,
I fully understand that on the initial
suspension the individual may have had his
license suspended for failure to pay a fine or
what have you, and therefore may not have been
notified.
But, you know, we've used the
2268
terminology here had their license suspended
seven times. That's not actually accurate.
It's just that you were -- you had an
additional offense where you were caught after
the first time driving without a license.
Isn't that accurate?
SENATOR BALBONI: No, it depends
upon the -- Madam President, through you, it
depends upon the circumstances. Circumstances
are as varied as the people who get stopped.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
SENATOR BALBONI: Yes, I do.
THE PRESIDENT: Go ahead,
Senator.
SENATOR HEVESI: Thank you.
Through you, Madam President, I understand how
the first time an individual gets an
aggravated unlicensed operation. Okay? I
understand that, without -- I'm sorry, the
license is suspended the first time.
The first time they are charged
with aggravated unlicensed operation is while
they're driving their vehicle; isn't that
correct?
2269
SENATOR BALBONI: That's correct.
SENATOR HEVESI: Okay. Madam
President, would the sponsor continue to
yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes.
THE PRESIDENT: You may proceed.
SENATOR HEVESI: Is there any
circumstance where an individual can get an
aggravated unlicensed operation without having
driven their vehicle?
SENATOR BALBONI: No.
SENATOR HEVESI: Thank you.
Madam President, would the sponsor continue to
yield?
THE PRESIDENT: Senator, do you
yield? Senator Balboni, do you yield?
SENATOR BALBONI: Yes, Madam
President, I'm sorry.
THE PRESIDENT: That's all right.
You may proceed.
SENATOR BALBONI: I'm
concentrating on his questions.
SENATOR HEVESI: Thank you.
2270
Madam President, through you. So I
don't understand how the first time that an
individual is stopped and is notified after
the police run a check that he is driving with
a suspended license that that individual
doesn't now have the knowledge that he's
driving with a suspended license.
And if that's true, then I don't
know why we have to do three times before the
individual knows. Why can't we do it on the
second or actually on the first?
Because as we're talking through
this, your situation where the individual's
license was suspended, that happened. But the
first time you get a charge of aggravated
unlicensed operation, you can only get it
while you're driving. And so you're notified
that very first time that your license was
suspended. So I don't know why we have to do
three, I don't know why we have to do two, I
think we could do one.
SENATOR BALBONI: Madam
President, in order to respond to the
gentleman, I believe I understand what your -
I don't want to use the word "confusion," but
2271
your lack of understanding on this particular
point.
And by the way, Senator Hevesi,
this is kind of a fine point of law. And if
you don't do this stuff in the Vehicle and
Traffic Law every day, it's not that easy to
understand. I certainly have had a ton of
problems with it, and I actually have done
practice in this area.
As a predicate for being charged
with aggravated unlicensed operation, you need
to be stopped. But your suspensions can be
multiple prior to the time that you're
stopped. Senator Sampson is shaking his head,
and so is Senator Hassell-Thompson. So I know
I'm right.
(Laughter.)
SENATOR BALBONI: This is a -
don't just sit there, help me with this.
What we have here is that -- you
know, I can give you circumstances right now.
You have a traffic ticket, a speeding ticket,
you miss the court date. The day you miss the
court date, you're stopped for suspicion of
DWI. You refuse the Breathalyzer. Well,
2272
you're suspended on the date you failed to
make it, you're suspended on the mere refusal,
which is in Section 511, it's 511(2)(i)(i).
And then you take another one in that area, a
mandatory surcharge pending a prosecution of
violation of Section 1192.
Three suspensions, boom, right
there. Now you're caught. Now we're saying
that person, if they're stopped, they should
know that they're in a heap of trouble and
they should get themselves to court, that
that's reasonable.
But you see the truncated time
period that that can occur in? And that's why
we give some leeway.
The other comment is a political
comment. I am thrilled to hear Senator
Paterson say that he'd like to adopt a strict
liability standard. That's terrific. I am
thrilled that you don't want to go to three.
You think one is enough, why give them three.
Folks, let's join a chorus and
direct it down the hall, because we can't even
get this bill on an agenda. I'm not saying
get it to the floor, I'm saying on an agenda.
2273
So the Assembly of the State of New York has
absolutely no interest in affecting this area
of law.
And so what -- the reason why I've
done this is I've tried to reach a reasonable
approach that is predicated upon fairness.
You may want to go more conservative. Fine.
Senator Paterson might want to be more
conservative. Terrific. My suggestion is
that we all take this support, put it into
this particular bill, and then work on the
Assembly to get them to at least have a
hearing on this, bring it to the floor and
debate it.
Because I don't want to sound too
dramatic, but people are dying. This is not a
frivolous measure. This is something that
deserves our attention.
SENATOR HEVESI: Madam President,
would the sponsor continue to yield.
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, I would.
SENATOR HEVESI: Thank you.
Through you, Madam President, I believe we all
2274
share the concerns expressed here, and in the
debate on Senator Marcellino's bill before.
And I understand your explanation.
My question to you is, in light of
what you have just elaborated, why don't we
provide prosecutors with the tool that you are
talking about by saying that if you've been
convicted once of aggravated unlicensed
operation, that that should be sufficient that
you knew your license was suspended? Why not
go that approach, and that way we'd eliminate
all the questions here in terms of your time
frame and suspensions from different offenses.
Wouldn't that achieve what you're looking to
achieve?
SENATOR BALBONI: Well, Madam
President, through you. That also -- and,
Senator, I think you're presuming or perhaps
not taking into account that there is a period
of time between arrest and trial, sometimes a
year. I know it sounds like a long period of
time, but that can happen in terms of
adjournments, court congestion. You might not
actually get to a conviction.
Now, there's a period of time in
2275
which you may continue to have violations.
That's where this would kick in. That's what
I really want to focus on. That's what the
relevance of this section is.
And the other thing is this. I
don't do this for a living. But the men and
women who do tell me that this is a good idea,
that this is a fair idea. And you know what?
AAA thinks it's a great idea too. I've got a
memo in support. They said go with the bill.
So again, the folks who are experts
in this area think this is a good, balanced
approach.
SENATOR HEVESI: Thank you.
Madam President, will the sponsor
continue to yield?
THE PRESIDENT: Senator, do you
yield?
SENATOR BALBONI: Yes, Madam
President.
SENATOR HEVESI: Senator Balboni,
right now prosecutors who don't have this tool
that you are proposing to provide to them, are
you suggesting that with great frequency they
are not prosecuting because they are unable to
2276
make the case, and as a result they are not
deterring individuals from driving without
valid licenses?
And the reason I ask that, Senator
Balboni -- why don't I not be coy about
this -- you suggested that the lack of this
legislation was related to the number of
deaths. And my question to you is, if the
individuals who you discussed before who had
been involved in fatal accidents had nine
revocations -- you know, a whole slew of
revocations -- doesn't that indicate, in some
fashion, aren't we assuming that some of those
were convictions for aggravated unlicensed
operation, and so we got the conviction?
And so it's not the fact that
prosecutors don't have the tools, but it's the
fact that the law is exceedingly lenient on
individuals who are convicted of these
offenses.
SENATOR BALBONI: Not, Senator -
I'm sorry, Madam President, through you. Not
according, again, to the commentary provided
in the McKinney's section.
This details the fact that as a
2277
result of this far heavier burden of having to
prove that someone else had knowledge, without
their admission that they had knowledge, and
prove that by beyond a reasonable doubt,
prosecutors are pleading these cases down
every day.
That is the reality of the
practitioner in these courts. You go in and
you don't get a conviction on unlicensed
aggravated operation. What you get is a plea
bargain. Because the prosecutor doesn't want
to have to try to leap the hurdle associated
with getting a defendant to admit that they
knew they were driving with a suspended
license.
SENATOR HEVESI: Okay. Thank
you.
Madam President, on the bill.
THE PRESIDENT: On the bill,
Senator. You may proceed.
SENATOR HEVESI: Thank you, Madam
President.
I applaud Senator Balboni for this
legislation and for his lengthy explanation.
I would again suggest that at the same time
2278
that we're -- undeniably, this bill should
pass. The Assembly should pass this
legislation also so it should become law.
Prosecutors should have the appropriate tools.
And if what Senator Balboni just
suggested is true, that a great majority of
the cases are being pled out, that's a
tremendous problem. And on the ground level,
it's even more of a problem than the problem
which I've articulated, which is that we're
lenient upon conviction. Okay?
So now, if this is accurate and we
pass this legislation, we can start racking up
the number of aggravated unlicensed operation
convictions that hopefully will result in
individuals getting additional penalties.
So this was educational for me
today. Now -- see, before, I was under the
mistaken presumption that when we said
somebody's license has been suspended seven or
eight times, I was only mentally
conceptualizing the fact that they had been
convicted and prosecuted successfully for
aggravated unlicensed operation, where nine
suspensions could have resulted from three or
2279
four different incidents.
We need to tighten up here
regardless. This is a good bill. But I think
it also highlights the fact that even if we do
give prosecutors the tools that Senator
Balboni proposes to do, to give additional
convictions for aggravated unlicensed
operation, you still have 13 opportunities to
be successfully prosecuted for aggravated
unlicensed operation before felony penalties
kick in.
I submit to you that that is the
real problem. It doesn't diminish in any way
the problem that Senator Balboni brings up
today. And in many ways, Senator, knowing
what I now know, your legislation is going to
be more efficacious in combating this problem
than the bill we passed earlier today, though
both were steps in the right direction.
And the Assembly should act on
this. And I don't -- you know, let's be
bipartisan here. We've got to do something
about this. You know, when you have
individuals who are driving around, especially
with the correlation that Senator Balboni laid
2280
out for us between license suspensions or
revocations and fatal accidents, I mean, the
numbers are blindingly clear. I don't know
why we haven't acted any sooner.
So today with this action,
hopefully we'll give prosecutors the tools we
need. But we've got to go the additional
step.
And I was asked the question before
what would I propose. I would propose the
following. That given the tools that Senator
Balboni's legislation gives to prosecutors,
after the first conviction for aggravated
unlicensed operation in the third degree, you
have the penalties that you have. The next
offense should automatically be unlicensed
operation, aggravated unlicensed operation in
the second degree. A misdemeanor, but of a
higher degree.
And with the third -- because these
are not suspensions from the failure to pay
fines, these are the consequence of you having
been stopped in your automobile without a
valid license. And on the third one, it's an
E felony. One, two, three. Not that you have
2281
to wait until the 14th offense where you were
stopped driving for there to be felony
penalties. I mean, let's get serious already
on this issue. This is outrageous.
So I support Senator Balboni's
bill. And let it be a call out to everybody,
in this chamber and in the other chamber and
to the Governor and to the press, to get
active on this issue, that we're going to be
completely intolerant of individuals who
flagrantly flaunt the law and drive with
license suspensions and revocations. And
particularly those who have done it after
they've already been convicted of aggravated
unlicensed operation. I mean, enough is
enough already.
Madam President, I support this
legislation. I commend Senator Balboni. And
let a call go out to everybody, we've got to
take action on this and save people's lives.
THE PRESIDENT: Senator Duane.
SENATOR DUANE: Thank you, Madam
President. On the bill.
I know that today the sponsor of
this legislation, you know, has put forward
2282
his bill, and I certainly appreciate what it
is that he's trying to achieve. But I still
think that because his bill presumes that a
driver with three suspensions would be
presumed to have knowledge of the suspensions,
and I find that troubling.
Senator Marcellino's legislation
says two as opposed to three suspensions will
cause someone to be charged with aggravated
unlicensed operation. I voted for Senator
Marcellino's bill. I'm not going to vote for
Senator Balboni's bill.
I think that there is something
terribly wrong, though, in that the sponsors
of each of the legislation, as I heard it,
were indicating that they didn't really know
enough about the other legislation to comment
on it. And I think maybe that's the flaw of
our committee system, that both of these bills
were not fully explored in the committee, or
whatever happened there, because in fact I
think that's where this should have occurred.
For both of those bills to have
arrived on the floor at the same time I just
think is wrong and, frankly, embarrassing to
2283
this chamber. I think that we would need to
know precisely how those two bills would work
together or find a way to combine those two
bills into one bill, or perhaps put these
together with other pieces of legislation on
these issues and make a package of legislation
that we could have more fully explored in
committee and then here on the floor.
I don't think it's any big deal
that, you know, we made an error or there's
something wrong in the way these came to the
floor or that it's, you know, a terrible thing
that two authors of legislation didn't really
know that much about each other's legislation.
Mistakes happen. Confusions sometimes happen.
I don't think we should be afraid to admit
that that's happened. I think one of the most
generous things that a person can do, and most
gentlemanly or ladylike things that a person
can go is to acknowledge that there's a
mistake and try to use that to benefit all of
us, and in this case to benefit the State of
New York legislatively.
I am just going to add a little bit
as to why I think that Senator Balboni's
2284
legislation about the expectation or just the
flat-out fact that someone is supposed to have
knowledge of suspensions. Yesterday's
Newsday, which I don't always read, but I did
happen to read it yesterday, has a very
lengthy article about a DMV making horrendous
mistakes about license suspensions.
Granted, it's about Suffolk County
and not Nassau County. But still, I think
that this should be happening throughout the
state. Senator Lachman questioned what would
happen if someone was pulled over. And in
fact, something terrible and wrong would
happen due to mistakes that would be made by
the DMV.
So again, while I voted in favor of
Senator Marcellino's bill, I am disturbed
about this presumption that someone would know
about their suspensions and other charges.
Because people move, and the DMV makes
mistakes. And I think that we need to factor
that in when we look at what's happening with
the legislation on the floor today.
I don't think that there's a
perfect remedy for how it is that we can
2285
address the issues or the discrepancies
between pieces of legislation which come to
the floor. I do think we could all work a
little bit harder and look at the legislation,
especially when they come to us on the same
day, to see how they impact on each other, and
certainly to try to address that. I mean,
it's so obvious if they arrive here on the
floor at the same day and just one calendar
number apart.
But that being said, that didn't
happen today. But we can acknowledge that we
should have seen their impact on each other
and try to remedy that, and I hope that we'll
be able to do that in the future.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Onorato.
SENATOR ONORATO: Mr. President,
will the sponsor yield to a question, Senator
Balboni?
SENATOR BALBONI: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR ONORATO: Senator
2286
Balboni, we've been hearing on both of these
bills regarding suspended licenses, operating
a vehicle aggravated with a suspended license.
SENATOR BALBONI: Right.
SENATOR ONORATO: How does it
differentiate -- there's two parts to this -
with an unlicensed driver who had never been
issued a license? Because we know we have so
many of these people. What is the difference
from the penalties between an unlicensed
driver who had never received a license
committing these very same acts?
And the second part of the question
is you made a mention before that you wouldn't
be so presumptuous as to know how a police
officer would act if they stopped an
individual motorist that had a great many
suspensions or revocations or whatever.
What could they be authorized to
do? Could they be authorized not only to
issue a summons, could they arrest him on the
spot? Tow their vehicle? What would the
police officer have the authorization to do
under these circumstances?
SENATOR BALBONI: Senator
2287
Onorato, you are giving me way too much
credit. You're asking about several different
sections of the law that I am unaware of.
SENATOR ONORATO: They're all
under 511.
SENATOR BALBONI: No, they're
not. And if you read them, you'd see that
they aren't.
And therefore, since it's outside
the purview of this particular bill, I am
unable to answer these questions.
But if you want to get together
later for a cup of coffee, that's fine too.
SEMATOR ESPADA: Mr. President.
ACTING PRESIDENT MEIER: Senator
Espada.
SEMATOR ESPADA: Thank you very
much. On the bill.
I'm not a lawyer, I'm a layperson.
But one of the tragedies that was attached to
the explanation or the need for this bill took
place in my district. Not too long ago a
constituent, Ms. Chambers, came to me, and
essentially her only daughter was waiting at a
bus stop when someone who subsequently was
2288
found out to have been driving with a
suspended license ran her over, killed her
only daughter.
I'm sitting here and I'm trying to
crystallize my thoughts and my feelings as to
how I would vote on this bill. And I keep
coming back to the district attorney did not
charge, for reasons that have to do with facts
and evidence in the case, manslaughter or even
a higher crime. The bottom line was that at
the end of the day, there was indeed a plea,
and the woman lost her only daughter to
someone who was driving an unlicensed vehicle.
And as I try to remove my feelings
from this matter, I keep coming back to the
core of any individual's presumption of
innocence. Because once we start, because of
emotional reasons, because of tragedies that
are essentially irrelevant to the issue at
hand, we strip away at a very fundamental
right that anyone charged with a crime must
count on.
And so it is because of the
principles of law that I must vote against
this. Because with the current law, if the
2289
district attorneys were given more resources,
certainly the present law -- and people in my
community, I could speculate -- would
certainly find reason to impose the highest
penalties on someone that would do such a
thing if given the opportunity to hear all of
the evidence.
But for the state to walk in with
that kind of presumption and for citizens in
this state to be stripped of their presumption
of innocence I think is a big mistake.
Therefore, I will be voting in the
negative.
ACTING PRESIDENT MEIER: Senator
Paterson.
SENATOR PATERSON: Mr. President,
I'm going to vote in favor of this bill, with
just a suggestion to the sponsor who cited
some pretty grave circumstances that came as a
result of this bill's perhaps failure to pass
in the past or the fact that we didn't think
of it in the past.
A family of three being killed by a
person who had 28 suspensions on their license
is outrageous. I just felt that Senator
2290
Hevesi, who certainly can speak for himself,
and I offered some suggestions about the
people in good faith, some suggestions that
may have even gone further than what the bill
intended.
I don't think that we were
intending to in any way belittle the Assembly
and why the Assembly is taking the actions
that it does -- that's not either of our
intent -- but just to point out what the value
of the bill is.
The reason why bills get passed or
don't get passed or why issues don't come out
of committee or aren't heard on the floors I
think are a responsibility that all of us, 211
legislators, had better think about and better
take seriously. And maybe the reason that
there have been so many discussions about
rules and so some disagreement about procedure
are as a result of the fact that we have
blithely blamed everything on each other
rather than trying to find a common ground.
And this would be one of the pieces
of legislation that we could do that on.
There were some that just passed last year
2291
that we had introduced in this house, couldn't
get the light of day, and had passed in the
other house time after time, and only last
year did we actually only address them.
So I don't think we should piously
look at ourselves at having all the answers
when we can work together to find a common
answer.
ACTING PRESIDENT MEIER: Senator
Hassell-Thompson.
SENATOR HASSELL-THOMPSON: Thank
you, Mr. President. On the bill.
Earlier today we paid tribute to a
gentleman named Gus Bliven, who I did not
know. But we paid tribute to him, as I
listened, because of the fairness with which
he wrote the stories that he wrote and the way
he reported what happened in these chambers.
And it would be very unfortunate
for me that Gus Bliven is not here today so
that on a nine byte the papers will not record
that I voted against this bill in an arbitrary
way. Because the papers will never indicate
the kind of debate and discussion that occurs
when these bills are put on the floor.
2292
I certainly understand very
clearly, at least in part, the attempt of my
colleague Senator Balboni to pass this bill.
And there are certainly aspects of it that
make it more than worthy. But there is a
portion of this bill that makes me very
disturbed. And while, as it is my
responsibility, obviously, to not make it more
difficult for the DA to do his job, I have a
constituency for whom I also have a
responsibility.
And that constituency should not go
into court with me having voted for a
presumption, as opposed to proof, when in fact
they have come before the courts for a
criminal act. There is nothing in the
discussion today that makes me believe that
giving the DA the tool of presumption will not
take away the constitutional rights of the
people that I fight very hard to protect in
this state.
And so therefore, Senator Balboni,
I cannot vote for your bill. I can be very
understanding of the attempt that we all are
trying to create here. But I have this
2293
sensation that there are attempts and there
are acts that happen in this place that
whittle away at the constitutionality of the
people that I serve.
And so under those circumstances, I
think that the bill is flawed from that
perspective, and therefore I cannot support
you.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect on the 90th day.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Yes, Mr.
President, I'm going to explain my vote.
I'm going to vote for the
legislation. I understand the intent. I do
have some reservations with regard to the
possibility that this bill is one of those
kinds of bills, like the safety belt law, that
the full intent is to protect lives but, on
2294
the other hand, it has led to or it has fed
into the problem of racial profiling as it
relates to traffic stops on highways and roads
in our state and across the nation.
So with that reservation, I'm
voting yes on this legislation. And I
certainly hope that we're not doing something
that supports the problem or that feeds into
the problem of racial profiling.
Thank you. I'm voting yes.
ACTING PRESIDENT MEIER: Senator
Montgomery will be recorded in the
affirmative.
Senator Marcellino.
SENATOR MARCELLINO: Mr.
President, I'm going to vote yes on this bill,
as I did on my own bill earlier. The debate
that we've had in this house, it's a good
debate. Perhaps somewhat lengthy, but a good
debate. It brought out a lot of interesting
areas for discussion.
I point to the other chamber. And
I welcome, my colleagues across the aisle,
your support. The other chamber has not
engaged at all in this debate. The other
2295
chamber has not brought up this very, very,
very serious topic in committee, on calendar,
and in debate on the floor. They will not
give it a chance.
You cannot say it's even because it
was sponsored by a Minority member over there,
because it's not. It's sponsored by a
Majority member in the other house, and they
still do not see fit to debate this measure or
anything like it.
I welcome and urge you to join us,
speak to your colleagues on the other side in
the other chamber, and please let's bring this
bill out. Because I think this is important.
Senator Balboni's statistics of people who are
being killed and maimed by people who drive
with suspended licenses is a disgrace that
must be attended to and must be talked about
and must be ended once and for all.
So I welcome your help. I vote
aye.
ACTING PRESIDENT MEIER: Senator
Marcellino will be recorded in the
affirmative.
Senator Espada, to explain his
2296
vote.
SEMATOR ESPADA: Indeed, to
explain my vote. Thank you, Mr. President.
I just wanted, by way of
explanation, to respond to this institutional
paralysis. And we keep pointing fingers of
blame this way and that way.
You know, I must tell you, and I'm
dead serious, I think that perhaps one of the
ways is for us to lead from this chamber
together. And the way that, to us, what that
would mean, to translate it to something
practical, is to have someone as knowledgeable
as Senator Hevesi or others that have spoken
eloquently on this bill be the sponsors of the
bill.
I think that we need to break
through that logjam, by not pointing to the
other side, but we're really taking leadership
and having democracy rein supreme here in very
practical ways. Clearly the knowledge is
there, clearly the intent is shared, the
purposes are clear. Even though I disagree,
as I will vote no on this bill, disagree with
it, I think as to process and other things of
2297
substance that we could come together on, I
think that's what we have to do.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Espada will be recorded in the affirmative.
Senator Balboni, to explain his
vote.
SENATOR BALBONI: To explain my
vote.
You know, I hate when this happens.
We have this great debate, and I lose more
votes on the bill than I had the year when it
just went through on noncontroversial. And
that always works that way.
But I just must rise and thank
everybody for their concern. But it's always
amazing to me, I have one Senator who laments
we didn't bring these two bills together even
though they're completely different and it's
two different sections of the law -- and if he
took the time to read it, he might see that.
Another Senator says, well, I'm not the right
sponsor because I don't know enough about the
issue.
But, you know, notwithstanding
2298
that, here is the reality. We can sit and
talk about freedom in this chamber, freedom in
that chamber. An idea is an idea. A
constituency is a constituency. And the
people who we represent deserve the best we
can do.
So notwithstanding the
protestations that we don't have to point to
the other house when we don't move on an issue
in the house, the Assembly is the first one
who points the finger here and says that we
are not doing our job.
Well, baloney, ladies and
gentlemen. You've seen fit to support this.
Take -- all of us together take the idea, the
idea not for us but for the people we
represent, and let's make it a reality.
I vote aye, Mr. President, thank
you.
ACTING PRESIDENT MEIER: Senator
Balboni will be recorded in the affirmative.
With regard to Senator Espada,
Senator Espada will be recorded in the
negative.
SEMATOR ESPADA: If you could,
2299
please, in the negative.
ACTING PRESIDENT MEIER: Yes,
Senator, thank you. In the negative.
Senator Stachowski.
SENATOR STACHOWSKI: Mr.
President, to explain my vote.
Being rather full from these two
debates, having baloney, potato chips, and
apples, I'm going to vote for this bill also,
even though it's led Senator Balboni to drink
way too much coffee.
(Laughter.)
SENATOR STACHOWSKI: But I think
it's a good bill. I think it helps to get at
some of the problems we have with people
driving with suspended licenses.
And hopefully this year, rather
than all the previous times, hopefully it will
be taken up in the other house and we'll have
a law to start addressing this problem in
reality and not just in proposed legislation.
I vote aye.
ACTING PRESIDENT MEIER: Senator
Stachowski will be recorded in the
affirmative.
2300
The Secretary has asked if I could
ask the negative votes to please raise your
hands and be counted.
THE SECRETARY: Those recorded in
the negative on Calendar Number 92 are
Senators Duane, Espada, Gonzalez, and
Hassell-Thompson. Also Senator A. Smith.
Ayes, 52. Nays, 5.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Gonzalez, why do you rise?
SENATOR GONZALEZ: Mr. President,
I'm requesting unanimous consent to be
recorded in the negative on Calendar Number
89.
ACTING PRESIDENT MEIER: Without
objection, Senator Gonzalez will be recorded
in the negative on Calendar 89.
Senator Morahan.
SENATOR MORAHAN: Mr. President,
I move that we adjourn until Monday,
March 19th, at 3:00 p.m., intervening days
being legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
2301
Monday, March 19th, 3:00 p.m. Intervening
days will be legislative days.
(Whereupon, at 2:40 p.m., the
Senate adjourned.)